Delhi High Court: Asha Menon, J. denied relief sought by ‘TV Today Network’ ‘plaintiff ‘on allegations of copyright infringement, defamation and commercial disparagement. The allegations are against a Digital News Platform, namely, ‘Newslaundry’ (‘defendant’) for publishing various videos and articles containing false, malicious, defamatory and derogatory information on their website as well as on various social-media platforms. The Court found most of the issues were question of fact to be triable by the Trial Court and the principles on which the injunction must be granted namely prima facie case, irreparable loss and injury and balance of convenience tilts in favour of defendants.
The plaintiff is a Company incorporated under the Companies Act, 1956 and operates prominent television channels, namely, “AajTak”, “AajTak HD”, “India Today Television” and “Good News TV” and is part of the prestigious “INDIA TODAY GROUP” which was established in 1975. Its business interests are in broadcasting, publishing, e-commerce, etc., through its constituent companies, like Living Media India Limited.
The application was filed by the plaintiff under Order XXXIX Rules 1 & 2 Civil Procedure Code (‘CPC’) filed by the plaintiff along with the suit for mandatory and permanent injunction as also for damages. The allegations alleged are that the defendants 1 to 9 have, by their various programmes on their social-media platforms and through their Digital News Platform, namely, “Newslaundry”, from its website, having domain name www.newslaundry.com, had tarnished its reputation accompanied with the infringement of the copyrighted content of the plaintiff. According to the plaintiff, the defendants have ridiculed and defamed the plaintiff company, its news channels, its employees and Management, and have published various videos and articles containing false, malicious, defamatory and derogatory information on their website as well as on various social-media platforms.
Commercial Dispute or Not?
On the primary question raised before the Court whether the present suit is a commercial suit or not, as the allegations are not only pertaining to copyright infringement but also of defamation, the Court noted that relief in respect of copyright violations can be sought only before the commercial court in view of the clause (xvii) of Section 2(1)(c) Commercial Courts Act, 2015. If the other reliefs claimed by the plaintiff arise|| out of such intellectual property rights, clearly the commercial court would have the jurisdiction to try the suit. ‘Arising out of’, on a plain reading, would cover situations such as in the present case, where the reliefs are so closely intertwined, where disparagement is alleged by the very use and portrayal of the copyrighted content of the plaintiff by the defendants 1 to 9. Thus, it is concluded that the dispute at hand is a ‘commercial dispute’ and the commercial court has jurisdiction to try the suit.
The allegation is premised on the work of the plaintiff being covered as a “cinematographic film” involving visual and sound recording accompanying such visual recording, the Court noted that the present case would more appropriately be covered under “broadcasting rights”. Broadcast reproduction right, though limited for 25 years under Section 37(2) Copyright Act, 1957, prohibits the re-broadcast or reproduction of such programmes without license under Section 37(3) Copyright Act, 1957 during the subsistence of these special rights called broadcast reproduction rights. However, Section 39 exempts certain acts as not infringing the broadcast reproduction rights. In view of the language used, it would be akin to Section 52 Copyright Act, 1957, which also provides that certain acts would not be infringement of copyright. Both sections prescribe that use which amounts to “fair dealing” would not amount to infringement of either broadcast reproduction rights or copyright.
The Court further noted that the original creator being the first broadcaster (TV Today Network Limited, in the present case) would be vested with reproduction rights and no one else can reproduce it without license. The exception would be Section 39 Copyright Act, 1957 read with Section 52 Copyright Act, 1957. A T.V. news programme would, of necessity, relate to current events and current affairs. Criticism or review of such programmes would be both on content and the reporting of such current events and current affairs. Reporting would, obviously, entail the coverage of current events and current affairs in a particular manner and style, in keeping with the philosophy of the T.V. channel or social-media channel.
Thus, the Court held that whether to comment on the act of reporting itself would be covered under ‘criticism’|| or ‘review’ under Sections 52 and 39 of the Copyright Act, 1957 and would be protected against allegations of infringement is a question of fact to be decided by the Trial Court.
On the issue of whether there has been ‘fair dealing’ or not to determine infringement of copyright and broadcast rights, the judgment laid down in Super Cassettes Industries Limited v. Chintamani Rao, 2011 SCC OnLine Del 4712 is of importance. It held
The purpose – ostensibly or obliquely, should not be to ride piggy back on the work of another. The focus of attention, and interest of the producer/author of the work and the viewer/listener should not be the work of another, but the work created by the person who may, bona fide be using the work of another for the specific purpose of criticism or review of that work, or of any other work.
The Court however held that it is evident that when work that is subject to copyright or broadcast rights, is used, and a plea of infringement of those rights is raised in a suit, the defence of -fair dealing|| by use of excerpts is a plausible defense to such a plea which is a question of fact and has to be decided by the Trial Court.
Placing reliance on Reckitt Benckiser India Private Limited v. Hindustan Unilever Limited 2021 SCC OnLine Del 4896, in the context of comparative advertisements, the Court noted that Commercial Disparagement would occur when one player in the field derides a rival and belittles or discredits or detracts from the reputation of such a rival in respect of its products, services or business. While claiming to be the best, any statement about a competitor’s goods, which could be untrue or misleading and is made to influence or tend to influence the public, would amount to disparagement.
The Supreme Court held that ‘commercial speech’|| is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution as competitive advertisements are permissible as held in Tata Press Limited v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139.
Thus, the Court held that the programmes of the defendants 1 to 9 must not be showing the plaintiff’s programmers in poor light, asking viewers to stop watching the plaintiff’s channels while claiming their own to be the best. This, of course, will again be a question of fact as to whether commercial disparagement has occurred or not.
Three Cardinal Principles
When a court is to consider the grant or refusal of interim injunction, the court would have to consider three cardinal requirements, namely, prima facie case, irreparable loss and injury and balance of convenience, to be entitled to the injunctions as prayed for.
The Court concluded by stating that based on the facts presented before the Court it cannot be denied that a prima facie case|| is disclosed but the other two requirements of –balance of convenience and –irreparable loss and injury will need to be established before such injunction can be granted. Since defenses raised like fair dealing is based on facts, has to be decided during the trial. Furthermore, the extent of infringement or fair use for fair comment and criticism would also be a matter of trial as each video would have to be considered to determine whether the excerpts are significant to be outright copying or constitute fair use without infringement.
Thus, the Court held that the Trial Court would be in a better position to consider whether there has been misrepresentation of facts.
[TV Today Network v. News Laundry Media Private Limited, 2022 SCC OnLine Del 2233, decided on 29-07-2022]
Advocates who appeared in this case :
For TV Today Network: Mr. Hrishikesh Baruah, Mr. Pranav Jain, Ms. Radhika Gupta, Ms. Sowmya Shikhar and Mr. Kumar Kshitij, Advocates
For News Laundry Media Private Limited: Mr. Saurabh Kirpal, Senior Advocate with Mr. Nipun Katyal, Ms. Tahima Gaur and Mr. Nikhil Arora, Advocates for D-1 to D-9 Ms. Mamta Jha, Mr. Rohan Ahuja, Ms. Shruttima Ehersa, Ms. Riya Gupta and Mr. Vatsalya Vishal, Advocates for D-10/Google LLC Mr. Deepak Gogia and Mr. Aadhar Nautiyal, Advocates for D-12/ Twitter Inc.
*Arunima Bose, Editorial Assistant has reported this brief.