Delhi High Court
Indian Performing Right Society ... vs Mr. Vishwanathan & Anr. on 8 November, 2011
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No.2423/2007
% Order decided on : 08.11.2011
Indian Performing Right Society Ltd. ......Plaintiff
Through: Ms. Tanvi Mishra, Adv.
Versus
Mr. Vishwanathan & Anr. .....Defendants
Through: None
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The plaintiff before this court is a company which is
registered under the Companies Act, 1956. The plaintiff is also
registered as a Copyright Society under Section 33 of the Copyright
Act, 1957 (hereinafter referred to as the „Act‟). It is alleged by the
plaintiff that the defendants have committed flagrant violation of the
rights of the plaintiff in the works assigned to him by numerous
members. The plaintiff by way of the present suit has sought the
following relief :
(a) An order for permanent injunction restraining the
defendants, its agents, employees and all others acting on
its behalf from playing of music by live or any other
means, or by way of mechanical devices at the hotel
operated by the defendants and/or channeling musical and
or literally works of the plaintiff or those of its sister
copyright societies, by way of mechanical devices such
as Radio, Cable TV and/or RA. systems within the
defendants‟ premises without obtaining a license from the
plaintiff Society and without paying the requisite
royalties, thereby amounting to infringement of the
plaintiff Society‟s performing Rights in the same.
(b) An order for damages to the tune of Rs.20,05,000/- and a
decree for the same be passed in favour of the plaintiff‟s
Society and against the defendant.
(c) An order for costs of the proceedings.
2. The defendants are ex-parte, the suit was not contested by
the defendants. The plaintiff was asked to proceed evidence by way
of affidavit.
3. It is established in the affidavit by way of evidence that the
plaintiff is a non-profit making body established on 23.08.1969 to
monitor, protect and enforce the rights, interest and privileges of its
members which consists of authors, composers and publishers of
literary and musical works, as well as on behalf of members of other
sister societies who are owners of copyright in their literary and
musical works. The plaintiff has contended that it is, in fact, the sole
representative body as also the sole national copyright society of
authors, composers and publishers of literary and musical works. Its
members consist not only of persons from this country but also other
nationalities.
4. The primary task of the Plaintiff Society is to collect
Royalties from Users of Music and thereafter disburse the same to the
Owners of the Copyright in the Music, whose interest it represents. The
rates of royalty are decided collectively by the members of the Plaintiff
Society.
PERFORMING RIGHTS:
5. Performing Rights under Indian law include: -
• The Right of Performing the Work in Public;
• The Right to Communicate the Work to the Public
by making it available for being seen or heard
or otherwise enjoyed by the public directly or
any means of display or diffusion regardless of whether
any member of the public actually sees, hears or otherwise
enjoys the work so made available and;
• The Right of authorizing any of the aforesaid acts.
6. Music is made by a team of persons comprising different
talents and consequently, the copyright in the different components of
music may belong to a number of individuals.
COPYRIGHTS
7. Under the Act, Lyric Writers and Music Composers create
works, which are recognized as "Literary", and "Musical Works" as
defined under Sections 2 (o) and 2 (p) of the Act respectively. Thus,
while the Music Composer is the owner of the Copyright in the
"Musical Work-as defined in Section 2 (p) of the Act, the Lyric Writer
is the owner of the Copyright in the "Literary Work" as
defined in Section 2 (o) of the Act. Section 14 of the Act further
provides exclusive rights to the owners of such works. Further, under
explanation to Section 2 (ff.) of the Act, „communication to the public‟
includes, within its ambit the communication of any works by satellite
or cable or any other means of simultaneous communication to Hotel
Rooms.
EXCLUSIVE RIGHTS OF A COPYRIGHT OWNER:
8. Under the Act, the Owner of the Copyright in the Literary
or Musical Works enjoys a number of rights exclusively. These rights
are set out in Section 14 (a) of the Act and include the Right to Perform
the Work in Public or communicate it to the Public. Thus, every
broadcasting organization, shop, departmental store, showroom,
emporium, restaurant, hotel, club, disco, bars, office establishments,
television channels, music concerts etc. which play music, impinges on
this right unless it seeks the permission of the Plaintiff Society.
PHONOGRAPHIC PERFORMANCE LIMITED:
9. Phonographic Performance Limited (hereinafter referred
to as PPL), is also a company incorporated under the provisions
of the Indian Companies Act, 1956. PPL is engaged in
the business of carrying on Copyright business of its members
in SOUND RECORDINGS in, which rights vests with its
members who are leading music companies in India. PPL was granted
registration under Section 33 of the Indian Copyright Act, 1957, as a
Copyright Society on 7th May, 1996, vide registration No.
CS/03/SOUND RECORDING/96. This registration entitles it to
charge and collect license fees from users for SOUND
RECORDINGS as defined in Section 2 (xx) of the Act for which
rights vests in its members. PPL, is therefore, charging and collecting
license fees from users on behalf of its member companies who hold
rights to the cassettes, compact discs and such other media of SOUND
RECORDING which are played and performed in public.
10. The Plaintiff Society and PPL, though both registered under
Section 33 as Copyright Societies, are infact registered for and in two
different categories, viz., literary & musical works and sound
recordings.
11. As per plaintiff, one of the principal objectives therefore of
a Collecting Society like the Plaintiff Society is to act for all Lyric
Writers and Music Composers, collectively. Not only is the Plaintiff
Society a body with a statutory legitimacy, but is also indeed a practical
and indispensable mechanism for collecting royalties from various users
of the copyright works of its members and then disbursing those
royalties to such members. The royalties so collected, after deduction
of administrative expenses upto a maximum of 15%, as prescribed
under Rule 14H of the Copyright Rules, 1958, is thereafter distributed
amongst the Plaintiff Society's members and its foreign affiliates in
proportion to the actual use of the works of such members.
12. Tariffs are fixed by the Members of the Plaintiff Society in
their Annual General Meetings. The guiding principle in fixing the
Tariff Rate is the importance or value addition of music to the user
organizations. Tariff Rates applicable to establishments differ on the
basis of their size, stature and revenues earned. Fixation of Tariffs
is based on the principle that there are three types of establishments,
namely:
• Those for whom Music is an absolute Necessity such as
Channel-V on television or live music concerts whose entire
business is founded on playing music. Obviously, the Tariffs in
this category of cases are the highest; and
• Organizations for whom Music adds to the Comfort. Thus,
shops, departmental stores, showrooms, emporiums, hotels and
restaurants that provide music as an added facility to their
services fall in this category. It is pertinent to note that music is
not a sine qua non for the survival of establishments in this
category. The tariff for these organizations is relatively lower to
the first category; and
• Organizations that can easily do without music, for example,
petrol stations where the tariff would be the lowest.
13. The Plaintiff Society makes the obtaining of permission in
the following manner :
. First, there is no need to locate the owners. The Plaintiff
Society has a collection of over 10 million Indian and Foreign
Works, which comprise almost 95% of all music in the world
on an individual basis. Thus, there is no need to contact,
negotiate with or obtain permissions from any of these
millions of right holders in the world.
. Second, by paying an annual fee to the Plaintiff Society, an
establishment obtains automatic permission to play music
from the vast collection of millions of songs, both Indian and
Foreign. The permission is automatic and immediate and no
time and cost is lost in either traveling or in any other form of
negotiations with the right holders.
. Third, irrespective of the status of the Songwriters or Music
Composers, there is a flat or uniform rate charged. This can
be particularly important since if one were to individually
negotiate with the artiste, then it may well be that some desire
prohibitive prices for the use of their work.
. Fourth, the emphasis of the whole system is to provide a
single window clearance through which a user gets quick,
automatic permission without any cost of travel or
negotiation, for all works.
THE CASE OF THE DEFENDANTS:
14. The defendant No.1 is the Manager of Defendant no.2,
Sphinx Bar & Restaurant at Tara Singh Compound, Near Dahisar
Checknaka, Penkarpada Road, Thane -401104.
15. It is stated that the Defendants have avoided
obtaining a license to communicate to the public works belonging to
Plaintiff's repertoire. The Defendants have been put on adequate notice
of the Plaintiff's rights but to no avail. The details of the
correspondence between the Plaintiff and the Defendants are detailed
below:
i) The Plaintiff sent a notice dated February 07, 2006 to
Defendants making them aware of the prevailing law and
unequivocal rights of the Plaintiff. An invoice no. 2005-
2006_5844 dated 4th February 2006 was sent along with the said
notice calling upon the Defendant no. 2 to furnish license fee of
Rs. 28,000/- for period 1st December 2005 to 30th November
2006. The aforesaid letter along with invoice is being filed in the
present proceedings.
ii) Thereafter, the Plaintiff sent another notice dated 14th October
2006 apprising the Defendant's of Plaintiff's rights and the
governing law. The aforesaid notice was followed by an invoice
no. 2006-2007_4275 dated November 17, 2006 calling upon
Defendant no. 2 to pay the license fees for the amount of Rs.
67,200.00/- for the period 1st December 2006 to 30th November
2007 including arrears for the period 1st December 2005 to 30th
November 2006. The aforesaid letter and invoice are being filed
in the present proceedings.
16. The Defendants' intention has been to avoid obtaining the
license from the Plaintiff for Public Performance of Musical works in
their premises and they continued their activities despite of issuance of
notice and being made aware of the prevailing law.
17. As per the case of the plaintiff, the defendants' acts have
not only caused at the very least a loss of Rs. 67,200/- to the owners of
the copyright in works which were performed at the premises of the
defendants on the date of filing of the suit.
18. An affidavit of the investigator alongwith an audio recording
is filed in the present proceedings. The Plaintiff has identified the
following songs played in the plaintiff‟s repertoire. The list of songs
is as follows :
Songs played in Hotel Sphinx Bar & Restaurant, Mumbai reported by the
Investigator
Sr.No. Song Title Film Name Composer Author Publisher
Yaar Bina Chain Laljee Pandey Music India
I Kahan Re Saaheb Bappi Lahiri (Anjaan) Ltd.
Laxmikant Kudalkar
2 Is del se Parasmani Pyarelal Sharma Asad Bhopali Gramophone
Zindaqi kin a Laxmikant Kudalkar Santosh
3 toote Kranti Pyarelal Sharma Anand Gramophone
Sahara One
Entertainme
4 O Sikander Corporate Shameer Tandon Sandeep Nath nt
Tere bin nahin Kachche Nusrat Fateh Ali Tips
5 lagda Dhaage Khan Anand Bakshi Industries
19. The Defendants are publicly performing as well as
communicating to the public, the literary and musical works, sound
recordings and audiovisual songs embodying the literary and musical
works belonging to the repertoire of the plaintiff without having
obtained a license from the plaintiff to do so.
20. The plaintiff states that the defendants' acts of
infringement clearly constitute a gross infringement not to mention
the resultant damages being vested on the Plaintiff and it amounts to
blatant and willful infringement of copyright.
JUDICIAL RECOGNITION OF THF PLAINTIFFS RIGHTS:
21. The Plaintiff has taken steps to protect its proprietary and
common law rights in earlier actions before this Court, as set out in the
following chart: -
TITLE SUITNO. JUDGE ORDER PASSED
The Indian Performing Right 2010 of 1999 Hon'ble Justice Suit decreed in terms of
Society Ltd. v. Mr. S. L. Kumar Manmohan Sarin compromise on 13/01/2000.
& Anr. Compromise included
• Acknowledgment by
Defendant of Plaintiff's
public performance rights
• Undertaking not to
infringe in future
• Defendant obtained a
formal license from the
Plaintiff by paying
royalties
The Indian Performing Right 720 of 2000 Hon'ble Justice Ex parte ad interim interim
Society Ltd. v. Mr. 1. S. Kohli Vikramajit Sen injunction granted on
& Ors. 27/04/2000.
The Indian Performing Right 721 of 2000 Hon'ble Justice Ex parte ad interim interim
Society Ltd. v. Mr. Kabir Vikramajit Sen injunction granted on
Advani & Ors. 27/04/2000 and suit decreed
in terms of compromise
application on 17/8/2000
The Indian Performing Right 1000 of 2000 Hon'ble Justice Ad interim ex parte
Society Ltd. v. Mr. Ashok Vikramajit Sen injunction granted and
Kinra & Ors. thereafter decreed in terms of
compromise application on
17/8/2000
The Indian Performing Right 1001 of 2000 Hon'ble Justice Ex parte ad interim
Society Ltd. v. Mr. Rajesh Vikramajit Sen injunction granted on
Karula & Ors. 22/05/2000.
The Indian Performing 2554 of 2001 Hon'ble Justice Ex parte ad interim
Right Society Ltd. v. Mr. J.D. Kapoor injunction granted on
Jairam Mani & Ors. 12/12/2001.
The Indian Performing 448/2002 Hon'ble. Justice Injunction granted after
Right Society Ltd. v. Dr. M.K. arguments on 6 March
International Sharma 2002.
Amusements Limited and
Anr.
The Indian Performing Right 129/2002 Hon'ble Justice D.K. Ex parte ad interim
Society Ltd. v. Nanu Resorts Jain injunction on 12.1.2002
and Anr. under terms of which
Defendant given one week to
clear outstanding dues failing
which the injunction was to
come into force.
The Indian Performing Right 1050/2002 Hon'ble Justice Ex parte ad interim
Society Ltd. v. Gaurav Jain and Sharda Agarwal injunction granted on 31st
Ors. May 2002
The Indian Performing Right 1077/2002 Hon'ble Justice Ex parte ad interim
Society Ltd. v. Mr. Gauram Dalveer injunction granted on 14th
Radia and Ors. Bhandari June 2002
Injunction granted in light of
clear delineation of rights of
PPL from IPRS
The Indian Performing Right 1341/2002 Hon'ble Mr. Suit decreed in favour of the
Society Ltd. v. Alcon Victor Justice Vikramajit IPRS on 8th January 2003
Group of Hotels Sen
The Indian Performing Right 79 of 2003 Hon'ble Mr. Ex parte ad interim
Society Ltd. v. Kamat Inns Pvt. Justice Manmohan injunction granted on 14th
Ltd. and Ors. Sareen January 2003.
The Indian Performing Right 1861/2003 Hon'ble Mr. Ex parte ad interim
Society Ltd. v. Mr. Vinod JusticeMr. C.K injunction granted on 6th
Gulati & Ors. Mahajan November 6th 2003
The Indian Performing Right 1440/2003 Hon'ble Mr. Ex parte ad interim
Society Ltd.v. Gujarat JHM JusticeMr. injunction granted on July
hotels Ltd. and Anr. Manmohan Sarin 23rd 2003
Permanent Injunction granted
and matter decreed in terms of
compromise application
The Indian Performing Right 1775/2003 Hon'ble Mr. Justice Ex parte ad interim
Society Ltd. V. Akash Kalra & Mr. R.C Chopra injunction granted on 26th
Anr. September 2003
The Indian 1074/2003 Hon'ble Mr. Ex parte ad interim
The Plaintiff has relied upon certain facts and documents
which are enumerated in the following paras :
21. The plaintiff Society, a company limited by guarantee under
the Companies Act (Memorandum and Articles of Association Ex
PW1/2). It is non-profit body registered as a Copyright Society under
Section 33 of the Act (Registration certificate Ex PW1/3).
22. The Plaintiff‟s repertoire is easily identified by the public.
Any work of any of the Plaintiff‟s members is necessarily in the
Plaintiff‟s repertoire, since the Plaintiff obtains a complete
assignment of performing rights in respect of all existing and future
works. The list of the Plaintiff‟s members is publicly available on
the Plaintiff‟s website http://www.iprs.org. The Plaintiff‟s tariff is
transparently available to the public at the Plaintiff‟s website
http://www.iprs/tariff.org. The details of plaintiff‟s membership is
given as Ex. PW-1/4.
23. Defendant No.2 is Sphinx Bar and Restaurant located at
Tara Singh Compound, Near Dahisar Checknaka, Penkarpada Road,
Thane; Defendant No.1 is the Manager of Defendant No.2. Plaintiff
has put the Defendants on notice for the necessity to obtain the
Plaintiff‟s license since 2005 (Ex. PW 1/12). Plaintiff sent the
Defendants another notice dated 14th October 2006 and thereafter an
invoice for the period 1st December 2006 to 30th November 2007 (Ex
PW1/13 and Ex PW1/14 respectively). The total licence fee owed by
the Defendants till date is :
Sr Party Name Area Period Bill Amt Int + Penalty Vat Total Bal
No.
1. Sphinx Bar Mira 01 Dec, 1,78,500.00 2,50,596.16 6,335.00 4,35,431.16
& Road 2005 To
Restaurant 30 Nov,
24. On 01.11.2007 Mr. Hiraman P Shivekar made a sample
recording and noted the songs being played within the Defendants
premises and found that the Defendants continued to communicated to
the public the literary and/or musical works of the members and /or
their heirs of the Plaintiff Society. Recording of the songs along with a
list of the songs, belonging to the Plaintiff‟s repertoire as identified by
the Plaintiff‟s employees who stayed at the hotel is filed in the present
proceedings. Each of the above said Defendant is liable under Section
51 (a) (i) read with section 14(a) (iii) of the Act, for infringement of the
Plaintiff‟s copyright. Defendant No.2 is liable for infringement of
Plaintiff‟s copyright under Section 51(a) (ii), read with Section 14(a)
(iii) of the Act.
25. The Plaintiff monitors, protects and enforces the rights,
interest and privileges of its members comprising of authors, composers
and publishers of literary and musical works. The Plaintiff is the
exclusive copyright owner of the performing rights in respect of the
entire repertoire of literary and musical works under Section14
(a)(iii) of the Act. Administration of rights : The Plaintiff administers
the said rights as per section 34 of the Act. Assignment of Rights:
Under Section14 (a)(iii) of the Act, the rights assigned to and
administered by the Plaintiff, commonly known as "performing rights",
are the rights referred to in section 14(a)(iii) of the Act, being: (1)The
right of performing the work in public; (2) The right to communicate
the work to the public by making it available for being seen or heard or
otherwise enjoyed by the public directly or any means of display or
diffusion regardless of whether any member of the public actually sees,
hears or otherwise enjoys the work so made available; and (3) The right
to authorize any of these acts.
26. The evidence produced by the plaintiff has gone unrebutted.
The witnesses of the plaintiff were cross examined by the defendant.
Thus, the evidence of plaintiff is to be taken as correct as the
plaintiff has been able to establish its case as per plaint. Thus, the
plaintiff is entitled for the decree claimed for.
27. Defendants Nos. 1 and 2 are restrained from infringing the
Plaintiff‟s copyright by communicating to the public the Plaintiff‟s
repertoire comprising of works of all its members, which it is
authorized to administer in India, without obtaining a license from the
Plaintiff or doing any other act infringing the Plaintiff‟s copyrights.
28. The plaintiff is also entitled for costs and punitive damages
to the tune of Rs.1 lac.
MANMOHAN SINGH, J.
NOVEMBER 08, 2011
