XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

BEFORE

THE HONBLE HIGH COURT OF JUDICATURE AT MUMBAI

THE CASE CONCERNING APPEAL

CIVIL APPEAL NO.101/2015

MR. PACHPAN APPELLANT

MR. SHARMA RESPONDENT NO. 1

VIDEOTUBE.COM RESPONDENT NO. 2

APPEAL NO. 1/2015

MR.PACHPAN APPELLANT

MR. SHARMA RESPONDENT NO. 1

VIDEOTUBE.COM RESPONDENT NO.2

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

1
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4-5

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7-8

ISSUES FOR CONSIDERATION 9

SUMMARY OF ARGUMENTS 10-12

WRITTEN SUBMISSIONS 13-26

I) WHETHER THE AMENDMENTS MADE IN THE SCRIPT ARE AGAINST

MORALITY AND THEREFORE THE CONTRACT TO BE RENDERED VOID;
1.1) Morality.
1.2) Validity of contract entered.
II) WHETHER THE IMPOSSIBILITY OF PERFORMANCE OF CONTRACT IS
CAUSED BY MR. SHARMA AND MR. PUCHPAN NOT TO BE HELD LIABLE;

2.1) Impossibility of performance;

III) .WHETHER THE COPYRIGHT OWNERSHIP LIES WITH MR. SHARMA AND
PERMISSION OF THE ACTOR IS REQUIRED FOR RELEASE OF MOVIE;

3.1) Copyright Ownership;

3.2) Authors Moral Rights;

IV) WHETHER AN ORDER TO BE MADE AGINST VIDEOTUBE.COM, MATTER BE

CONSIDERED AND THE MOVIE SHOULD BE BANNED AS THERE IS NO
PUBLIC INTERST INVOLVED;

4.1) Public Interest

4.2) Defamation

PRAYER 27

2
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

LIST OF ABBREVIATIONS

and .. Paragraph and paragraphs

A.P. .. Andhra Pradesh

A.C. Appellate Cases

AIR All India Reporter

All E R .. All England Reports

Co. Company

CPJ . Corporation

ECR European Case Report

Honble Honourable

MANU Manupatra

NCT . National Capital Territory

Ors .. Others

PP ... Page no. or Pages

SC ... Supreme Court

SCC Supreme Court Cases

v. Versus

SCR Supreme Court Reporter

3
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

INDEX OF AUTHORITIES

CASES

Shri Chandrakant Kalyandas Kakodkar v State of Maharashtra and others; (1969) 2

SCC 687.
Ranjit D Udeshi v State of Maharashtra; (1965) 1 SCC 65
Krishena Kumar v Union of India; (1990) 4 SCC 207
Raghunathrao Ganpatrao v Union of India; 1994 Supp (1) SCC 191
Gerulal Parakh v Mahadeodas Maiya; AIR 1959 SC 781
Paradine v Jane; Kings Bench, (1647) Aleyn 26:82 ER 897
Krell v Henry; (1903) KB 740
Nirmala Anand v Advent Corporation Pvt Ltd; AIR 2002 SC 2290
Satyabrata v Mugneeram; 1954 SCR 310
Eastern Book Company v D.B Modak; (2008) 1 SCC 1
Indian Performing rights society v Eastern India Motion Pictures Assn;(1977) 2 SCC
820:AIR 1977 SC 1443
Gee Pee Films Pvt. Ltd v Pratik Chowdhry;2002 (24) PTC 392 (Cal) at 401
Time Warner Entertainment Company, LP & Others v RPG Netcom; (2007) 34 PTC 668
(Del) PB at p. 673.
Amarnath Sehgal v Union of India; 2005 (30) PTC 253
Wiley Eastern Ltd v Indian Institute of Management; (1995) 58 DLT 449
Mannu Bhandari v Kala Vikas Pictures Ltd; AIR 1987 Del 13
Dattaraj Nathuji Thaware v State of Maharashtra & Others; 14th December, 2014
Maneka Gandhi v Union of India; (1978) 1 SCC 248
Ratanlalchand Hirachand v Asgar Nawaz Jung; AIR 1976 AP 112
Secretary, Ministry of information and broadcasting v Cricket Association of Bengal;
(1995) 2 SCC 161
MSM Sharma v Shri Krishna Sinha; 1959 Supp (1) SCR 806
Romesh Thapar v State of Madras; 1950 SCR 594
Shreya Singhal v Union of India; (2015) 5 SCC 1
All India Bank Employees Assn. v National Industrial Tribunal; (1962) 3 SCR 269

4
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

STATUTES

INDEAN STATUTES:-

THE INDIAN COPYRIGHT ACT, 1957

THE CONSTITUTION OF INDIA, 1950

THE INFORMATION TECHNOLOGY ACT, 2000

THE INDIAN CONTRACT ACT, 1872

THE INDIAN PENAL CODE, 1860

BOOKS:-

Law relating to Intellectual Property Rights, VK Ahuja

Law of Copyrights, Alka Chawla
Constitutional Law of India, MP Jain
Constitutional Law of India, Mamta Rao
Information Technology Act, Bare Act by Universal Law Publications
Contract and Specific Relief, Avtar Singh
Contract and Specific relief, Pollock and Mulla
Indian Penal Code, Ratanlal & Dhirajlal

5
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

STATEMENT OF JURISDICTION

The respondents are before the Honorable High Court of Judicature at Mumbai, has invoked the
appellate jurisdiction of the court under Section 96, Code of Civil Procedure, 1908 of Indea for
the issuance of order in favour of the order of the Trial Court;

Section 96 of Code of Civil Procedure, 1908 states as follows:-

Appeal from original decree (1) Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal shall lie from every decree passed
by any Court exercising original jurisdiction the Court authorized to hear appeals from the
decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the
original suit does not exceed three thousand rupees.

6
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

STATEMENT OF FACTS

1) Abhishek Pachpan, a resident of Kanpur City, came to Mumbai, to try his luck in the film
industry. It was very much common in the film industry that, whosoever was coming in
order to test his or her luck in the industry were eventually turned down by the directors
and producers of the show cause business. Mr. Pachpan was also one of them. He too
tried to enter the industry and for that he gave film auditions. But eventually he was also
turned down by the directors and producers of the movie. Thereafter he joined a training
center in Mumbai, where he tried to improve his skills. Soon after he started to get some
minor roles, started working with most influential people of the industry. Mr. Sharma, at
this time approached him, and asked whether he is willing to do a role of homosexual
individual in his upcoming movie. He readily agrees and enters into contract with him in
this regard. The contract was entered on 20th August 2014. Exclusive rights of
broadcasting the show were given to videotube.com.
2) The Supreme Court of Indea, passed a judgment where it upheld the validity of the
provision enshrined under the Indean Penal Code, 1860.
3) As and when the Supreme Court passed a judgement as to upholding the validity of
Section 377 of Indean Penal Code, the director made certain amendments in the script of
the movie and as result of such amendments, certain intimate scenes were added in the
movie. After reading the amended script Mr. Pachpan refused to continue with the movie.
4) To the claims of the appellant, Mr. Sharma and videotube.com replied that, movies on
these subjects normally tend to have a sexual content involved; therefore the amendments
made in the script cannot render the contract to be void. Also all copyright ownership lies
with the owner and not the actor. He further claimed that the release of the movie is in the
public interest, therefore no order can be made for the removal of the movie from
videotube.com.
5) The Civil Court of Mumbai heard the petition on a daily basis and granted relief in favor
of Mr. Sharma rendering the contract to be valid. The court ordered payment of cost for
the violation of contract and all expenses be paid thereon by Mr. Pachpan. Further no
order was made for the removal of the movie from videotube.com.

7
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

STATEMENT OF ISSUES

ISSUE 1- WHETHER THE AMENDMENTS MADE IN THE SCRIPT ARE AGAINST

MORALITY AND THEREFORE THE CONTRACT SHOULD BE RENDERED VOID;

ISSUE 2- WHETHER THERE WAS IMPOSSIBILITY OF PERFORMANCE OF CONTRACT

CAUSED BY MR. SHARMA AND HENCE MR. PACHPAN SHOULD NOT BE HELD
LIABLE;

ISSUE 3- WHETHER THE COPYRIGHT OWNERSHIP LIES WITH MR. PACHPAN FOR
THE SCENES PERFORMED BY HIM AND WHETHER HIS PERMISSION IS ESSENTIAL
FOR THE RELEASE OF MOVIE;

ISSUE 4- WHETHER THE PASSING OF ORDER AGAINST VIDEOTUBE.COM BE

CONSIDERED AND WHETHER THE MOVIE BE BANNED BEING IT AGAINST PUBLIC
INTEREST;

8
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

SUMMARY OF ARGUMENTS

ISSUE 1- WHETHER THE AMENDMENTS MADE IN THE SCRIPT ARE AGAINST

MORALITY AND THEREFORE THE CONTRACT SHOULD BE RENDERED VOID;

It is humbly submitted before the court that the amendments made in the script are not against
morality and thus the contract should not be rendered void. It is hereby contended that the
conservative society is being converted into a contemporary society. It is because of this reason
that, inclusion of intimate scenes does not leave much impact on the people. This statement has
been substantiated through case laws which have been used in this context as precedents, which
state that, the court shall look into the matter of obscenity by taking into account the whole
scenario and other things that are related to the main matter. Further according to various
judgements of the court, it can be made out that what is forbidden by law may not be so under
morals. Also contract shall be considered as valid because of the reason that the things shown on
the screen are totally moral and thus no strong grounds are formed which can substantiate the
contract to be void.

ISSUE 2- WHETHER THERE WAS IMPOSSIBILITY OF PERFORMANCE OF

CONTRACT CAUSED BY MR. SHARMA AND HENCE MR. PACHPAN SHOULD
NOT BE HELD LIABLE;

Impossibility of performance of contract refers to the condition where the contract becomes
impossible for performance due to many factors. Concerning the present case, we are aware of
the fact that once a contract is made between the two parties and conditions for the performance
of such contract are established, then even under the change of circumstances of the case, the
basis under which the contract was formed previously cannot be changed. Such a statement is
substantiated by case laws which have played a major role in establishing this fact. So according
to this principle, Mr. Pachpan was himself responsible for the breach of agreement signed
between the two parties and therefore he the one who should be held liable for the same.

9
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

ISSUE 3- WHETHER THE COPYRIGHT OWNERSHIP LIES WITH MR. PACHPAN

FOR THE SCENES PERFORMED BY HIM AND WHETHER HIS PERMISSION IS
ESSENTIAL FOR THE RELEASE OF MOVIE;

The Copyright Act, 1957 defines Author as a creator of work but the owner of copyright is
the person who has plenary control over the work. The fundamental rule is that the author is
the first owner of copyright. In the present case, the producer is the author of the film, and
therefore he has the sole ownership upon the movie. Thus the producer of the movie need to any
permission from anyone in this regard.

ISSUE 4- WHETHER THE PASSING OF ORDER AGAINST VIDEOTUBE.COM BE

CONSIDERED AND WHETHER THE MOVIE BE BANNED BEING IT AGAINST
PUBLIC INTEREST;

As we have already proved in the first issue that by the introduction of intimate scenes, Mr.
Sharma has done no immoral act and that such introduction is totally in the interest of the public.
Moreover, Mr. Sharma being a citizen of Indea holds some fundamental rights that include the
right to express as a part of Article 19(1)(a) of the Constitution of Indea, 1950. Under such
fundamental right, the producer has the right to express his view points to the public by any
means that further includes the pathway of showing cinematographic films. Homosexual
individuals are also a part of the society in general and they too have a right to lead their lives
freely and with due respect.

10
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

ARGUMENTS ADVANCED

ISSUE 1- WHETHER THE AMENDMENTS MADE IN THE SCRIPT ARE AGAINST

MORALITY AND THEREFORE THE CONTRACT SHOULD BE RENDERED VOID?

It is humbly submitted before the Honorable court that the amendments made in the script of the
movie, that is, the adding up of intimate scenes are not in any way against morality and therefore
the contract entered between the appellant (herein referred to as Mr. Pachpan) and the
respondents (herein referred to Mr. Ram Gopal Sharma) is valid.

1.1) MORALITY:-

Going by a laymans definition of morality, it states as-Conformance to a recognized code,

doctrine, or a system of rules of what is right or wrong and thus behaving accordingly. As
we are aware that, it may be a possibility for any act that was moral in the earlier times might be
an immoral act presently and vice-versa. So if we consider todays contemporary world keeping
aside the conservative society of the earlier times, with respect to homosexuality and the adding
up of intimate scenes in the movie specifically, the following Supreme Court judgment shall be
taken into account in this regard;

In the case of Shri Chandrakant Kalyandas Kakodkar v State of Maharashtra and others1, it has
been very well established, that it being the duty of the court to consider the obscenity (if it may
be, as is here presently) by taking an overall view of the whole work or the task that is being
performed and to determine whether the obscene or intimate passages are likely to deprave and
corrupt those whose minds are open to such sort of influences. Moreover the society is becoming
contemporary in nature as is the case in Indea as well. So if a reference to intimate scenes or any
such sort of obscenity is immoral then except for the purely religious talks, nothing other than
this need to be aired in the environment.

In the case of Krishena Kumar v Union of India2, the Supreme Court declared that there is a
distinction between law and morality and certain limits which separate morality from the
legislation. Basically in this case, morality is defined as art of directing the actions of men in

1
(1969) 2 SCC 687
2
(1990) 4 SCC 207

11
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

such a way so as produce a greatest possible sum of good. One thing that too is clarified by
this case is that generally, there are certain activities that are forbidden by the legislation but they
are not forbidden by morals. Similarly in the case herein, the law doesnt permit the homosexual
activities and criminalizes such activities3, but this cannot be the sole reason to believe that such
activities are immoral to the society.

Further in another case of Raghunathrao Ganpatrao v Union of India4, it has been stated that the
law cannot be interpreted on the basis of moral principles, which further means that the aspect of
morality need not be taken into account while interpreting legal principles. Therefore in the
present scenario also, question upon the morality cannot be put forward when it comes to the
amendments made in the script because it may also not violate the morality aspect since morality
varies from one context to another.

Therefore from the case laws above, it can very well be established that the concept and meaning
of morality varies from time to time and in different contexts. Thus it cannot be made certain as
to whether the amendments made in the script are against morality. In another case of Gerulal
Parakh v Mahadeodas Maiya5, it is said that the context of immorality depends upon, place and
stage of civilization of a particular society. Further it is established that in this contemporary
world the society is not in the conservative waters, it has risen above it and therefore with the
passage of time, the definition of morality has also been changed.

1.2) VALIDITY OF CONTRACT ENTERED;

It is to contend here that the actor has readily accepted to the terms of the contract6 and had
willingly accepted the role of a homosexual individual. Moreover according to the agreement all
the authority to amend, alter or modify the agreement lies with the director which was also
accepted by the actor. Following are the phrases from the agreement excerpt:-

The producer holds exclusive rights to amend, add, remove, modify in the script giving the
required notification to the actor concerned about the said changes, provided that such changes
shall comprehend with the circumstances theme of the movie and may not oppose to public

3
Section 377, Indian Penal Code, 1860.
4
1994 Supp (1) SCC 191
5
AIR 1959 SC 781
6
Annexure 1 of the agreement

12
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

policy at large. Public Policy as defined in Section 237, states-matter which connotes to
public interest and public good8. Also, there is an inclusion of the factor in the agreement as
to the notification of breach by the employee/actor in writing setting forth the alleged breach or
default in the agreement9, which was not complied with by the actor herein. Thus it can be
concluded in this respect that there was no breach of agreement and thus it too holds good for
both the actor and the director of the movie.

ISSUE 2:- WHETHER THERE WAS IMPOSSIBILITY OF PERFORMANCE OF

CONTRACT CAUSED BY MR. SHARMA AND HENCE MR. PACHPAN SHOULD
NOT BE HELD LIABLE;

2.1) IMPOSSIBILITY OF PERFORMANCE;

In a general sense, Impossibility of performance of contract, means some outside act makes
the performance of the contract impossible. Even when the parties have concluded to the
contract, there may arise some or the other scenario that may cause the contract to frustrate the
purpose of the contract.

According to Section 56 of the Indian Contract Act, the concept of subsequent impossibility
comes into light. The concept of subsequent impossibility states as- Sometimes the performance
of contract is quite possible when it is made by the parties. But some event subsequently happens
that makes the performance of the contract, impossible or unlawful. This clarifies that though the
contract is valid from the very beginning but due to the happening of some or the other events,
the contract has become impossible to perform.

This is what exactly has happened in the present case. In the present case, according to the
factual description, Mr. Pachpan (herein referred to as actor/employee) has voluntarily given his
assent to the terms of the Actors Employment Agreement that held him playing a role of a
homosexual individual in the movie. This agreement was entered into and signed between Mr.
Pachpan and Mr. Sharma on 20th August 2014. The agreement has bound both the parties to the
terms and conditions of the agreement. But on the declaration of a Supreme Court decision to

7
Indian Contract Act, 1872
8
Indian Oil Corporation v Raj Unocal Lubricants Ltd; 1996 SCCOnline Bom 128.
9
Para 5 of the Actors employment agreement.

13
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

uphold the validity of Section 377 of the Indean Penal Code (IPC), the director decided to make
certain amendments in the script as to the addition of intimate scenes in the movie.

This addition led to the changing of the circumstances of the case but the validity of the contract
still continues. In the case of Paradine v Jane10, it was pointed out that subsequent happenings in
a case should not affect the contract already made. Therefore according to this fundamental
principle that was laid down in this case, it can be said that addition of intimate scenes in the
movie that are subsequent to the earlier terms should not affect the contract that was already
made, that is, as to the involvement of the actor in the movie. Thus it is established that the actor
himself has made the performance of contract impossible as a result of which he shall be held
liable.

In another case of Satyabrata v Mugneeram11 , it was observed by the Supreme Court of India
that there are various theories regarding the judicial basis of the Doctrine of Frustration 12 yet the
essential idea is based on the impossibility of performance of contract. Supreme Court in this
respect further quoted that unlike English Law, the term impossibility is not always used in the
sense of physical and literal impossibility, but it refers to the performance of an act becoming
impracticable from the point of view of object involved. In the present case as well the
impracticability of agreement comes into light as far as the object of the movie is concerned,
where the actor has not rejected the movie because of his physical and literally impossible but
because it was believed to be impracticable.

In Nirmala Anand v Advent Corporation Pvt Ltd13, the Supreme Court in this matter held that
where one of the parties to the agreement have rejected to abide by the contract terms and that
has refuted his consent in this aspect, rejection holds to be absolutely binding on both the parties
and hence would render the performance of the contract impossible resulting in frustration under
Indian Contract Act, 187214. Therefore the relief cannot be refused.

10
Kings Bench, (1647) Aleyn 26:82 ER 897
11
1954 SCR 310
12
Section 56, Indian Contract Act, 1872
13
AIR 2002 SC 2290
14
Section 56, Indian Contract Act, 1872

14
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

Therefore it can be concluded in this respect that the impossibility of performance of contract is
caused by Mr. Pachpan (herein referred to as actor/employee) and thus he should be only liable
for the same.

ISSUE 3:- WHETHER THE COPYRIGHT OWNERSHIP LIES WITH MR. PACHPAN
FOR THE SCENES PERFORMED BY HIM AND THUS HIS PERMISSION IS
ESSENTIAL FOR THE RELEASE OF THE MOVIE;

3.1) COPYRIGHT OWNERSHIP;

Author is the creator of the work but the owner of copyright is the person who has plenary
control over the work. The fundamental rule is that the author is the first owner of
copyright.

Copyright Act, 195715, clearly explains the meaning of the term Author as under;

Author means

1) In relation to literary or dramatic work, the author of the work;

2) In relation to musical work, the composer;
3) In relation to artistic work other than a photograph, the artist;
4) In relation to a photograph, the person taking the photograph;
5) In relation to cinematographic film or sound recording, the producer; and
6) In relation to any literary, dramatic, musical or artistic work which is computer-
generated, the person who causes the work to be created;

Coming to the case in hand, it can be made certain that the Producer/Director of IPC 377 is the
sole author of the movie16.Being the author, he is also an owner of the copyright upon the film
made, engaging Mr. Pachpan as the actor in the movie. The author in relation to the
cinematographic film and the sound recording is the author17. Producer as defined under the

15
Section 2(d), Copyright Act, 1957
16
Sub section 5, Section 2(d), Copyright Act, 1957
17
Chawla Alka, Law of Copyright: Comparative Perspectives 75 (1st Ed.,2013)

15
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

Copyright Act, 195718, states-A person who takes the initiative and responsibility for
making the work.

Now, subject to the provisions of this Act, the author of a work shall be the first owner of the
copyright therein provided that19-

(a) in the case of a literary, dramatic or artistic work made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical under a contract of
service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar
periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first
owner of the copyright in the work in so far as the copyright relates to the publication of the
work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the
purpose of its being so published, but in all other respects the author shall be the first owner of
the copyright in the work;

(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or
portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the
instance of any person, such person shall, in the absence of any agreement to the contrary, be the
first owner of the copyright therein;

(c) in the case of a work made in the course of the author s employment under a contract of
service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in
the absence of any agreement to the contrary, be the first owner of the copyright therein;

In the case of Eastern Book Company v D.B Modak20, it was held that, when a person produces
something with true skill and knowledge, copyright ownership belongs to him. Thus for this
particular reason, the Copyright Act, 1957 grants certain exclusive rights to the producer of the
film. The object of the act is to protect the author of the copyright work from an unlawful
reproduction or exploitation of his work.

18
Section 2(uu), Copyright Act, 1957
19
Section 17(a)(b)(c) of the Copyright Act, 1957
20
(2008) 1 SCC 1

16
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

In yet another case of Indian Performing rights society v eastern India Motion Pictures Assn21, it
was made certain that the exclusive ownership of the copyright rests with the producer only and
nobody else has such a ownership.

Thus it is established that the producer of the cinematographic film is the sole owner of the
copyright for making the film concerned and that in the present case also Mr. Sharma happens to
be the sole copyright owner, whereby he need not take any permission from anybody regarding
the release of such a film. As far as the inclusions of intimate scenes in the movie are concerned,
due to which the actor has refused to perform in the movie, then it has already been established
in the first issue about the presence of consensus ad idem between the parties for the purpose of
contract.

Therefore we can thus say that the copyright ownership lies with the author that is the
producer/director of the film and therefore no prior permission need to be taken from the actor
for its release on the screen.

ISSUE 4:- WHETHER THE MATTER THAT NO ORDER HAS BEEN MADE AGAINST
VIDEOTUBE.COM BE CONSIDERED AND THE MOVIE SHOULD BE BANNED AS
THERE IS NO PUBLIC INTEREST INVOLVED;

4.1) PUBLIC INTEREST;

The welfare of the people as compared to that of a private individual holds much more
importance. The whole society has a stake in this interest and the government recognizes
the promotion and protection of general public22. This is what is known as public interest.

Explaining the scope of the expression public policy and public interest and the role of Justice
C. Reddy of the Andhra Pradesh High Court23 observed that the twin touchstones of public
policy are advancement of public good and prevention of public mischief and these
touchstones have been decided by judges not as men of legal learning but as a people of the

21
(1977) 2 SCC 820:AIR 1977 SC 1443
22
Blacks Law Dictionary
23
Ratanchand Hirachand v Askar Nawaz Jung, AIR 1976 AP 112

17
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

ordinary community representing the highest common factor of public sentiments and
intelligence.

Now coming to the point as to whether public interest is involved in this aspect or to say whether
the inclusion of intimate scenes in the movie is against the public policy or not. For this we again
need to come to the concept of public policy as has been defined above. It basically means
advancement of public good, and then in general sense, public good can be advanced when the
people will have all their fundamental rights reserved in hand. So by the means of Article 19, of
the constitution, the author gets the right to put his view forth, and express whatever he feels like.

Article 19(1)(a)24, basically provides freedom to speech and express ones opinion freely without
any fear through oral, written or electronic media. In the present case as well, by the addition of
intimate scenes in the movie, the author of the film is trying to convey a message that the
homosexual individuals in no manner different from the general humans. They too are citizens of
the same country and have to right to enjoy those rights that are being enjoyed by the other
people of the society.

In the case of Maneka Gandhi v Union of India25, it has been held that freedom of speech and
expression has no geographical boundaries and it carries with it the right of a citizen to gather
information and to exchange his thoughts with others. So, it means there is no wrong when the
author is trying to reveal the ground reality of homosexuality and express his viewpoint in this
respect by allowing the intimate scenes in the movie. This being not against the judgement of the
Supreme Court of India, because it is just his expression in this field of study.

In yet another case of Secretary, Ministry of information and broadcasting v Cricket Association
of Bengal26, it has been held that every citizen of the country has a fundamental right to impart as
well as receive information through electronic media. Freedom of speech and expression played
an important role in this aspect. But apart from this, the right to freedom of speech and
expression27 has some limitations too and they are listed as follows:-

That the words said under the right shall not be against the interest of the whole country.

24
Constitution of India, 1950
25
(1978) 1 SCC 248
26
(1995) 2 SCC 161
27
Article 19(1)(a), Constitution of India, 1950

18
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

They shall not be against morality and decency

Shall not be against Public Order
Shall not harm the integrity and sovereignty of the country

In case any of the above mentioned limitations are present then the right holds void. But the way
the author in the present case is trying to pose his point of view, is nowhere in violation of the
above mentioned bullets (As has been already established in Issue 1 related to morality).

Under our first issue we have already established the fact that just by the incorporation of
intimate scenes in the movie, that was also the cause of breach of contract from the side of
appellant, one cannot come to the conclusion that such incorporation is against the interest of
general people. This is because of the fact that the author of the movie is just trying to air his
views to the people of the society regarding the rights possessed by the homosexual individuals
as a citizen of India and that too he has a fundamental right to do so, under Article 19(1)(a) of the
Indian Constitution. The author is trying to change the mindset of the people in this regard.

4.2) DEFAMATION;

As far as the suit for defamation is concerned then it is contend that the author has in no manner
defamed the actor. Following are the essentials of defamation:-

Defamatory Statement;
Published to someone other than the respondent himself;

In order to prove that the respondent has defamed the appellant, the appellant first need to prove
that the above mentioned conditions are fulfilling. It is here to contend that there has not been
any sort of defamatory statement by the producer of the movie for the actor. Hence defamation in
this manner cannot be claimed by the actor.

Furthermore as far as the point of passing order against the Videotube.com is concerned, then it
being an intermediary between the two parties that are Mr. Sharma and Mr. Pachpan has entered
into contract with the producer regarding the exclusive right that he shall possess for the purpose

19
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

of streaming and broadcasting the movie, then no such order can be made because it is not
objectionable to the society.

Therefore there are no grounds for the movie to be banned, as it is in the interest of the public
and published in a non-defamatory manner.

20
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the
respondents most humbly and respectfully pray and request the Honble court:

To hold:
The Trial Courts judgments as correct in best interest of justice.

To pass:

An order stating that the amendments made in the script are not against morality,
therefore the contract to be held valid.
An order stating that the impossibility of performance of contract is not caused by Mr.
Sharma and thus Mr. Pachpan is to be held liable for the same.
An order that the copyright ownership lies with the director and therefore there is no need
for the director to take permissions for the release of movie from Mr. Pachpan.
An order that the movie is in public interest and therefore it should not be banned and
that no order shall be made against videotube.com.
Miscellaneous:
Any other relief which this Honble court may be pleased to grant in the interests of Justice,
Equity and Good Conscience. All of which is respectfully submitted.

For This Act of Kindness, the Respondent Shall Be Duty Bound Forever Pray.

All of which is respectfully submitted.

S/d__________________

(Counsel for the Respondent)

21
XI INTERNAL MOOT COURT COMPETITION, 2016 MEMORIAL ON BEHALF OF RESPONDENTS

22