Universal Music India Pvt. Ltd vs Super Cassettes Industries ...
2019 Latest Caselaw 28 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION
                       IN ITS COMMERCIAL DIVISION

                        COMMERCIAL I.P.SUIT NO.1 OF 1986

Universal Music (India) Pvt. Ltd.                )....Plaintiff
           V/s.
Super Cassettes Industries Pvt. Ltd. & Ors. )....Defendants

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Mr.Sandeep Parikh a/w Mr.Ayaz Bilawal and Ms.A.Sayed I/by M/s.Bilawala and Co. for plaintiff.

[Ms.Sanjana Chatterjee-authorized signatory of plaintiff present]. Dr.Abhinav Chandrachud a/w Ms.Mahi Lalka and Mr.Pravin Singh I/by Ashok Singh for defendant no.1.

[Mr.Ajeet Kohil-Principal Officer/General Manager & authorized signatory of defendant no.1 present in Court].

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CORAM : K.R.SHRIRAM,J DATE : 20.6.2019

P.C.:-

1. At the outset, Mr.Parikh appearing for plaintiff states that

plaintiff is pressing for reliefs only in terms of prayer clauses-(a), (b)

and (d) which read as under :-

"(a) That it be declared that the plaintiffs are the exclusive owners and/or assignees of the copy-rights in the said musical works namely in the songs and/or lyrics and/or music forming part of the cinematograph film

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entitled `Janbaaz' produced by Defendant No.3 and 4 and recorded on the sound track thereof and as such they are exclusively entitled to the license the said musical works, including for the purpose of making of records and/or manufacture of records, tapes,and/or pre- recorded cassettes containing the said musical works to the exclusion of all others ;

(b) That it be declared that Defendants No.3 and 4 have no right to issue any license and/or permission to record the said musical works or any part thereof and/or manufacture any records, tapes,and pre-recorded cassettes containing the said musical work to any one, including under provisions of Section 52 (1) (d) of the Copy Right Act, 1957 ;

(d) That Defendant No.3 and 4 by themselves, their servants and agents be restrained by a permanent injunction of this Hon'ble Court from holding themselves out as the owners of the copy-rights in the said musical works including the records, and/or permit any one to record the said musical works or any part thereof and/or manufacture of records, tapes and pre-recorded cassettes containing the said musical works.

2. At the outset, Mr.Parikh states that in prayer clause-(b) a

typographical error has crept in as much as in the provision of Copy

Rights Act 1957 it should be section 52(1) (j) and not section 52 (1)

(d). Mr.Parikh seeks leave to amend prayer clause. Dr.Chandrachud

for defendant no.1 has no objection. I also find in paragraph-19 of

the plaint, reference is to section 52 (1) (j) and not (d). Therefore,

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leave to amend granted. Amendment to be carried out forthwith. Re-

verification dispensed with.

3. Mr.Parikh states that defendant no.4 has died and plaintiff

do not wish to prosecute the suit against the legal heirs of defendant

no.4.

As regards defendant no.2, Mr.Parikh states that plaintiff

do not wish to prosecute the suit against defendant no.2. Therefore,

suit as against defendant nos.2 & 4 stands dismissed as withdrawn.

4. As regards defendant no.1, Mr.Parikh states that plaintiff

and defendant no.1 have entered into consent terms signed by the

authorized signatory of plaintiff and authorized signatory of defendant

no.1 and their respective advocates. The same is taken on record and

marked `X' for identification. Counsel state that signatories to the

consent terms are present in Court and identify by them. For ease of

reference, the consent terms is scanned and reproduced hereinunder :-

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5. Suit accordingly stands decreed against defendant no.1.

Drawn up decree dispensed with.

6. Now the only defendant left is defendant no.3. At the

outset I have to note that defendant no.3 has not filed any written

statement. Defendant no.3, however, was permitted to cross-examine

plaintiff's witness.

7. It is the case of plaintiff that by an agreement in writing

dated 11.12.1984 (Exh.P-3) defendant no.3 sold and assigned in

favour of plaintiff for a valuable consideration the copy right in songs,

lyrics and music recorded for the purposes of being incorporated

and/or incorporated on the sound track of a film titled "Janbaaz"

produced by defendant no.4. On the execution of Exh.P-3, plaintiff

manufactured, record and tapes and prerecorded cassettes containing

the said musical works for the purposes of sale in the market all over

India contemporaneously with the release of the film `Janbaaz'.

Plaintiff also gave vide publicity to the release of the said records, pre-

recorded cassettes and tapes manufactured and produced by them.

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8. Sometime on or about 20.5.1986 plaintiff learnt that

defendant no.1 was attempting to release a cover version of the

musical works by the end of May-1986 without necessary license or

permission from plaintiff as assignee/owner of the copy rights of the

musical works of the film `Janbaaz'. Plaintiff therefore, immediately

by two letters both dated 20.5.1986 (Exh.P5 and Exh.P6) called upon

defendant nos.1 & 3 not to release or allow anyone to release cover

versions of any film as per the resolution dated 7.4.1986 passed by all

India Film Producer Council. No reply was received from defendant

no.1 and/or 3 and therefore, plaintiff sent telegrams dated 27.5.1986

(Exh.P7 & Exh.P8, respectively), advising defendant nos.3 and 4 not to

permit defendant no.1 to release the cover version. However,

defendant no.3 failed and neglected to even send reply. According to

plaintiff, despite being informed, defendant no.3 went ahead and even

caused advertisement to be released in newspapers and distributed

hand bills from which it became evident that defendant no.3 had

manufactured records, tapes and prerecorded cassettes of the said film

though the ownership rights were with plaintiff. In the plaint it is

stated that defendant no.3 never responded to any of the

correspondence but continued to infringe plaintiff's rights and

therefore, plaintiff was compelled to file the suit.

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9. Written statement was filed only by defendant no.1. Issues

were framed on 26.4.2006 which read as under :-

"(1) Whether the Defendant No.1 proves that the present suit is filed only as a counter-blast to the Suit No.149 of 1986, filed by the Defendant No.1 in the Court of the District Judge, Delhi as alleged in paragraph No.1 of the Written Statement ?

(2) Whether the Defendant No.1 proves that there is no infringement of copyright of the Plaintiffs in as much as the first owner of the copyright i.e., Defendant Nos.3 and 4 have consented to the Defendant No.1 to make cover version of the song and music of the musical works recorded in the music cassettes in respect of film "JANBAAZ" as alleged in paragraph 4 of the Written Statement ?

(3) Whether the Defendant No.1 proves that the oral inquiry of the Defendant No.1 elicited an oral response from the Plaintiffs to the effect that the copyright owner in the musical work incorporated in the music cassette of the film 'JAANBAAZ" was the Defendant No.3 hereinafter as alleged in paragraph 11 of the Written Statement ?

(4) Whether the Defendant No.1 proves that there was/is an implied consent by the first owner of the copyright permitting/allowing the Defendant No.1 to make cover versions of the songs, music and musical works recorded in the music cassettes of the film "JAANBAAZ" made by the Defendant No.3 and/or Defendant No.4 as alleged in paragraph No.12 of the Written Statement ?

(5) Whether the Plaintiffs prove that the Resolution dated 7th April 1986 passed by All India Film Producers Council is not of binding on the Defendant No.1 ?

(6) Whether the Plaintiffs prove that the Agreement dated 11th December 1984 at Exhibit "A" to the Plaint

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and mentioned in paragraph 3 of the Plaint is valid,binding and subsisting ?

(7) Whether the Plaintiffs prove that the Defendant No.1 entered into a conspiracy to coerce Defendant Nos.3 and 4 to assign for their benefit copyrights to record the said musical works and/or to make records and/or tapes and/or pre-recorded cassettes and/or reproduce the said musical works and/or market the same and/or reproduce the said musical works for the purpose of the sale, thereby infringing the copyright which was vested exclusively in the plaintiffs as annexed in paragraph 11 to the plaint ?

(8) Whether the Plaintiffs prove that the Defendant No.1 committed infringement of the copyright vested in the Plaintiffs as stated in paragraph 8 of the Plaint ?

(9) Whether these Defendant Nos.3 and 4 authorised the Defendant No.1 to record musical work forming part of film "JAANBAAZ" to produce tapes, pre-recorded cassettes and to reproduce the work ?

(10) Whether the Plaintiffs prove that by an agreement dated 19th March 1986, the Defendant No.2 agreed to render exclusive services to the Plaintiffs as stated in paragraph 10 of the plaint ?

(11) Whether the suit is liable to be stayed till disposal of the Suit No.149 of 1986 filed by Defendant No.1 against the Plaintiffs in the Court of the Additional District Judge, Tis Hazari, New Delhi ?

(12) What order and decree ?

10. Plaintiff led evidence of one witness S.P.Sharma (PW-1).

Defendant no.1 also led evidence of one witness Ajit Kohli (DW-1).

Defendant nos.2 & 4 did not participate even in the cross-examination

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but defendant no.3 who has not even filed written statement, did not

lead any evidence but cross-examined plaintiff's witness.

11. The following question and the answer thereto in the cross-

examination of PW-1 by the counsel for D3 is very relevant and the

same read as under :-

Q.4 : As the owner/assignee of the copyright in respect of the suit film, is it not your duty to protect your rights under the Copyright Act ?

Ans. : Yes.

By this question no.4, defendant no.3 has admitted that

plaintiff is the owner/assignee of the copy rights in respect of the suit

film. In prayer clause-(a) plaintiff is seeking a declaration that

plaintiff is the exclusive owner and/or assignee of the copy rights in

the musical works of the said film `Janbaaz'. The suit is being

proceeded only against defendant no.3. In this question defendant

no.3 has admitted that plaintiff is the owner/assignee of the works in

the said film `Janbaaz'. Therefore, prayer clause-(a) as against

defendant no.3 has to be granted and is hereby granted.

12. Prayer clauses-(b) and (d) are only reliefs which are

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consequent to prayer clause-(a). Only the owner/assignee has a right

to issue any license and/or permission to record its musical works or

any part thereof. Only owner can hold itself out as owner of the copy

rights and nobody else. Therefore, in view of the admission of

defendant no.3 that plaintiff is the owner/assignee of the musical

rights of the film `Janbaaz' , it will be only plaintiff who can issue any

license and/or permission to record musical works of the film

`Janbaaz' and it is only plaintiff who can hold out as the owner of the

copy rights of the musical works.

13. In the circumstances, suit stands decreed as against

defendant no.3 in terms of prayer clauses-(a), (b) & (d) which are

reproduced at the beginning of this judgment.

14. All issues are answered accordingly.

(K.R.SHRIRAM,J)

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