The Indian Performing Right ... vs Mr. Badal Dhar Chowdhry & Ors
2010 Latest Caselaw 1758 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS)1014/2004


%                                          Date of decision: 5th April, 2010


THE INDIAN PERFORMING RIGHT SOCIETY LTD              ..... Plaintiff
                  Through: Mr. Jagdish Sagar, Advocate


                                     Versus


MR. BADAL DHAR CHOWDHRY & ORS            ..... Defendants
                  Through: Mr. Somnath Mukherjee, Advocate for
                           Defendants 2 and 3.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                 Yes

2.     To be referred to the reporter or not?                 Yes

3.     Whether the judgment should be reported                Yes
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The Plaintiff, registered as a Copyright Society under Section 33 of the

Copyright Act, 1957 has instituted this suit against one Mr. Badal Dhar

Chowdhry (Defendant No.1), the Calcutta Improvement Trust (Defendant No.2)

and the State of West Bengal (Defendant No.3) for the relief of permanent

injunction to injunct the Defendants from using the musical works in which the

Plaintiff Society has a copyright. It is inter alia the case of the Plaintiff that

Defendant No.1 is an organizer of live shows involving the exploitation/public

performance/communication to the public of literary and musical works; the

Defendants 2 and 3 have premises which are leased out by them to organizers

such as the Defendant No.1 for shows which involve the use and communication

to the public of music. The Plaintiff contends that the Defendants in the shows

organized by them / permitted to be organized by them, cannot play music in

which the plaintiff claims copyright, without authorization from and payment to

the Plaintiff.

2. The Defendant No.1 did not appear despite service and has been

proceeded against ex parte. The Defendants No. 2 and 3 filed a written

statement. By order dated 18th July, 2006, on the application of the Plaintiff for

interim relief, the Defendants were restrained from using or permitting use of

their premises and/or any other auditorium owned or administered by the

Defendants 2 and 3 to be used to communicate musical works by live

performance or by playing recorded music to the public in violation of the

Plaintiff's copyright and without ensuring that the Plaintiff has authorized the

said event.

3. On 11th July, 2008, after hearing the counsel for the parties and perusing

the written statement of the Defendants No. 2 and 3, it was found that the

Defendants No. 2 and 3 are not really contesting the suit. In the circumstances

aforesaid, need was not felt to strike issues in the suit. The counsel for the

Defendants No. 2 and 3 however stated that the Defendants No. 2 and 3 need to

formulate rules for securing the copyright claimed by the Plaintiff and in that

regard required the assistance of the Plaintiff. This court found that the only

assistance which the Plaintiff could render to the Defendants No. 2 and 3 in this

regard was to make available to the Defendants No. 2 and 3 the list of Artists and

Works in which the Plaintiff claims rights so that the Defendants No. 2 and 3 do

not become privy to the infringement thereof. The counsel for the Plaintiff and

the counsel for the Defendants No. 2 and 3 were thus directed to take instructions

in this regard and it was further observed that the suit would also be disposed of

in terms thereof. On the next date further time was sought for taking instructions

and for responding to the suggestion of this court. However, upon no instructions

/ comments forthcoming, arguments were heard from the counsel for the Plaintiff

and the counsel for the Defendants No. 2 and 3 and orders reserved. The counsel

for the Plaintiff has also filed synopsis of submissions with copies of the

judgments relied upon.

4. The Plaintiff is a non-profit making body, to monitor, protect and enforce

the rights and interest and privileges of its members comprising of authors,

composers and publishers of literary and/or musical works as well as on behalf of

the members of other sister societies who are also claimed to be the owners of

copyright in literary and musical works. The Plaintiff claims to be the sole

representative of such artists and musical work, not only from India but also from

the entire world. The Plaintiff society claims to be affiliated to 200 societies, in

the world, of authors and composers. The authors, composers and publishers of

Indian literary and musical works, who are members of the Plaintiff society are

stated to have executed deeds assigning the public performing rights that exist in

respect of their literary and musical works and which they may produce in future

in favour of the Plaintiff society. Though the Plaintiff claims rights in musical

works and against infringement of copyright wherein injunction is claimed in the

present suit but neither in the plaint nor otherwise, has the Plaintiff disclosed as

to what are the said literary / musical works in which it has a copyright. Upon

the same being enquired from the counsel for the Plaintiff, the counsel states that

the Plaintiff has copyrights for public performance in nearly all musical works

emanating not only from India but also from all over the world. However the

fact remains that the counsel is unable to make a statement that there is no music

in which the Plaintiff does not have a copyright.

5. This court being of the opinion that no vague, in-determinative and

indefinite injunction can be issued, asked the counsel for the Plaintiff to furnish

to the Defendants the list of the musical works in which it has a copyright.

Though time was taken to seek instructions in this regard but no such list was

furnished. It was put to the counsel for the Plaintiff that in the present day and

time, there must be a database recorded in electronic media of the musical works

in which the Plaintiff claims copyright and even if it was physically impossible

for the Plaintiff to furnish list of such works, the Plaintiff should give particulars

of the said electronic database or website from which the Defendants could know

the works in which the Plaintiff has a copyright. The Plaintiff has been unable to

fulfill the said requirement also.

6. In the circumstances, the counsel for the Plaintiff was called upon to

address on the aforesaid limited aspect of the possibility of issuance of an

injunction restraining the Defendants from violating the works in which the

Plaintiff has a copyright, without furnishing the list of works in which the

Plaintiff has a copyright. The counsel in oral or written arguments has not been

able to satisfy this court as to how such a vague and indefinite injunction can be

issued.

7. The court ought not issue an injunction which is vague or indefinite.

Breach of injunction has serious consequences for the violator. However, before

the Defendant can be so injuncted, the Defendant ought to be made aware of the

precise act which he is prohibited from doing. A vague injunction can be an

abuse of the process of the court and such a vague and general injunction of

anticipatory nature can never be granted. Lord Upjohn in Redland Bricks Ltd.

Vs. Moeris (1970) A.C. 652 observed that a defendant is entitled to know what

he is required to do or to abstain from and this means not as a matter of law but

as a matter of fact. The Division Bench of this court also, in Time Warner

Entertainment Co. L.P. Vs. R.P.G. Netcom AIR 2007 Delhi 226 has held that a

vague order of injunction which is uncertain in its application and likely to cause

confusion should not be passed; it will be impossible for the courts to ensure

implementation and compliance without the Defendant or the court knowing as

to which works the injunction applies. Reliance was further placed on Columbia

Picture Industries Vs. Robinson (1987) Ch. 38.

8. Though there is precedent for injuncting others than those impleaded in

the suit and who may be found violating the rights, in the field of trade mark/

copy right and what has commonly come to be known as John Doe / Ashok

Kumar orders, but in that case also the mark or the work with respect whereto

injunction is issued is identified. In the present case, the Plaintiff is unable to

identify the works in which it has rights and with respect whereto the Defendants

are sought to be restrained.

9. Though the Plaintiff claims that it has copyright in most of the musical

works but I find reference to another such copyright society in the judgment

dated 27th January, 2010 in CS(OS) 1216/2007 titled The Indian Performing

Right Society Ltd. Vs. Punit Goenka reported as MANU/DE/0234/2010. I am

therefore not inclined to decree the suit of the Plaintiff. However, the same shall

not be considered as a licence/permission to the Defendants to violate the

copyrights, if any, of the Plaintiff and if the Defendants do so they shall continue

to remain liable for the same.

10. Though as aforesaid no issues were framed in this suit but I may notice

that the Defendants No. 2 and 3 have in their written statement controverted the

territorial jurisdiction of this court to entertain the suit. The Plaintiff society has

its registered office at Mumbai and has invoked the territorial jurisdiction of this

court contending that it has a branch office at Delhi and on the basis thereof

invoked Section 62(2) of the Copyright Act. All the Defendants, as aforesaid,

are based at Calcutta and the injunction claimed against them is also with respect

to the violation/infringement of copyright of the Plaintiff occurring at Calcutta.

This court has in a judgment in another suit filed by the Plaintiff namely, The

Indian Performing Right Society Limited Vs. Sanjay Dalia 143 (2007) DLT

617, on similar facts held that the courts at Delhi would have no jurisdiction.

Appeal filed by the Plaintiff against the said judgment has been dismissed by the

Division Bench of this court vide judgment reported in 155(2008) DLT 164.

This court would for this reason also not have territorial jurisdiction to entertain

the suit or to injunct the Defendants.

The suit therefore fails and is dismissed. However, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 5th April, 2010 M