Defendant has infringed the sound recordings, cinematograph films and underlying literary and musical works belonging to plaintiff’s repertoire of songs – A bare perusal of the screenshot of the infringing recording (Ex. PW-2/3) and the cue sheet shows that the defendant has amongst others infringed the sound recordings, cinematograph films and underlying literary and musical works belonging to plaintiff‟s repertoire of songs „IkGoli Mere Seena Cheer Gayi‟ from the film „Born This Way‟, the song Íshq Mein Ruswa‟ from the film „Dangerous Ishq‟, the song „Ring Ring‟ from the film „Mr. Joe B Carvalho‟. As the defendant has broadcast the plaintiff‟s video songs without any license, this Court is further of the opinion that defendant has infringed the plaintiff‟s rights under Sections 14(a)(iii), 14a(iv), 14(d)(iii) and 14(e)(iii) read withSection 51 of the Copyright Act, 1957.

2018  (75) PTC  602 (DELHI)

 

HEAD NOTE ::

Copyright Act, 1957 Sections 14(a)(iii), (iv), 14(d)(iii), 14(e)(iii) R/w 51 – Cinematograph – Infringement of copyright – Damages –  Defendant has infringed the sound recordings, cinematograph films and underlying literary and musical works belonging to plaintiff’s repertoire of songs – A bare perusal of the screenshot of the infringing recording (Ex. PW-2/3) and the cue sheet shows that the defendant has amongst others infringed the sound recordings, cinematograph films and underlying literary and musical works belonging to plaintiff‟s repertoire of songs „IkGoli Mere Seena Cheer Gayi‟ from the film „Born This Way‟, the song Íshq Mein Ruswa‟ from the film „Dangerous Ishq‟, the song „Ring Ring‟ from the film „Mr. Joe B Carvalho‟. As the defendant has broadcast the plaintiff‟s video songs without any license, this Court is further of the opinion that defendant has infringed the plaintiff‟s rights under Sections 14(a)(iii), 14a(iv), 14(d)(iii) and 14(e)(iii) read withSection 51 of the Copyright Act, 1957. – Plaintiff is held entitled to compensation to the extent of Rs. 43,20,000/- – Suit  decreed. Remained Unrebutted . [Paras 15, 16]

IN THE HIGH COURT OF DELHI AT NEW DELHI

 

+     CS(COMM) 14/2015

 

SUPER CASSETTES INDUSTRIES

PRIVATE LIMITED                     ….. Plaintiff

Through: Mr. K.K. Khetan, Advocate

 

versus

 

SKY VISION DIGITAL

CABLE NETWORK                         ….. Defendant

Through: Mr. Sudeep Chatterjee, Advocate

with Ms. Drishti Chatterjee,

Advocate.

 

%                           Date of Decision: 06th August, 2018

 

CORAM:

HON’BLE MR. JUSTICE MANMOHAN

 

JUDGMENT

MANMOHAN, J: (Oral) I.A. 10413/2018 Present application has been filed by the learned counsel for defendant seeking discharge from the present case. Along with the application, learned counsel for defendant-applicant has enclosed a formal notice of discharge addressed to the defendant.

The delivery report annexed with the application shows that the same has been delivered to the defendant on 31st July, 2018.

As the defendant has still not contacted its counsel, the present application is allowed and the learned counsel for defendant is discharged.

CS(COMM) 14/2015

  1. Since none is present for the defendant. It is proceeded ex parte.
  2. It is pertinent to mention that present suit has been filed for permanent injunction restraining infringement of copyright, damages and rendition of accounts. The prayers made in the plaint are reproduced hereinbelow:-

“37. The Plaintiff prays that this Hon‟ble Court may be pleased to grant the following reliefs:

(i) An order of permanent injunction restraining the Defendant, their officers, servants, agents, partners and representatives and all others acting for and on their behalf from either engaging in themselves or from authorizing the recording, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works (lyrics) and Musical works (musical composition) or other work or part thereof throughout India, that is owned by the Plaintiff including all works whereon the Plaintiff has shown its copyright under section 52A of the Copyright Act or doing any other act that would lead to infringement of the Plaintiff’s copyright;

(ii) An order for rendition of accounts of profits directly or indirectly earned by the Defendant, their officers, servants, agents, partners and representatives and all others acting for and on their behalf, from their infringing activities and unlawful conduct throughout India, and a decree for the amount so found due to be passed in favour of the Plaintiff;

(iii) An order of delivery up to the plaintiff or its authorised representative by the Defendants, their officers, servants, agents, partners and representatives and all others acting for and on their behalf, of all infringing tapes, copies and negatives, etc. bearing the copyrighted materials of the Plaintiff;

(iv) An order directing the Defendants, their officers, servants, agents, partners and representatives and all others acting for and on their behalf to pay to the Plaintiff damages to the tune of Rs.1,00,01,000/- towards past damages and further grant future damages along with pendente lite and future interest at rate of 18% p.a. till the time the decretal amount is pad;

(v) An order awarding the costs of the present suit to the Plaintiff;

AND Any further orders as this Hon‟ble Court deems fit and proper in the facts and circumstance of this case.”

  1. On 07th December, 2015, this Court granted an ex-parte ad interim injunction in favour of the plaintiff and against the defendant. The relevant portion of the said order is reproduced hereinbelow:-

“I have heard the learned counsel for the plaintiff who has referred various paras of the plaint as well as the documents placed on record. Prima facie, it appears that the defendant is engaged in broadcasting/communicating to the public the cinematographic clips of films, recordings, literary and musical works of the plaintiff. I am of the view that the plaintiff has been able to make out a strong prima facie case for the grant of an ex parte ad-interim injunction. Hence, till the next date of hearing, the defendant is restrained from broadcasting, distributing and communicating to the public the cinematographic filmssound recordings and all related works including the musical works of the plaintiff.”

  1. Since defendant initially did not enter appearance despite service, it was proceeded ex parte vide order dated 01st April, 2016. However, on 30th July, 2016, the said order dated 01st April, 2016 was re-called and the ex parte interim injunction was confirmed till the disposal of the suit.
  2. On 18th December, 2017, the following issues were framed: –

(i) Whether the plaintiff is entitled to permanent injunction, damages as well as rendition of accounts as prayed for? OPP

(ii) Whether the plaintiff has any copyright in the impugned works forming the subject matter of the suit? OPP

(iii) Whether the defendant is guilty of infringement of copyright of the plaintiff? OPP

(iv) Whether this Court has the territorial jurisdiction to entertain and try the present suit? OPD

(v) Relief

  1. Although the plaintiff‟s evidence has been recorded, the defendant neither conducted cross-examination nor lead any evidence. Consequently the defendant has failed to discharge the burden cast on it.
  2. It is the plaintiff’s case that it is one of the largest and most reputed music companies in the country and is the owner of a large repertoire of copyrighted works comprising cinematographic films, sound recordings etc. operating under the brand “T-SERIES”.
  3. It is further stated that plaintiff‟s business also includes giving licences to various organizations such as Broadcasting Organizations, Television Channels, FM Radio Stations, Multi-System Operators (MSO) and Cable TV Operators etc. for the use of its copyrighted works.
  4. Mr. K.K. Khetan, learned counsel for the plaintiff states that the defendant- Sky Vision Digital Cable Network is one of the largest ground cable network provider based in Yamuna Nagar, Haryana and is providing Cable Television services under the logo “SDN Movies” to various subscribers having operation in the State of Haryana. He further states that the defendant provides services such as Non-Stop Music, Non Stop Entertainment wherein Hindi songs from commercial films, private albums and film extracts are broadcast extensively and freely.
  5. He states that in August, 2015 in the course of random monitoring of the defendant‟s channels, the plaintiff company came to know about the unauthorized and unlicensed use of its copyrighted works on the defendant‟s cable television network. He further states that on coming to know of the said infringement, the plaintiff sent a letter dated 17th August, 2015 and a legal notice dated 23rdSeptember, 2015 giving specific instances of infringement of the plaintiff‟s repertoire by the defendant and requesting it to obtain the requisite public performance license to make its broadcasts legal. However, no reply was received.
  6. The plaintiff has filed its evidence by way of two affidavits. One affidavit of PW-1 Mr. S.K. Dutt and another of PW-2 Mr. Mohit Sharma.
  7. PW-1 has relied upon various decisions regarding the plaintiff‟s copyright works as Ex. PW-1/3 (Colly). PW-1 has further proved the copies of copyright certificates and assignment deeds illustrating that the plaintiff is the exclusive copyright owner of the aforementioned copyrighted works as Ex.PW-1/4 to Ex.PW-1/6. The letter dated 17th August, 2015 along with the postal receipt have been proved as Ex.PW- 1/7 (Colly) and the legal notice dated 23rd September, 2015 along with the postal receipt and courier receipt have been proved as Ex.PW-1/8 (Colly). The plaintiff‟s rate card on its website is proved as Ex.PW-1/9. PW-1 in his affidavit has stated “A bare perusal of the screenshot of the infringing recording shows the logo of the Plaintiff being „T-series‟ clearly shows that the Defendant was aware that the audio visual work broadcasted on their network belonged to the Plaintiff….That as per the information available, the Defendant has Sixty thousand connections and the same was specifically stated in the legal notice addressed to the Defendant. The said Legal Notice was sent through Registered Post as well by Courier Service and the same were not received back unserved. I am advised that the adverse inference may kindly be drawn up against the defendant regarding the correctness of the contents of the said Legal Notice … I further state that it is believed that the infringing activity was continuing for a period of at least four (4) months…I say that the subscription rate of the Plaintiff per account is charged at INR 18 per month. Therefore, I further state that the losses for the entire period of four (4) months to the Plaintiff would amount as:

60,000 (Subscriptions) x 18 (Per month license fee) x 4 (No. of months) = INR 43,20,000.00.

I am advised to say that Section 58 of the Copyright Act, 1957, entitles the Plaintiff to conversion damages which would be the entire cost of the subscription. Therefore, I say that typically, the cost ofsubscription channel would roughly be several hundred rupees, for example INR 700 per month for Tata Sky, INR 400 per month for Hathway Connections etc. Thus, I am advised to say that if the conversion charges are to be granted by this Hon‟ble Court, then the aforesaid figure would approximately rise to 500 x 60,000 = INR 3,00,00,000 (Rupees Three Crores Only).”

  1. PW-2 has proved the CD/DVD recordings of the infringing broadcasts made on 07th August, 2015 along with cue-sheets containing details of infringing broadcasts such as time of recording, film/album belonging to the plaintiff‟s repertoire, duration of recording and reading along with the screenshots of the CD recordings as Ex.PW-2/1 and Ex.PW-2/2. Further, screenshots have been exhibited as Ex.PW-2/3 (Colly). PW-2 has also proved letter dated 17th August, 2015 issued by him to the defendant as Ex.PW-2/4(Colly).
  2. Having heard learned counsel for the plaintiff and having perused the evidence as well as documents placed on record, this Court is of the opinion that plaintiff has proved the facts stated in the plaint and has also exhibited the relevant documents in support of its case.
  3. A bare perusal of the screenshot of the infringing recording (Ex. PW-2/3) and the cue sheet shows that the defendant has amongst others infringed the sound recordings, cinematograph films and underlying literary and musical works belonging to plaintiff‟s repertoire of songs „IkGoli Mere Seena Cheer Gayi‟ from the film „Born This Way‟, the song Íshq Mein Ruswa‟ from the film „Dangerous Ishq‟, the song „Ring Ring‟ from the film „Mr. Joe B Carvalho‟. As the defendant has broadcast the plaintiff‟s video songs without any license, this Court is further of the opinion that defendant has infringed the plaintiff‟s rights under Sections 14(a)(iii), 14a(iv), 14(d)(iii)and 14(e)(iii)read withSection 51 of the Copyright Act, 1957.
  4. Since the plaintiff‟s evidence has gone unrebutted, said evidence is accepted as true and correct. In the opinion of this Court, the defendant has deliberately stayed away from this Court‟s proceeding with a view to frustrate the plaintiff‟s claim for damages. The said act is unjustified.
  5. As the plaintiff in his evidence has stated that the defendant had 60,000 subscriptions and the plaintiff used to charge licence fee of Rs.18/- per connection per household per month plus applicable taxes, the plaintiff is held entitled to compensation to the extent of Rs.43,20,000/- (60,000 subscriptions x 4 months x Rs.18/-).
  6. Consequently, present suit is decreed in accordance with para 37

(i) of the plaint as well as actual costs incurred by the plaintiff. The costs shall amongst others include the lawyer‟s fees as well as the amount spent on Court-fees. The plaintiff is also held entitled to compensation of Rs.43,20,000/-. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J AUGUST 06, 2018 mn/js

 

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