Sec. 61(1) of the Copyright Act, 1957, dealing in the subject of
owners of Copyright being party to proceedings reads:
"In every civil suit or other proceeding regarding
infringement of copyright instituted by an exclusive licensee, the
owner of the copyright shall, unless the court otherwise directs,
be made a defendant and where such owner is made a defendant, he
shall have the right to dispute the claim of the exclusive
Sec. 61 is an extraordinary provision in as such it provides for
statutory impleadment of a party without the plaintiff actually
impleading him in the suit. From the reading of the Copyright Act
1957, it appears necessary that such provision be applied subject
to the rigour and restraint of doctrines involved in common law and
Deliberating on the cited section, the case of BCI Optical
Disc v. M.R.S Film Craft & Advertising Pvt. Ltd., 2009
(41) PTC 256 (Del.) sets to limit the extent of Sec. 61 of the
Copyright Act, 1957 which, in the words of the Hon'ble Judge,
" exempts the 'exclusive licensee' from impleading
the owner of the copyright in suits relating to infringement of
BCI Optical Disc Ltd. had filed a suit seeking permanent
injunction restraining interference with the exercise of copyrights
admittedly vested in their favour of (being an exclusive licensee)
via an agreement between them and the owner of the copyright,
Magnasound Pvt. Ltd. M/s Magnasound Pvt. Ltd. is a company engaged
in the manufacturing and marketing of Audio/Video CDs and DVDs, and
was on the verge of liquidation. It entered into an agreement dated
20th September, 2002 with MRS Film Craft and
Advertising, regarding the transfer of copyright of Music Videos.
Subsequently, they entered into another agreement with one of the
other co-defendants and transferred to him the rights bestowed MRS
Film Craft through the abovementioned agreement. This was again
challenged as being a clear case of fraud and cheating.
The copyright however, was finally transferred to BCI Optical
Disc Pvt. Ltd. by one Mr. Sashi Gopal, the in charge and
controlling authority of Magnasound India Ltd., acting under a
power of attorney of the co-defendant. The agreements being under
challenge, the following issues were framed for the Court's
Is the plaintiff a valid claimant of being the ultimate
beneficiary of a transaction, which he himself claims to be
fraudulent, conspiratorial and intended to defeat the rights of the
creditors of the Company and as such, would he be rewarded a relief
Can M/s. Magnasound India Ltd., being the owner of the
copyright be made a defendant in the suit by virtue of Sec. 61(1)
of the Copyright Act, 1957?
Deciding on the first issue, the Court relied on the common law
principle of 'pari delicto potiar est conditio
defendants' which may be interpreted to mean that the
Courts will refuse to enforce an illegal agreement at the instance
of a person who himself is a party to an illegality or fraud, to
hold that it would not come to the remedy of the plaintiff who
whose case is 'steeped in illegality. In the case at hand, it
could be reasonably assumed that BCI Optical was aware of the
illegality of previous transactions before himself becoming a party
to it. And hence, as such, the relief of injunction could not be
The Court also answered the second issue, in the negative, in as
much as Magnasound being disallowed from being party to the
proceedings. The Court stated that for the application of Sec. 61
of the Act, it was mandated that at least, an application in that
regard or a prayer to such effect be made. The court held that in
the absence of this natural law exercise, there would be no
impleadment of the owner of the copyright even if the statute
provides for it.
The Court in the case seems to have kept in mind the legislative
intent behind the provision thus explicating that the Courts must
exercise necessary discretion and look at the facts and
circumstances of each case to adjudge whether the case mandates
such an exemption to the plaintiff.
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