A NEW DIEMENSION OF INTELLECTUAL PROPERTY RIGHTS IN SRI LANKA COMMERCIAL HIGH COURT’S ORDER ON HIRU FM’S “DJ ARA AND PASBARA”

Posted On 07 Jan 2018
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The Commercial High Court of Colombo issued an interim injunction against Voice of Asia (Pvt) Ltd and two former presenters of Asia Broadcasting Corporation (Pvt) Ltd, preventing them from using the names “DJ Ara” and “Pasbara” in radio programs. This order was issued in an intellectual property action filed by Asia Broadcasting Corporation (Pvt) Ltd.

Asia Broadcasting Corporation (Pvt) Ltd operates Hiru FM, which broadcasts a popular morning show called “Breakfast drive with DJ Ara and Pasbara”.  Aravinda Chandrakumara and Disna Munasinghe had been playing the roles of “DJ Ara” and “Pasbara” in that program for the last few years. However, Aravinda   and Disna resigned early last year to join Voice of Asia (Pvt) ltd, which operates Siyatha FM.  After Aravinda and Disna joined Siyatha FM, Hiru FM continued their morning show “Breakfast Drive with DJ Ara and Pasbara” with two new presenters, who played the roles of “DJ Ara” and “Pasbara”. In the meantime, Siyatha FM too launched a new morning show called “Good Morning with Ara and Aashcharya” with Aravinda and Disna, who, according to Hiru FM, were introduced to the listeners as “real DJ Ara and Pasbara”. Hiru FM complains that Siyatha FM’s new radio program “Good Morning with Ara and Aashcharya” has the same characters, the same content, the same format and the same airtime as Hiru FM’s morning show “Breakfast Drive with DJ Ara and Pasbara”.  As a result, an intellectual property action was instituted by Hiru FM against Siyatha FM and the two presenters Aravinda and Disna, on the basis of copyright violation and unfair competition.

Siyatha FM, Aravinda Chandrakumara and Disna Munasinghe, the Defendants named in the action, argued that the characters “DJ Ara” and “Pasbara” were created by Aravinda and Disna when they were presenting Hiru FM’s morning show. The name “DJ Ara or “Ara” were nicknames of Aravinda, and the name Pasbara in the program was created to rhyme with the “Ara”. While not denying the similarities between the Hiru FM’s morning show and their new program, they contended that most other radio stations have similar programs.

After the case was instituted, an enjoining order had been issued by the Commercial High Court of Colombo, restricting Siyatha FM, Aravinda Chandrakumara and Disna Munasinghe from commercially using the names and characters “DJ Ara” and “Pasbara” in radio programs.  On 22nd November 2017 the Commercial High Court issued an interim injunction, confirming the enjoining order earlier issued after carefully analyzing the evidence and the legal submissions of both parties.

In its order dated 22th November 2017, the court observed that the Defendants cannot deny the Plaintiff’s contributions towards the success of the Plaintiff’s own morning show and that economic rights of Hiru FM’s radio program vest with the employer, i.e. Asia Broadcasting Corporation (Pvt) Ltd. The Court further held that given the number of similarities between the two programs, the use of the names and characters such as “DJ Ara” and “Pasbara” by Siyatha FM in its new program constitutes unfair competition within the meaning of the Intellectual Property Act No. 36 of 2003 of Sri Lanka.

Counsel Manoj Bandara with Thidas Herath, instructed by Sudath Perera Associates appeared on behalf of Asia Broadcasting Corporation (Pvt) Ltd and Hiru FM.  The Defendants were represented by Counsel Murshid Maharoof with Dushantha De Silva instructed by Nelum  Senanayake Associates.

Copyright laws in Sri Lanka are generally under-utilized due to lack of awareness. Cases such as this are evidence of the growing trend in Sri Lankan entertainment industry to protect their creative and artistic works.

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