Case No. 37/2011. Case: Film & Television Producers Guild of India Vs Multiplex Association of India (MAI), Mumbai and Ors.. Competition Commision of India

Case Number:Case No. 37/2011
Party Name:Film & Television Producers Guild of India Vs Multiplex Association of India (MAI), Mumbai and Ors.
Counsel:For Appellant: Sh. Vibhu Bhakru and Sh. Harshvardhan Jha and For Respondents: Sh. Ramji Srivasan, Sh. G.R. Bhatia, Sh. Saikrishana Raja Gopal, Sh. Ravishekhar Nair, Ms. Nidhi Singh, Sh. Rohit K. Aggarwal, Ms. Diya Kapoor, Sh. Karan Chandhoke, Sh. H.S. Bobby Chandhoke, Sh. Tarun Singla and Sh. Rajiv Garg, Advocates
Judges:Ashok Chawla (Chairman), H.C. Gupta, Member, Dr. Geeta Gouri, Member, Anurag Goel, Member, M.L. Tayal, Member and Shiv Narayan Dhingra, Member
Issue:Competition Act, 2002 - Sections 19(3), 2(b), 2(c), 2(h), 2(l), 2(r), 2(t), 26(1), 27, 3, 3(1), 3(3), 3(3) (a), 3(3)(a), 3(3)(b), 33, 4, 4(2)(a), 4(2)(c), 5
Judgement Date:January 03, 2013
Court:Competition Commision of India
 
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Order:

  1. The information in the present case was filed on 22.07.2011 by Film & Television Producers Guild of India, India (hereinafter, referred to as "FTPGI"), against Multiplex Association of India (hereinafter, referred to as "MAI"/"OP 1") and its members, consisting of, PVR Limited (OP 2), Inox Leisure Limited (OP 3), Fame India Limited (OP 4), Reliance Media Works Limited (OP 5), Cinemax India Limited (OP 6), Fun Multiplex Pvt. Ltd., (OP 7), Chaphalkar Brother, Pune (OP 8), HDIL Entertainment Pvt. Ltd., (OP 9), DT Cinemas (OP 10), Movietime Cineplex Pvt. Ltd. (OP 11), Satyam Cineplexes Limited (OP 12), SRS Entertainment & Retail Limited (OP 13), AB Movies Pvt. Limited (OP 14) and Velocity Limited (OP 15), alleging contravention of the provisions of Section 3 and 4 of the Competition Act, 2002 (hereinafter, referred to as the "Act"). The facts of the case, in brief, are as under:-

  2. As per the information, the Informant is an autonomous, non-profit making film trade body formed for the betterment of the film and motion picture industry, comprising of members who are the stakeholders of the motion picture industry. It acts as a principal negotiator with the Government of India ("Government") on various critical issues related to the motion picture industry, with a view to resolve any internal and external trade disputes of the industry, besides liaising with foreign delegations to provide international exposure for its members and arranging conclaves for the benefit of its members, etc.

  3. It has been stated in the information that OP 1 is an association of multiplexes and OP 2 to 15 are its members inter-alia, engaged in the business of operating multiplex theatres in various Indian cities (some of such members even operate their chain of multiplexes outside India). As per the Informant, the OPs collectively control almost 60% of the entire multiplex film exhibition business in India.

  4. As per the averments made in the information, the film business primarily involves three stages viz., production, distribution and exhibition. Once a film is produced by a film producer, he either approaches a film distributor to distribute his film to the exhibitors or directly approaches the film exhibitors. Therefore, distribution and exhibition are the end points in the value chain of the film business and are therefore of utmost importance. A producer cannot make a successful film unless he can successfully distribute his film to the film exhibitors. Typically a distributor acquires theatrical distribution rights from the producer and recovers its costs from the revenues arising from the exhibition of the film through the exhibitors in single screen and multiplex theatres.

  5. It has been stated that there are various forms of arrangement between producers/distributors and exhibitors for commercial exploitation of the films. Most common among them is a revenue sharing arrangement. In the year 2009, there was a disagreement between multiplex owners and film producers over the revenue sharing mechanisms. Producers wanted an equal share of the revenue from movies, while on the other hand, multiplex operators wanted to link the revenue sharing ratio to the performance of movies on box office. Ultimately a settlement was reached among FTPGI, OP 1 and its members (OP 2-15) resulting in a master revenue sharing agreement between the distributors/producers and multiplex operators.

  6. As per the Informant, at that time, the multiplex owners under the aegis of FICCI-Multiplex Association of India (FMAI) simultaneously, filed an information (Case No. 1/2009) before the Competition Commission of India ("Commission") against the United Producers/Distributors Forum (UPDF) and others, wherein FMAI alleged the existence of an anti-competitive agreement amongst the producers/distributors. The Commission finally found the allegation to be established and vide order dated 25.05.2011 imposed a penalty of Rs. 1.00 lakh on each of the Opposite Parties in Case No. 1/2009.

  7. It has been further averred that the term of aforesaid master agreement entered into between the members of the Informant and the OPs expired in and around 30.06.2011. The Informant has alleged that its members were willing to supply their respective films for exhibition in the multiplexes owned/operated by the OPs on the same terms and conditions as recorded in the aforesaid master agreement. However, the OPs (2-15), after expiry of the master agreement on 30.06.2011, refused to exhibit films on the same terms and conditions and began imposing unreasonable terms and conditions for the exhibition of films.

  8. It has been alleged by the Informant that OP-1 has issued a directive to its members, i.e., OPs (1-15) whereby no multiplex owner/operator is allowed to approach a film producer/distributor individually for exhibition of a film. OPs (2-15) are bound to follow this directive or else face penal action. The Informant has also alleged that the OPs keep the decision about the release of a film in abeyance till the last day. Consequently as the producer by then would have made significant investments in the promotion and the advertisement of his film, he remains in no position to disagree with the unreasonable terms put forth by the OPs. In these circumstances, the OPs (1-15) force the members of the Informant to accept their terms under the threat of not exhibiting the film in their multiplexes.

  9. It has been further alleged that the OPs had pressurized Vishesh Films, the distributor of the film 'Murder 2', to accept certain unreasonable terms and conditions related to rebate and additional revenue sharing mechanism for the release of the film. The terms, alleged to have been dictated by the OPs are briefly summarized as under:

    1. The Revenue Sharing would be as under:

  10. 1st Exhibition Week: 50% of the Net Collections to be paid to the producer/distributor;

  11. 2nd Exhibition Week: 42.5% of the Net Collections to be paid to the producer/distributor;

  12. 3rd Exhibition Week: 37.5% of the Net Collections to be paid to the producer/distributor;

  13. 4th Exhibition Week onwards till the last Exhibition Week: 30% of the Net Collections to be paid to the producer/distributor.

    1. In the event the number of Prints across the Territory for exhibition of the Film, exceeds 692 in aggregate, and the aggregate Net Box Office Collection (NBOC) for such Film, computed as on 9th December, 2010, an aggregate of all the exhibition weeks, during the first theatrical release of the Film, in all the multiplexes of the six National Multiplex Chains i.e. Big, Cinemax, Fame, Fun, Inox and PVR, exceeds Rs. 24,23,00,000/- (Rupees twenty four crores and twenty three lacs only) ("Benchmark Amount") then Vishesh Films would be entitled to receive an additional revenue share of 2.5% of the NBOC in the 1st and the 2nd exhibition week, i.e. the Distributor shall then receive 52.5% of the NBOC in the 1st exhibition week and 45% of the NBOC in the 2nd exhibition week.

    2. Rebate: In the event Vishesh Films plans the release of a Film in such a manner that the number of Prints across the Territory for exhibition of the Film, exceeds 692 in aggregate, and the aggregate NBOC for such Film, across all the multiplexes comprised in the National Multiplex Chains i.e. Big, Cinemax, Fame, Fun, Inox and PVR, computed as on 9th December, 2010, is less than Rs. 13,85,00,000/- (Rupees Thirteen crores and Eighty Five Lacs only) ("Lower Benchmark Amount") computed at the end of all the exhibition weeks for the first theatrical release of the Film, then the Exhibitor shall be entitled to receive rebate in the Revenue Share, to be shared with M/s. Vishesh Films of 2.5% of the NBOC in the 1st and the 2nd exhibition week, i.e. M/s. Vishesh Films shall then receive 47.5% of the NBOC in the 1st exhibition week and 40% of the NBOC in the 2nd exhibition week.

  14. As per the Informant, the film "Murder 2" had to be released on 08.07.2011 and the OPs were not ready to exhibit the said film in their respective multiplexes until Vishesh Films agreed to their demands. The Informant has alleged that due to the aforesaid reason, Vishesh Film had no other option but to enter into the agreement with the OPs on the terms and conditions dictated by them under duress.

  15. The Informant has also alleged that after the second week of exhibition of the said film, Mr. Mukesh Bhatt of Vishesh films addressed an email to all the OPs with copy to the distributors stating that since the film had performed well on box office, the OPs should exhibit minimum 6 shows of the film per day instead of 2 shows per day. However, the OPs failed to adhere to such request and on the contrary, in most of the multiplexes; the OPs deliberately removed the film from exhibition after the third week.

  16. As per the Informant, similar to the situation of Vishesh Films, the OPs have pressurized other members of the Informant to accept unreasonable terms and conditions on rebate and additional revenue share, similar to those mentioned above.

  17. The Informant has further alleged that a producer/distributor have no control on scheduling the exhibition of the films. The OPs exclusively control the exhibition schedule of the films i.e., number of shows, timing of shows etc. The OPs deliberately cut down the number of shows and schedule the timing of the shows of the films of the producers/distributors in such a manner that it becomes very unlikely for the Net Box Office Collections to exceed the Benchmarks stipulated in the agreements with the respective OPs and thereby the share of producers/distributors also stands accordingly reduced.

  18. As per the Informant, in addition to aforesaid, the OPs further deduct entertainment tax from the Net Box Office Collections, before arriving at the share of the revenue for the producers/distributors, even in the states where such entertainment tax has been abolished. While the films of the producers/distributors are graded and terms...

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