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Article Published in the Express Magazine Dated
March 03, 2002
General Attorney : Rajiv K. Luthra
My friend has made a film. However, the main
plot of the story has essentially been picked up
from a stage play. He has also included other
themes in his new film. In this scenario, would he
be infringing any copyrights?
A. Singh, Delhi
It will be difficult to comment without knowing
the exact details of the extent of copying the
original theme. However, to give you a broad idea
on infringement of copyright would perhaps enable
you to determine the extent to which your friend
may be liable.
Where the theme is the same but is presented and
treated differently so that the subsequent work
becomes a completely new work, no question of
violation of copyright arises. Where, however, the
question is of the violation of the copyright of
stage play by a film producer or a director it
becomes more difficult to prove piracy. It is
manifest that unlike a stage play, a film has a
much broader perspective, wider field and a bigger
background where the film producer can by
introducing a variety of incidents, give a colour
and complexion different from the manner in which
the original work has expressed the idea. However,
if the viewer after seeing the film gets a
totality of impression that the film is by and
large a copy of the original play, violation of
the copyright may be said to be proved.
For a dishonour of my cheque issued by a
company (of no small amount), can I proceed
against its Directors or other officers since the
Company is alleging that it has winding up
proceedings going on against it?
G.K. Khanna, Delhi
Normally the drawer of the cheque under section138
of the Negotiable Instruments Act, 1881 ("Act"),
would be the offender under the Act, but since the
same is an offence committed by a company, the
provisions of section 141 of the Act come into
play. The said section casts a penal liability
under section 138 upon every person who, at the
time of commission of the offence, was in-charge
of, and was responsible to the company for the
conduct of its business, as well as the company,
making them liable to be proceeded against and
punished accordingly. However, any person liable
to punishment therein shall be beyond the scope of
the above stipulation if he proves that the
offence was committed without his knowledge or
that he had exercised all due diligence to prevent
the commission of such offence.
Thus, the persons that may be brought within the
purview of the penal liability through the legal
fiction envisaged in the section are a) the
company which committed the offence, b) everyone
who was in-charge of, and was responsible for the
business of the company; c) any other person who
is a director or a manager or a secretary or
officer of the company, with whose connivance or
due to whose neglect the company has committed the
offence.
The provisions do not contain a condition that
prosecution of the company is absolute necessity
for prosecution of the other persons who fall
within the second and the third categories
mentioned above. However, if you, as a payee, opt
to prosecute only the persons falling within the
second or third category and not the company, you
may succeed in the case only if you succeed in
showing that the offence was actually committed by
the company. In such a prosecution the accused can
show that the company has not committed the
offence though such company is not made an
accused, and hence the prosecuted accused is not
liable to be punished.
The Hon'ble Supreme Court has held in a judgement
that "No doubt a finding that the company
committed the offence is sine qua non for
convicting those other persons. But if a company
is not prosecuted due to any legal snag or
otherwise, the other prosecuted persons cannot, on
that score alone, escape from the penal liability
created through the legal fiction envisaged in
Section 141 of the Act".
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