Orissa High Court: In an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of Arbitrator to adjudicate the dispute between the parties concerning infringement of copyright, Chakradhari Sharan Singh, CJ. held that dispute related to infringement of copyright against a particular person is arbitrable and arbitrator can be appointed under Section 11 of the Arbitration Act.
The respondent submitted that the dispute relating to infringement of copyright is not arbitrable in view of Supreme Court’s decision in Vidya Drolia v. Durga Trading Corpn., (2019) 20 SCC 406 wherein it was observed that-
“A judgment in rem determines the status of a person or thing as distinct from the particular interest in it of a party to the litigation; and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided. Such a judgment “settles the destiny of the res itself” and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence. By contrast, a judgment in personam, “although it may concern a res, merely determines the rights of the litigants inter se to the res”. Distinction between judgments in rem and judgments in personam turns on their power as res judicata, i.e. judgment in rem would operate as res judicata against the world, and judgment in personam would operate as res judicata only against the parties in dispute. Use of expressions “rights in rem” and “rights in personam” may not be correct for determining non-arbitrability because of the inter-play between rights in rem and rights in personam. Many times, a right in rem results in an enforceable right in personam. Therefore, a claim for infringement of copyright against a particular person is arbitrable, though in some manner the arbitrator would examine the right to copyright, a right in rem. Arbitration by necessary implication excludes actions in rem.”
The Court on perusalf of Vidya Drolia (supra) held that the submission was wholly misconceived as nowhere in Vidya Drolia (supra), it has been held that dispute relating to infringement of copyright is non-arbitrable. Hence, the Court reiterated that claim for infringement of copyright against a particular person is arbitrable,
Therefore, the Court appointed Dr. Justice (Retd.) Akshaya Kumar Rath, Calcutta High Court as the sole Arbitrator to adjudicate the disputes between the parties.
[Binaya Kumar Naik v. Sanjay Kumar Naik, 2024 SCC OnLine Ori 2784, decided on: 11-12-2024]
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