CLAIM STATEMENT

BRIEF FACTS

The claimant produces distributes and exhibits films through various media and in various
modes. It owns copyright in several feature films. The Defendant approached the claimant for a
license of their content. Subsequently a term sheet was executed between the claimant and
Defendant on the 23rd of March, 2017. Defendant offered a sum of Rs. 1.5 Crores for the grant
of content marketing and distribution rights by the claimant and it was duly paid to the claimant.
The term sheet which preceded the execution of the deal contemplated the execution of
Copyright license agreement in the form of a contract within 90 days of execution of the term
sheet which would override the terms and conditions set out in the term sheet. The term sheet
also contained an arbitration clause which stated that “any dispute arising out of or in connection
with the term sheet shall be referred to and resolved by consultation with the parties, failing
which the same shall be referred to the arbitration of a sole arbitrator”. Due to circumstances
unknown, the contract was not executed and the claimant filed a suit for copyright infringement
against Defendant for injunction and damages. Consequently, Defendant filed an application
under section 8 of the Arbitration and conciliation Act, 1996 praying that the matter be referred
to arbitration.

ISSUES:

1. WHETHER COPYRIGHT RELATED DISPUTES CAN BE REFERRED TO AN

ARBITRATOR?
2. WHETHER THE TERM SHEET IS BINDING ON BOTH THE PARTIES?
a) THE TERM SHEET DOES NOT CONFERS DISTRIBUTION RIGHTS AND
COPYRIGHT TO CINEMAX.
b) CINEMAX DID NOT HAVE THE RIGHT UNDER THE TERM SHEET.
3. WHETHER CINEMAX INFRINGED THE COPYRIGHT OF ZEUS FOR
BROADCASTING ITS CONTENT?
 SUBMISSION IN DETAIL

I. Whether the copyright related disputes can be referred to an arbitrator?

1. That Zeus (claimant) had copyright in several feature films. It executed a term
sheet contract with Cinemax (defendant) for granting content marketing and
distribution rights in respect of films.
2. The said term sheet had an arbitration clause. Also, while the term sheet
contemplated the execution of an agreement within a limited time, however, no
such agreement was executed.
3. That the term sheet was not binding due to non-execution of the Long form
agreement and thus Defendant infringed upon the copyrighted material of the
claimant.
4. That disputes with respect to trademark and copyright infringement are non-
arbitrable and are to be presented before a court of competent jurisdiction for
enforcement of remedy.
5. That the present dispute was not contractual in consequence of the fact that in
deciding the claimant’s claim for damages, the adjudicating authority must decide
whether Defendant infringed upon the claimant’s copyright.
6. Since remedy for copyright infringement is a statutory remedy, the finding of
copyright infringement can only be given by a Court and not an arbitrator.

II. Whether the term sheet is binding on both the parties?

7. Zeus, being the owner of several films, had entered into a term sheet with
cinemax (consisting of an arbitration clause) for granting content marketing and
distribution rights in respect of films. While the term sheet contemplated the
execution of a long form agreement, no such long form agreement was executed
between the parties.
8. That the term sheet is not binding as there was no such agreement being executed
between the parties that make the term sheet binding and gives right to cinemax.
9. That the Term Sheet is not binding. In any case, the condition required by that
Term Sheet, i.e., the execution of the Long Form Agreement was never fulfilled.
 The Arbitration Agreement, therefore, according to Zeus is inapplicable and does
not govern the parties.
10. That there was no agreement on various issues and that it had been agreed that till
that Long Form Agreement was executed cinemax would not exploit or deal with
the copyright-protected content. Without entering into agreement cinemax does
not have any copyrights and distribution rights with them to exploit the deal.
11. In another case it was held that there is nothing expressly agreed between the
parties and no concluded enforceable and binding agreement came into existence
between them. The correspondence exchanged between the parties, shows that the
parties were only negotiating and had not arrived at any agreement. There is a
vast difference between negotiating a bargain and entering into a binding contract.
12. In P. Panneerselvan v. A. Baylis and Others, the Madras High Court settled a case
where the appellant and respondent had entered into an agreement for the sale of
land, without reference to the description of land or particulars of value and area
of land or time period within which the contract is to be executed. The agreement
simply contained a provision that acknowledged the fact that the respondent is
willing to sell land for a particular amount. The Court remarked that nature of the
contract raised an element of doubt as to the intention of the parties to the
agreement. The said agreement was uncertain and void of material particulars.
The agreement cannot be said to be a concluded enforceable agreement.
13. On the other hand, in Nanak Builders and Investors Pvt. Ltd. v Vinod Kumar Alag
the Delhi High Court held that where the important terms have been agreed upon
and reduced into writing, and the agreement makes no mention of another formal
agreement to be executed, the Court would not consider the agreement an
incomplete agreement. In this case, the parties entered into an agreement to sell.
The defendant refused to accept the consideration paid by the claimant stating that
no contract is in force and the document signed earlier was merely a receipt.
14. Further in Chairman cum Managing Director, Tamil Nadu Tea Plantation
Corporation Ltd. v. Srinivasa Timbers, the respondent furnished security amount
in furtherance of acceptance of bid. Since there was no formal agreement, Court
 did not consider acceptance of the as an executed contract and, accordingly, held
it unenforceable.

III. Whether Cinemax infringed the copyright of Zeus for broadcasting its content?
15. Zeus filed a suit for infringement of copyright of its content by Cinemax under
Section 62 of the (Indian) Copyright Act, 1957 (Copyright Act), claiming that
Cinemax was not entitled to exploit and deal with such content before execution
of the long form agreement.
16. That the cinemax infringed its copyrights and further they had sub-licensed this
copyright protected material to the other defendants without giving any prior
knowledge to zeus.
17. Telemax infringed Eros’s copyright and was therefore liable to suffer an
injunction specifically in relation to the Term Sheet.

RELIEF

In the light of the argument submitted above authorities cited, the counsel for the claimant
humbly submits the arbitrators that the term sheet entered between the claimant and the
defendant is non-binding and therefore it cannot be enforced. Also, pass any order contending
there is an infringement of copyright by the defendant as it is proved above. Along with
permanent injunction and grant damages. In doing so the arbitrator may pass any order or relief
that the arbitrator deems fit.