Before: Team Code T-6

ST GALGOTIAS UNIVERSITY NATIONAL MOOT COURT COMPETITION - 2018
11st GALGOTIAS UNIVERSITY NATIONAL MOOT COURT COMPETITION-2018
TEAM CODE T-6
Before
THE HON’BLE HIGH COURT OF KELJI
ORIGINAL WRIT JURISDICTION
WRIT PETITION NO………/2018
UNDER ARTICLE 226 OF

THE CONSTITUION OF SAGER
IN THE MATTER OF
THE ROLLA FILMS………………………………………………….PETITIONER
versus
1. GOVERNMENT LAW UNIVERSITY, KELJI

&
2. FLORENCE PUBLIC SCHOOL………………………..….RESPONDENTS
MEMORANDUM ON BEHALF OF THE PETITIONER

DRAWN AND FILED ON BEHALF OF THE PETITIONER
MEMEORIAL ON THE BEHALF OF THE PETITIONER

TABLE OF CONTENTS
I. TABLE OF ABBREVIATIONS……………………………………………2-3
II. INDEX OF AUTHORITIES…………………………………………..........4-5
III. STATEMENT OF JURISDICTION……………………………………….6
IV. STATEMENT OF FACTS………………………………………………….7
V. STATEMENT OF ISSUES………………………………………………….8
VI. SUMMARY OF ARGUMENTS……………………………………………9
VII. ARGUMENTS ADVANCED……………………………………………….10-19
VIII. PRAYER………………………………………………………………………20
1
MEMORIAL ON BEHALF OF THE PETITIONER
TABLE OF ABBREVIATIONS
S.NO ABBREVIATIONS FULL FORMS
1. & And
2. § Section
3. ¶ Paragraph
4. A.I.R. All India Reporter
5. Art. Article
6. Bom. Bombay
7. Co. Company
8. Ed. Edition
9. FPS Florence Public School
10. GLU Government Law University
11. HC High Court
12. Hon’ble Honourable
13. Id. Ibidem
2
14. Inc. Incorporated
15. IPR Intellectual Property Rights
16. Ltd. Limited
17. M.P. Madhya Pradesh
18. No. Number
19. Pg. Page
20. Pvt. Private
21. r/w Read with
22. S.C.C. Supreme Court Cases
23. TRIPS Trade-Related Aspects of Intellectual

Property Rights
24. v. Versus
3
INDEX OF AUTHORITIES
CONSTITUTION REFFERED
1. Constitution of India, 1950
STATUTES
1. Cinematograph Act, 1952
2. Copyright Act, 1957
3. Right to Free & Compulsory Education Act, 2005
CASE LAWS
1. Ajay Hasia v. Khalid Muzib Sheravardi, (1981) 1 S.C.C. 722
2. Arindam Basu v. Amal Kumar Bose (2006) 4 C.H.N. 813
3. A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani, (1961) A.I.R SC 1506
4. Bhailal Jagadish v. Additional Deputy Commissioner (1953) A.I.R Nag 89
5. Deshmukh and Co. (Publishers) Pvt. Ltd. v. Avinash Vishnu Khandekar, (2005) 3 Mah.
L.J. 387
6. Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd. (SCIL),
(2008) 9 SCALE 69
7. Garware Plastics and Polyester Ltd. v. Telelink (1989) 91 Bom. L.R. 139
8. Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (1984) (2) SCC 534
9. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539-562 (1985)
10. Indian Performing Right Society Ltd. v. Aditya Pandey, (2011) 3 M.I.P.R. 19
11. Krishna Gopal Ram Chand Sharma v. Punjab University, (1996) A.I.R. Punj 34
12. Loew's Incorporated v Columbia Broadcasting System, 131 F. Supp. 165 (S.D. Cal. 1955)
13. RG Anand v. Delux Films, (1978) 4 S.C.C. 118
14. S.P. Gupta v. Union of India, (1982) A.I.R SC 149
15. The Chancellor Master & Scholars of The University of Oxford v. Narendera Publishing
House, (2016) 233 D.L.T. 279
16. Twentieth Century Fox Films Corp. v. Zee Telefilms Ltd., (2012) 2 M.I.P.R. 377
17. Umesh Chandra Sinha v. V.N Singh, (1968) A.I.R. Pat. 3
18. University of Madras v. Shantha Bai, (1954) A.I.R Mad 67
19. Veerappa Pillai v. Raman and Raman Ltd., (1952) S.C.J. 261
4
BOOKS
1. DANIEL GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND

ANALYSIS (4th ed., Thomson Reuters, 2012)
2. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4th ed., Universal Law
Publishing, 1993)
3. M.P. JAIN, INDIAN CONSTITUTIONAL LAW (8th ed., Lexis Nexis, 2018)
4. N.S. GOPALAKRISHNAN & T.G. AGITHA, PRINCIPLES OF INTELLECTUAL
PROPERTY (2nd ed., Eastern Book Company, 2014)
5. P. NARAYANAN, INTELLECTUAL PROPERTY LAW (3rd ed., Eastern Law House,
2017)
6. ROSEDAR SRA, INTELLECTUAL PROPERTY RIGHTS (2nd ed., Lexis Nexis, 2016)
7. SUMEET MALIK, INTELLECTUAL PROPERTY RIGHTS MANUAL (1st ed., Eastern
Book Company, 2013)
8. V.N. SHUKLA, CONSTITUTION OF INDIA (13th ed., Eastern Book Company, 2017)
WEBSITES
1. https://home.heinonline.org/
2. https://www.justia.com/
3. http://www.manupatrafast.in/
4. https://spicyip.com/
5. https://www.scconline.com/
6. https://scholar.google.co.in/
INTERNATIONAL AGREEMENTS & CONVENTIONS

1. Agreement on Trade-Related Aspects of Intellectual Property Rights
5
STATEMENT OF JURISDICTION
It is most humbly submitted that the petitioner has approached the Hon’ble High Court of
Kelji under Article 226 of the Constitution of Sager for the infringement of their copyright by
issuing the writ of mandamus in the matter of The Rolla Films v. Government Law
University, Kelji and Florence Public School. It sets forth the facts and arguments on which
the claims are further based.
Article 226 of the Constitution of Sager reads as follows-

“226. Power of High Courts to issue certain writs –
(1) Notwithstanding anything in Article 32, every High Court shall have powers,
throughout the territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories’ directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those
territories.”
6
STATEMENT OF FACTS
1. Sager, a developing country, has witnessed increased proliferation of drugs and narcotics
among the youth (10-22 years). The Public Health & Law (PHL) Centre of Government
Law University Kelji, took the initiative of assisting the government school children to
tackle drug problems through an ongoing project, “Coming Back to Life”, involving few
teachers and students. In October, 2017, the PHL Centre screened a cinematograph film
Narcoz specifically for students from 5th-8th standard of Florence Public School, and was
declared a must watch by critics for those struggling with drug abuse.
2. The producers, Rolla Films released the cinematograph film only in English speaking
countries, including the home country Rangland, however, they did not release the
cinematograph film in Sager since the market wasn’t profitable enough and the screening
rights were priced expensively at 10 lakh Sager rupees per screening.
3. GLU downloaded the cinematograph film from the website www.kit-torrent.com (peer-to-
peer decentralized site). Post screening, the FPS students were trained by their teachers to
prepare a play based on the cinematograph film Narcoz and was performed across
government schools in Kelji. The cinematograph film screening was reflected as a
community outreach activity by GLU whereas the play performance as an extra-curricular
activity, for both of which the annual charge was 5% of the total student fee.
4. The domestic laws of Sager are pari materia with India. Also, Sager and Rangland are
both parties to the TRIPS Agreement. Rangland has a robust IP regime whereas Sager is
one of the worst IP “performers” among the TRIPS signatories. Sager got under immense
diplomatic pressure to overhaul its IP laws after the Narcoz screening incident. In July
2018, Sager banned the downloading of files from the website and blocked it, and
amended its Cinematograph Act, 1952 which equated the downloading of unauthorized
cinematograph film with copying and thus a criminal offence. GLU and FPS upon being
questioned by the IP enthusiasts if they would continue to fight drug abuse by using
cinematograph films such as Narcoz replied that Sager IP laws have enough space to
allow such educational & socially beneficial activities despite new bans and amendments.
5. Further, they jointly declared the next cinematograph film screening and play
performance in January, 2019. Following all this, The Rolla Films have approached the
Kelji High Court seeking appropriate remedies and impose new penalties against the
conduct of GLU, Kelji and FPS as per applicable laws.
7
ISSUES RAISED
I. WHETHER THE WRIT PETITION FILED BY THE PETITIONER IS

MAINTAINABLE BEFORE THE HON’BLE COURT?
II. WHETHER SCREENING OF THE CINEMATOGRAPH FILM BY THE FIRST

RESPONDENT INFRINGES THE COPYRIGHT OF THE PETITIONER?
III. WHETHER PERFORMANCE OF THE PLAY BY THE SECOND RESPONDENT IN

GOVERNMENT SCHOOLS IN KELJI INFRINGES THE COPYRIGHT OF THE
PETITIONER?
8
SUMMARY OF ARGUMENTS

It is humbly submitted before the Hon’ble Court that the writ petition filed is maintainable
under Article 226 of the Constitution of Sager as the scope of invoking Article 226 is wider
than Article 32. The writ petition is also maintainable against the respondents as they fall
within the ambit of “other authorities” under Article 12 of the Constitution of Sager and there
is no bar in invoking the same notwithstanding the availability of alternative remedies under
the Copyright Act 1957.

It is humbly submitted before this Hon’ble Court that the first respondent is liable for
infringement of the copyright of the petitioner without obtaining a license for the same as the
petitioner has certain exclusive rights conferred under the Copyright Act. The act of the first
respondent in obtaining a copy of the film from the internet and communicating the film to
the public, i.e. the students of the second respondent, amounts to infringement of the
copyright of the petitioner.
III. WHETHER PERFORMANCE OF THE PLAY BY THE SECOND RESPONDENT IN

GOVERNMENT SCHOOLS IN KELJI INFRINGES THE COPYRIGHT OF THE
PETITIONER?
It is humbly submitted before the Hon’ble Court that the performance of the play by the
second respondent infringes the copyright of the petitioner under the Copyright Act. The play
is inspired and derived from the cinematograph work of the petitioner.
9
ARGUMENTS ADVANCED

1. It is humbly submitted before the Hon’ble Court that the writ petition filed is maintainable
under Article 226 of the Constitution of Sager as the scope of invoking Article 226 is wider
than Article 32 (1). The writ petition is also maintainable against Respondents as they fall
within the ambit of “other authorities” under Article 12 of the Constitution of Sager (2). There
is no bar in invoking the same because of the presence of an alternative remedy (3).
I.1 SCOPE OF ARTICLE 226 OF CONSTITUTION OF SAGER
1. It is humbly submitted that the writ petition is maintainable even where there has been no
violation of the fundamental rights of the petitioner as Article 226 extends the powers of the
Hon’ble Court to issue writs, orders or directions to enforce not only fundamental rights but
also “any other legal right.”1 The Supreme Court has recognized that copyright falls within the
ambit of Article 300-A i.e., “property” and is a constitutional right.2 In Arindam Basu v. Amal
Kumar Bose, the Hon’ble Calcutta High Court held that:
“If one's property is taken away by the action of the State without the
authority of law...His remedy would be under Article 226.”3
2. Notwithstanding the fact that the petitioner is incorporated outside Sager, the writ jurisdiction
is amenable to protect the legal rights of the petitioner with regard to the copyrightable work,
i.e. the cinematograph film Narcoz. The Copyright Act of 1957 protects primarily the
copyrightable works created by citizens of Sager or created in Sager 4 but by virtue of both
Sager and Rangland being signatories of the TRIPS Agreement, the International Copyright
1
2 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 1579 (4th ed. 2015). See also Veerappa Pillai v.
Raman and Raman Ltd., (1952) S.C.J 261 (India), S.P. Gupta v. Union of India, (1982) A.I.R SC 149 (India),
Bhailal Jagadish v. Additional Deputy Commissioner, (1953) A.I.R Nag 89 (India).
2
Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd., (SCIL), (2008) 9 SCALE 69
(India).
3
Arindam Basu v. Amal Kumar Bose (2006) 4 C.H.N. 813 (India).
4
Copyright Act, 1957, Act no. 14, Acts of Parliament, 1957 (India), § 40.
10
Order of 1999 issued by the Central Government of Sager permits works created by non-
citizens to equally enjoy the rights conferred on works created by citizens of Sager.5
3. Therefore, in light of the above submissions, the petitioner has locus standi to invoke the
writ jurisdiction of this Hon’ble Court for the violation of its legal right of copyright which
is protected under provisions of the Copyright Act, 1957.
I.2 RESPONDENTS AS OTHER AUTHORITIES UNDER ARTICLE 12
4. It is submitted that this petition seeking the writ of mandamus is filed on the grounds that
the respondents namely Government Law University, Kelji (“hereinafter referred to as
GLU”) and Florence Public School (“hereinafter referred to as FPS”) fall within the ambit
of “other authorities” of the State under Article 12 of the Constitution of Sager who have
infringed the legal right or copyright of the petitioner. Educational institutes such as
government universities and schools come within the ambit of ‘other authority’ under
Article 12.6
5.In the instant case, the respondents are bodies created for the purposes of performing and
promoting the educational interests of the students vulnerable to drug abuse. Therefore the
respondents are exercising governmental functions on behalf of the Central and the State
government and they are “the State” under the category of ‘other authority’. 7 It is also
submitted that the factors for determining as to whether a body can be categorized as an
instrumentality of the State are, the financial assistance of the State and the function of the
body are of public importance and related to governmental functions.8
6. The Petitioner seeks to draw attention of the Hon’ble Court to the various acts of the
Respondents which have affected the rights of the Petitioner. The first Respondent is
communicating to the public a copy of the copyrighted work of the Petitioner on a
commercial basis obtained from a peer-to peer file sharing site on the internet without being
granted a license from the petitioner and exhibiting an uncertified copy of the
cinematograph film in all the government schools, without certification from the Board of
Film Certification as mandatorily required under the provisions of Cinematograph Act,
5
International Copyright Order, 1999, para. 3
6
Umesh Chandra Sinha v. V.N Singh, (1968) A.I.R Pat 3, University of Madras v. Shantha Bai, (1954) A.I.R
Mad 67, Krishna Gopal Ram Chand Sharma v. Punjab University, (1996) A.I.R. Punj 34 (India).
7
INDIAN CONST. art. 12
8
Ajay Hasia v. Khalid Muzib Sheravardi, (1981) 1 S.C.C. 722 (India).
11
1952.9 The second respondent has created a play based on the copyrighted work of the
petitioner and the same has been performed across different schools in Kelji. Therefore,
both the respondents have infringed the rights of the petitioner.
7. Therefore, in light of the above submissions, the Court can direct the respondents by a writ
of mandamus under Article 226 directing the respondents to comply with the provisions of
the Copyright Act.
I.3 PRESENCE OF ALTERNATIVE REMEDIES IS NO BAR
8. It is humbly submitted that the writ petition cannot be barred due to the existence of
alternative remedies available to the petitioner.10 Under the Copyright Act of 1957 there
exist both civil as well as criminal remedies available to the petitioner. While the former
permits the petitioner to approach the civil court for the remedies against the infringement
of its copyrighted work11, i.e. the cinematograph film, Narcoz, the petitioner can also
approach the Judicial First-Class Magistrate/Metropolitan Magistrate under § 70 of the
Copyright Act to register a criminal complaint against the alleged infringers of its
copyright.12
9. In the present case it is the acts of infringement of the petitioner’s copyright committed
by the instrumentalities of the State which are duty bound to protect and thereby not
infringe upon the above said rights of the petitioners. Moreover, even after the
government has amended its domestic laws in conformity with the TRIPS Agreement, the
respondents have continued their acts which infringe the copyright of the petitioner.
10. It is humbly submitted that the petitioner seeks to invoke the writ jurisdiction of this
Hon’ble Court as the said remedy is an expeditious remedy against the acts of
instrumentalities of the State. In the contemporary modern welfare state system where the
government works on a large scale, writ jurisdiction allows the courts to control the
excesses of the executive than other remedies available under the normal court systems.13
11. It is further submitted that the TRIPS Agreement, to which Sager is a party, requires
Sager to provide effective and expeditious remedies for the domestic enforcement of
9
Cinematograph Act,1952, Act no.37, Acts of Parliament, 1952, § 3.
10
A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani, (1961) A.I.R SC 1506 (India).
11
Copyright Act, supra n. 3, § 62.
12
Id. § 70.
13
MP JAIN, INDIAN CONSTITUTIONAL LAW, 424 (8th ed. 2018).
12
infringement of intellectual property rights.14 Effective and expeditious remedies are

based on effectiveness of action, including expeditious remedies to infringement as an
effective deterrent to prevent further infringement.15
12. Therefore, in the light of the above submissions, there is no bar to the petitioner to
approach the Hon’ble High Court for an appropriate, expeditious and less expensive
remedy against the acts of the respondents.

13. It is humbly submitted before this Hon’ble Court that the first respondent is liable for
infringement of copyright in the petitioner’s work in the form of cinematograph film
without obtaining a license for the same.16 Screening of the cinematograph film for the
students of the second respondent, amounts to communication of the copyrighted work to
the public.17 The act of the first respondent in obtaining a copy of the cinematograph film
infringes the exclusive rights of the petitioner with respect to the copyrighted work as the
downloading of a copy of Narcoz from the website www.kit-torrent.com constitutes an
illegal import of the copyrighted material into Sager by the first respondent.18
II.1 ABSENCE OF LICENSE OR AUTHORIZATION TO THE RESPONDENTS
14. It is submitted that a cinematograph film is a creative articulation of the underlying

literary, dramatic, artistic and musical works. Section 14 of the Copyright Act 19 extends a
bundle of rights to the owner of the copyright in relation to any work or a substantial part
of it. The petitioner as producer by virtue of being the first owner of the copyright has the
exclusive right to do or authorize the doing of anything which is covered by Section 14
with respect to a cinematographic film. Section 14(d) extends to the petitioner the right to
14
Agreement on Trade-Related Aspects of Intellectual Property Right, Art. 41(1).
15
DANIEL GERVAIS, THE TRIPS AGREEMENT-DRAFTING HISTORY AND ANALYSIS, 564 (4th ed.
1993).
16
Copyright Act, 1957, Act No. 14, Acts of Parliament, 1957, § 14(d)(i) & § 14(d)(iii).
17
Id. § 2(dd).
18
Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 S.C.C. 534 (India).
19
Copyright Act, supra note 22, § 14.
13
(a) make a copy of the film; (b) give a copy of the film for commercial rental or sale: (c)
or communicate the film to the public. The authorization of such a right by the owner can
be granted to any person either by issuing of a license as provided under Section 30, or by
the way of assignment of the copyright as per Section 18 of the Copyright Act. In the
present case the second Respondent was not granted any such license or assignment of
rights.
15. Under Section 51(a) of the Copyright Act, copyright in a work is deemed to be infringed
when “a person without the authority of the owner does anything (a) the exclusive right of
which is conferred upon the owner of the copyright, or (b) resorts to the commercial
exploitation of the work by communication of the work to the public.”20
II.2 SCREENING OF THE FILM AS COMMUNICATION TO THE PUBLIC
16. It is submitted that the act of the first respondent in communicating the film to the public,
i.e. the students of the second respondent, amounts to infringement of the copyright of the
petitioner. The term ‘communication to the public’ under the Copyright Act means
“making any work or performance available for being seen or heard or
otherwise enjoyed by the public directly or by any means of display or
diffusion other than by issuing physical copies of it, whether simultaneously or
at places and times chosen individually, regardless of whether any member of
the public actually sees, hears or otherwise enjoys the work or performance so
made available.”21
17. In Garware Plastics and Polyester Ltd. v. Telelink22 two criteria are laid down for the
purposes of determining as to whether a communication is to the public or not: Firstly,
the character of the audience must be analysed in relation to the owner of the copyright,
to the exclusion of any domestic audience. Secondly, whether such communication would
deprive the owner of any monetary gains out of his intellectual creation, which would
otherwise have accrued.
18. In the instant case, on analysing the character of the audience for whom Narcoz was
screened by the first respondent must be viewed as a portion of the public. The first
20
Id, § 51(a).
21
Copyright Act, supra n.16, § 2(ff).
22
Garware Plastics and Polyester Ltd. v. Telelink (1989) 91 Bom. LR 139 (India).
14
respondent screened the cinematograph film as a community outreach activity of its

students and the institution charged an annual fee from them which essentially amounts to
5% of the total fee payable during a year.
19. Under the Copyright Act the producer is the owner of the copyright in the cinematograph
film and thereby has the exclusive right to make a cinematograph film available for being
seen or heard or enjoyed by public, unless he “either assigns the whole or a part of his
rights to others to exploit economically for a lumpsum consideration or in the alternative,
he may licence all or some of his rights to others usually on the basis of a royalty
payment.”23 Therefore, the petitioner, being the producer of the cinematograph film
Narcoz, is deprived of earnings from his intellectual creation which would have otherwise
accrued to him as the owner of the copyright in the cinematograph film.
20. Thus, in light of the arguments hereinabove, it is most humbly submitted that the
screening of the cinematograph film by the first respondent infringes the exclusive rights
vested with the petitioner under the Copyright Act.
III. WHETHER PERFORMANCE OF THE PLAY BY THE SECOND RESPONDENT

IN GOVERNMENT SCHOOLS IN KELJI INFRINGES THE COPYRIGHT OF
THE PETITIONER?
21. It is humbly submitted before the Hon’ble Court that a conjoint reading of various
provisions of the Copyright Act, i.e., Section 2(ff), Section 14(d)(iii), and Section 51(a),
shows that the performance of the play by the second respondent amounts to copyright
infringement of the petitioner.
III.1 THE PLAY AS A COPY OF THE CINEMATOGRAPH FILM
22. The students of the second respondent were shown the cinematograph film Narcoz and
subsequently trained by their teachers to perform a play across various government
schools in Kelji. Section 2(m) of the Copyright Act defines ‘infringing copy’ in relation
to a cinematographic film as ‘a copy of the same made by any medium through any
23
Deshmukh and Co. (Publishers) Pvt. Ltd. v. Avinash Vishnu Khandekar, (2005) 3 Mah. L.J. 387 (India).
15
means.’24 The Oxford Dictionary defines the word ‘copy’ as “to make a similar or
identical version of; reproduce.”25 Therefore the infringement of a particular work is not
limited to the sphere of exact reproduction in the literal sense, “but also extends to the
different modes through which the particular work may be adopted, imitated.”26
23. In the present case, the film was communicated to the public, i.e. students in various
government schools by the second respondent through a play wholly inspired and based
on the cinematograph film thereby constituting an infringing copy of the film. On the
aforesaid basis, it is submitted that the performance of the original work, i.e. the
cinematographic film herein, without obtaining a license or assignment of the rights from
the Petitioner as producer would amount to creation of an infringing copy.
III.2 COMMUNICATION TO PUBLIC OF THE FILM AS INFRINGEMENT
24. Section 2(ff) of the Copyright Act defines the term ‘communication to public’ which has
a wide connotation. “Communication to the public implies that any work or performance
is made available to the public either through display or diffusion regardless of the fact
that such a public sees, hears or enjoys it.”27 There are two criteria for determining
whether or not the audience would constitute a public- (a) Firstly, the relationship
between the owner of the copyright and the audience can be so considered as to constitute
a public, to the exclusion of domestic audience comprising of family members; (b)
Secondly, whether the exhibition of such a work would whittle down the protection of the
copyright owner and deprive him of the monetary gains or profits of the respective
intellectual property.28
25. The present circumstances clearly satisfy both the criteria for the audience to be deemed
as public. In Indian Performing Right Society Ltd. v Aditya Pandey29, the term
‘communication to the public’ has been interpreted to mean not in abstract terms or in
isolation, but conjugately in the context of infringement of copyrighted work as defined
under Section 51. Furthermore, it is the character of the audience with respect to the
24
Id. § 2(m).
25
English Oxford Dictionary, https://en.oxforddictionaries.com/definition/copy (Sep. 19, 2018, 3:43 PM).
26
RG Anand v. Delux Films, (1978) 4 S.C.C. 118 (India).
27
Id. § 2(ff).
28
P. NARAYANAN, INTELLECTUAL PROPERTY LAW 320 (3 rd ed., Eastern Law House, 2017).
29
Indian Performing Right Society Ltd. v. Aditya Pandey, (2011) 3 M.I.P.R. 19 (India).
16
perspective of petitioner and not that of the second respondent, which shall be the true
criterion for determining whether the performance/performance of the play constituted
communication to the public. Therefore, the performance of the play by the second
respondent across government schools in Kelji amounts to a communication to the public
within the scope of s. 2(ff) of the Act.
III.3 EXHIBITION OF PLAY NOT AMOUNTING TO FAIR DEALING
26. It is humbly submitted that the act of performance of the play by the second respondent is
not covered under the permitted exceptions to copyright under section 52 of the
Copyright Act. Section 52(1)(j), in particular, permits such performance by the staff and
students of an educational institution in the due course of its activities30 and the said
audience witnessing such a performance must be “limited to such staff and students, the
parents and guardians of the students and persons connected with the activities of the
institution.”31 The play that was performed under directions of the second respondent was
not restricted to such an audience as it incorporated the involvement of various other
government schools across Kelji. Placing reliance on the case of The Chancellor Master
& Scholars of The University of Oxford v. Narendera Publishing House, the Delhi High
Court elucidated on the concept of fair use/fair dealing stating- “The doctrine of fair use
legitimizes the reproduction of the copyrightable work provided that the purpose served
by the subsequent or infringing work is different from the purpose served by the prior
work.”32
27. It is humbly submitted that the subject matter and purpose of the film Narcoz and the
subsequent stage play prepared by the respondents was one and the same, i.e. to showcase
the detrimental effects of narcotics and drugs on human body as claimed by the
respondent. It is further submitted that the idea and the theme on which the play was
based was common, and the expression of such an idea amounted to infringement of the
petitioner’s film, as “there exists a valid copyright in the original form of expression of an
30
Copyright Act, supra note, § 52(1)(j).
31
Id.
32
The Chancellor Master & Scholars of The University of Oxford v. Narendera Publishing House, (2016) 233
D.L.T. 279 (India).
17
idea or theme.”33 Thereafter the defence of fair use by the second respondent is not
maintainable in light of their acts infringing the copyright of the petitioner.
III.4 PLAY AS A COMMERCIAL EXPLOITATION OF PETITIONER’S WORK
28. It is humbly submitted that the play was performed by students of the second respondent
belonging to class V-VIII34 and the said performance was reflected as an extra-curricular
activity by the second respondent for which students of the respondent school were
charged an annual fee that made up 5% of the total fee paid every year. 35 In the present
case, the second respondent categorically falls under the classification of either a
government school wherein the provision of the Right to Free and Compulsory Education
Act, 2009 applies in the form of -
“Every child of the age of 6-14 years shall have the right to free and
compulsory education in a neighbourhood until the completion of elementary
education”36
29. Therefore, no child studying in a government school is liable to pay any fee or any other
charges for the purpose of any extra-curricular activities thereof, until the completion of
elementary education, i.e. class VIII, or as the case maybe up till fourteen years of age. In
the instant case, students of the second respondent were not liable to pay any amount of
fee either for academic purpose or for the extra-curricular activities. The fact that the
second respondent charged 5% of the total fee in the form of extra-curricular expenses
was prima facie for the purpose of commercial exploitation and obtaining profits thereof.
The Oxford Dictionary defines ‘profit’ as “a financial advantage or benefit.”37 “The
purpose and character of the use was such that the copyrighted material was being
exploited for unfair financial gains without paying the customary price,”38 thus affecting
the commercial market for the film. On the issue of commercial benefits, it has been held
that “If, the appropriation of the copyrighted product of another is motivated by the desire
33
Twentieth Century Fox Films Corp. v. Zee Telefilms Ltd., (2012) 2 M.I.P.R. 377 (India).
34
Moot Proposition, ¶ 3.
35
Id.
36
Right to Free & Compulsory Education Act, 2009, Act no. 29, Acts of Parliament, 2009, § 3(1).
37
Oxford English Dictionary, https://en.oxforddictionaries.com/definition/profit, (Sep. 20, 2018, 6:22 PM).
38
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539-562 (1985).
18
to derive commercial benefit, the use, regardless of the quantity, is unfair.”39 Therefore
the performance of the play in government schools and charging of the fee for the same
constitutes commercial exploitation of the petitioner’s copyright.
39
Loew's Incorporated v. Columbia Broadcasting System, 131 F. Supp. 165 (S.D. Cal. 1955).
19
PRAYER
Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed on behalf of the petitioner that the Hon’ble High Court may be pleased to
adjudge, declare and order:
The issuance of a writ in the nature of mandamus under Article 226 of the
Constitution of Sager by directing (a) the first respondent to not infringe the copyright
by screening of the cinematograph film Narcoz and (b) the second respondent to not
infringe the copyright of the petitioner by performance of the play based on the
cinematograph film Narcoz.
OR
Pass any other order, direction or relief that this Hon’ble court may deem fit in the
interest of justice, equity and good conscience.
ALL OF WHICH IS HUMBLY SUBMITED

---------------------------------------------
COUNSEL FOR THE PETITIONER
20

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ST GALGOTIAS UNIVERSITY NATIONAL MOOT COURT COMPETITION - 2018

11st GALGOTIAS UNIVERSITY NATIONAL MOOT COURT COMPETITION-2018

TEAM CODE T-6

ORIGINAL WRIT JURISDICTION

WRIT PETITION NO………/2018

UNDER ARTICLE 226 OF

THE ROLLA FILMS………………………………………………….PETITIONER

1. GOVERNMENT LAW UNIVERSITY, KELJI

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMEORIAL ON THE BEHALF OF THE PETITIONER

S.NO ABBREVIATIONS FULL FORMS

4. A.I.R. All India Reporter

9. FPS Florence Public School

10. GLU Government Law University

11. HC High Court

12. Hon’ble Honourable

13. Id. Ibidem

14. Inc. Incorporated

15. IPR Intellectual Property Rights

16. Ltd. Limited

17. M.P. Madhya Pradesh

18. No. Number

19. Pg. Page

20. Pvt. Private

21. r/w Read with

22. S.C.C. Supreme Court Cases

23. TRIPS Trade-Related Aspects of Intellectual

1. DANIEL GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND

INTERNATIONAL AGREEMENTS & CONVENTIONS

Article 226 of the Constitution of Sager reads as follows-

I. WHETHER THE WRIT PETITION FILED BY THE PETITIONER IS

II. WHETHER SCREENING OF THE CINEMATOGRAPH FILM BY THE FIRST

III. WHETHER PERFORMANCE OF THE PLAY BY THE SECOND RESPONDENT IN

I. WHETHER THE WRIT PETITION FILED BY THE PETITIONER IS

II. WHETHER SCREENING OF THE CINEMATOGRAPH FILM BY THE FIRST

III. WHETHER PERFORMANCE OF THE PLAY BY THE SECOND RESPONDENT IN

I. WHETHER THE WRIT PETITION FILED BY THE PETITIONER IS

I.1 SCOPE OF ARTICLE 226 OF CONSTITUTION OF SAGER

I.2 RESPONDENTS AS OTHER AUTHORITIES UNDER ARTICLE 12

I.3 PRESENCE OF ALTERNATIVE REMEDIES IS NO BAR

infringement of intellectual property rights.14 Effective and expeditious remedies are

II. WHETHER SCREENING OF THE CINEMATOGRAPH FILM BY THE FIRST

II.1 ABSENCE OF LICENSE OR AUTHORIZATION TO THE RESPONDENTS

14. It is submitted that a cinematograph film is a creative articulation of the underlying

II.2 SCREENING OF THE FILM AS COMMUNICATION TO THE PUBLIC

respondent screened the cinematograph film as a community outreach activity of its

III. WHETHER PERFORMANCE OF THE PLAY BY THE SECOND RESPONDENT

III.1 THE PLAY AS A COPY OF THE CINEMATOGRAPH FILM

III.2 COMMUNICATION TO PUBLIC OF THE FILM AS INFRINGEMENT

III.3 EXHIBITION OF PLAY NOT AMOUNTING TO FAIR DEALING

III.4 PLAY AS A COMMERCIAL EXPLOITATION OF PETITIONER’S WORK

ALL OF WHICH IS HUMBLY SUBMITED

COUNSEL FOR THE PETITIONER

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