Delhi High Court
The Indian Performing Right ... vs Ad Venture Communication India ... on 25 September, 2012
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 14.09.2012
Judgment pronounced on: 25.09.2012
+ CS(OS) 2132/2010 & IA 14025/2010 (O. 39 R. 1&2 CPC)
THE INDIAN PERFORMING RIGHT SOCIETY ..... Plaintiff
Through: Mr. Pravin Anand, Advocate
versus
AD VENTURE COMMUNICATION INDIA
PRIVATE LIMITED ..... Defendant
Through: None
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
V.K. JAIN, J.
1. The plaintiff before this Court is a society of authors, composers and
publishers of various literary and musical works and claims to be administering
public performance/ communication to public rights in terms of Section 14(a)(iii)
of the Copyright Act, 1957,which vest in its members and 200 other sister
societies. The societies of authors and composers affiliated with the plaintiff form
part of an International Federation called CISAC (Confederation Internationale des
Societes des Auteurs et Compositeurs). By virtue of reciprocal contracts with other
societies such as BMI, ASCAP, PRS etc plaintiff also claims to be vested with
public performance rights of international music. It is also alleged that the authors,
composers and publishers, who are members of the plaintiff, have assigned their
public performance rights in respect of their respective literary and/or musical
works including future works to the plaintiff. The musical publishers who are
members of the plaintiff are either the first owners of the copyright as employers
under Section 17(c) of the Copyright Act or they have obtained ownership of
copyright by virtue of assignment in their favour. Even de hors various assignments
in its favour, the plaintiff claims to be entitled to sue as a Copyright Society, on
behalf of its members.
2. The defendant is stated to be carrying on business of organizing live events
in various cities in which the music is routinely communicated to the public as a
background score, filler or otherwise. The defendant is also alleged to be involved
in commercial activities such as organizing live performances, songs and providing
DJs under whose supervision the music is performed at functions/ events such as
monthly parties, singing reality shows auditions, DJ night at clubs etc. It is alleged
that the defendant organized a live musical event (Raghav Live in Concert) on
28.08.2010 wherein literary/ musical work of the plaintiff society were
communicated to the public without obtaining the requisite license. It is alleged
that the defendant got performed musical/ literary works belonging to the members
of the plaintiff and its sister societies in the above referred live concert. It is also
the case of the plaintiff that Phonographic Performance Limited (PPL), which is
also a copyright society is entitled to collect license fees from the users of the song
recordings, but the live performance of musical/ literary work does not involve PPL
and a person singing a song recording for the purpose of public performance must
take license from the plaintiff for public performance of the musical work and
license from PPL for playing song recording.
A table containing the list of songs alleged to have been performed by the
artist Raghav on 28.08.2010 at St. Joseph Ground, M.G. Road, Bangalore, along
with details such as the name of the composers, publishers and authors is given
below:
S.NO. TITLE COMPOSER AUTHOR ARTISTE PUBLISHER
1. ANGEL COWARD COWARD FAIRWOOD
EYES RICARDO RICARDO MUSIC LTD.
DUNBAR SLY DUNBAR SLY UNIVERSAL
LOWELL LOWELL MUSIC
PUBLISHING
LIMITED(GB)
EVERTON EVERTON UNIVERSAL
BONNER BONNER MUSIC
PUBLISHING
LIMITED(GB)
JOHN JOHN WESTBURY
CHRISTOPHE CHRISTOPHE MUSIC LTD.
TAYLOR TAYLOR
R. TAYLOR R.TAYLOR
LLOYD OLIVER LLOYD OLIVER
WILLIS WILLIS
MATHUR MATHUR
RAGHAV RAGHAV
2. CAN T GET DUANE MATHUR RAGHAV SAREGAM A
ENOUGH MICHAEL DYER RAVHAV INDIA LTD.
ONKAR PRASAD MAJROOH
NAYYAR SULTANPURI
MATHUR
RAGHAV
MAJROOH
SULTANPURI
3. LET S JAHAZIEL JAHAZIEL RAGHAV FAMOUS
WORK IT MICAH BEN MICAH BEN FEAT MUSIC
OUT ELLIOT ELLIOT JAHAZIEL PUBLISHING
LIMITED
MATHUR MATHUR
RAGHAV RAGHAV
MUSTAQUDDIN MUSTAQUDDIN
SAREGAMA SAREGAMA
4. SO COWARD COWARD 2 PLAY CASABLANCA
CONFUSED RICARDO RICARDO FEAT MEDIA
RAGHAV PUBLISHING IN
DONALD DONALD
ANTONY ANTONY
CAMPBELL CAMPBELL
MATHUR MATHUR
RAGHAV RAGHAV
5. BAD BAD MATHUR MATHUR BMG ENSIGN
BAD RAGHAV RAGHAV MUSIC
MUSTAQ UDDIN MUSTAQUDDIN
SAREGAMA SAREGAMA
6. NO NO MATHUR MATHUR RAGHAV
RAGHAV RAGHAV
MATHUR NINA MATHUR NINA
UDDIN UDDIN MUSTAQ
MUSHTAQ
7. SO COWARD COWARDO 2 PLAY CASABLANCA
CONFUSED RICARDO FEAT MEDIA
RAGHAV PUBLISHING IN
DONALD DONALD
ANTONY ANTONY
CAMPBELL CAMPBELL
MATHUR MATHUR
RAGHAV RAGHAV
The case of the plaintiff is that defendant infringed its copyright by
communicating the above referred works to the public. The plaintiff has
accordingly sought an injunction restraining the defendant from organizing the
events including communicating plaintiff‟s repertoire of musical works
administered to the public without obtaining license from it or doing any other act
infringing its copyright. The plaintiff has also sought rendition of account and
damages.
3. The defendant was proceeded ex parte vide order dated 31.05.2011. Ex parte
evidence of the plaintiff has been recorded on affidavits.
4. Section 33 of the Copyright Act, 1957 empowers the Central Government to
register an association of persons fulfilling the prescribed conditions to do business
of issuing or granting licenses in respect of any work for which the Copyright
subsists or in respect of any other right conferred by the Act, in accordance with
the registration granted to such an association. Ordinarily, the Central Government
is to register only one copyright society to do business in respect of the same class
of work. Section 34 of the Act provides that a copyright society may accept from
an owner of rights, exclusive authorization to administer any right in any work by
issue of licenses or collection of license fees or both. It is also permissible for a
copyright society to enter into an agreement with a foreign society or organization
administering rights corresponding to the rights under the Act and to entrust to such
foreign society or organization, the administration in any foreign country, of rights
administered by the said copyright society in India, or for administering in India
the rights administered in a foreign country by such foreign society or organization.
A copyright society can issue license under Section 30 of the Act, collect fees and
distribute such fee among the owners of right after deducting its own expenses.
5. Ex.PW1/4 is the certificate of registration granted to the plaintiff under
Section 33(3) of Copyright Act, 1957, whereby it was permitted to commence and
carry on the copyright business in musical works and any words or any action
intended to be sung, spoken or performed with the music. In its affidavit by way of
evidence Mr. Hassan Kamal, Chairman of the plaintiff society has stated that the
plaintiff administers relevant rights in India on behalf of the members of about 200
sister societies from different countries. Ex.PW1/5 is the list of such sister
societies. Ex.PW1/6, PW1/7, PW1/8 are the agreements of the plaintiff with three
such societies namely BMI, PRS and ASCAP respectively.
The list of members of the plaintiff society is Ex.PW1/9 and they are stated
to be authors, composers and publishers of Indian literary and musical works. The
tariff fixed by the plaintiff society is Ex.PW1/11.
6. Ex.PW1/13 (Colly) is the printout from the website of the defendant namely
http://adventurehouse.co.in. which shows that the defendant is engaged in the
business of organizing events and promotions and the services offered by the
defendant including club gigs, concert, college fests and off sites.
Ex.PW1/14 (Colly) is the printout from the internet which shows that
defendant proposed to organize „Raghav Mathur Live Concert‟ at St. Joseph‟s
Grounds in Bengaluru on August 28, 2010. The tickets of the show were priced at
Rs.500/- and Rs.800/-.
7. A song comprises three elements lyrics, music and singing. As observed by
a Division Bench of this Court in Indian Performing Rights Society Ltd vs. Aditya
Pandey & Ors., FAO Nos. 423-424-425/2011, decided on 08.05.2012 when a song
is recorded there is homogenization of the lyrics with the musical score; where
integration is articulated through the multi-level hierarchical system of inter-
dependence. The question which came up for consideration before the Division
Bench in the aforesaid case was as to whether communication to the public,
including by way of broadcasting of a song recording also amounts to a
communication to the public for literary and musical works embodied in the sound
recording and if so whether a separate licence in respect of such literary and
musical work can be asserted by the owner of copyright in such works, in addition
to the licence secured from the copyright holder in the sound recording. The
learned Single Judge from whose order the aforesaid appeal arose was of the view
that once a licence is obtained from the owner or someone authorized to give it, in
respect of a sound recording, for communication to the public, including by
broadcasting, a separate authorization of licence is not necessary from the
copyright owner or author of the musical work and/or literary work. The contention
of the appellant IPRS, however, was that in addition to licence from the copyright
holder in the sound recording a separate licence from the authors of the literary and
musical works comprised in the song was also required. Noticing that the owner of
a copyright in a literary and musical work enjoys the right to communicate the said
work to the public by way of live performance, whereas the owner of copyright and
sound recording does not enjoy similar right to communicate the sound recording
to the public by way of live performance, the Division Bench was of the view that
communication of a sound recording to the public by the owner of the recording
does not encroach upon the right of the owner of the underlying literary and
musical works to perform the said underlying works in the public. In nutshell, the
view taken by the Division Bench in this case is that no permission from a lyricist
and music composer is required if licence is obtained from the copyright owner of
the sound recording. It was further held by the Division Bench that copyright
holder of sound recording does not have copyrights in live performance. As a
necessary coronary, a separate licence from the lyricist and musical composer as
the case may be is required in case of live performance.
8. The affidavits filed by Mr Hassan Kamal of the plaintiff-company show that
the songs which were sung live by Mr Raghav to a live audience on 28.08.2010,
included the works titled Angel Eyes, Can‟t Get Enough, Let‟s Work it Out, So
Confused, Bad Bad Bad and No No. The Inlay Card Ex.PW-1/22 would show that
the song Angel Eye is authored by four persons, namely, Dunbar Sly Lowell ,
Everton Bonner , Lloyd Oliver Willis, John Christopher Taylor and has music
scores from Dunbar Sly Lowell, Everton Bonner , Lloyd Oliver Willis, John
Christopher Taylor. The Inlay Card further shows that the song Can‟t Get Enough
was written by and has music by three persons, namely Duane Michael Dyer,
Onkar Prasad Nayyar and Majrooh Sultanpuri. Ex.PW-1/23 is the Assignment
Deed, whereby Dunbar Sly assigned his rights in the song and the music to a
society called Performing Right Society (PRS). Everton Bonner, Lloyd Oliver
Willis also assigned their respective rights in the song and the music to the same
society vide Assignment Deeds Ex.PW-1/24 and PW-1/25 respectively. Duane
Michael Dyer and Onkar Prasad Nayyar assigned their rights in the song and the
music of the song Can‟t Get Enough to PRS and another society, IPRS vide
Assignment Deeds Ex.PW-1/27 and Ex.PW-1/10 respectively. Majrooh Sultanpuri
assigned his rights to the society-IPRS vide Assignment Deed Ex.PW-1/10 (Colly).
9. A perusal of Assignment Deed Ex.PW-1/23 executed by Lowell Dunbar in
favour of PRS would show that the assigner assigned to PRS, all the performing
rights and the film synchronization right to the extent prescribed in Article 7 (c)
(iii) of the Articles of Association of the society. It further shows that the
expression "musical work" used in the Assignment Deed means any musical work
whether existing at that time or to be composed thereafter and such words if any as
are associated with any musical work. The society was assigned all the rights
mentioned in the deed in the musical work which belonged to the assignor as also
the work which were to be thereafter acquired by or were to become vested in the
assignor during continuance of his membership of the society. Similar is the
Assignment Deeds Ex.PW-1/24 executed by Everton Bonner and deed Ex.PW-1/25
by Lloyd Oliver Willis in favour of PRS.
10. A perusal of Ex.PW-1/27 which is the agreement between Duane Michael
Dyer and PRS would show that Mr. Dyer has granted to PRS the right to licence
non-remedic public performances of each musical work of which he is a copyright
proprietor or which he either alone or jointly or in collaboration with others wrote,
composed, published, acquired or owned or in which he had any right, title, interest
or control or which thereafter was to be written, composed, acquired, owned,
published or copyrighted by him alone, jointly or in collaboration with others or in
which thereafter he was to have any right or interest or control in whole or in part.
A perusal of the agreement between Onkar Prasad Nayar and IPRS would
show that Mr Nayar assigned to IPRS, all musical works and all performing rights
and mechanical rights which belonged to him or which were to be thereafter
acquired by or become vested in him. The expression "performing right" has been
defined in the agreement to mean and include the right of performing in public,
broadcasting and causing to be transmitted to subscribers to a diffusion service, in
all parts of the world, by any means or in any manner, all musical works and the
right of authorizing any of the said acts. Identical is the agreement Ex.PW-1/10
(Colly) between IPRS and Majrooh Sultanpuri.
11. Affidavit of Mr K.M. Nanjundaswamy shows that the live music concert
titled "RAGHAV LIVE IN CONCERT" held at St. Joseph Ground on 28.08.2010
was attended by him. He made recording of the performance using NOKIA
Express Music-5130c and saved the same to the hard disk of his personal computer
which belongs to the plaintiff society and thereafter transferred the said recording
Shri Hassan Kamal and is Ex.PW-1/21. The plaintiff-society has thus been able to
establish that live performance of various works, including Angel Eye and Can‟t
Get Enough were undertaken by Mr Raghav at Bangalore on 28.08.2010. Being a
live performance of the aforesaid works, permission from the author and composer
was necessarily required before undertaking any such performance. Since the
rights which the author and composer of the songs "Angel Eyes and Can‟t Get
Enough" had in these works been assigned by them to PRS/IPRS, the requisite
permission/licence in this regard could have been granted only by the above-
referred societies. Ex.PW-1/8 is the agreement, between PRS and the plaintiff-
society.
12. A perusal of clause 1.1 would show that subject to exceptions and
reservations set out in clauses 2 and 2A and to the provisions of clauses 8 and 8A,
PRS and IPRS each granted to the other non-exclusive licence and authority to
exercise and enforce the performing rights in the repertoire within the territory in
accordance with the provisions of the agreement. The rights, so granted, to each
other include the right to grant licence in respect of other‟s performing rights to
persons requiring such licences. These rights include the right to collect royalties
from licencees in consideration of the grants of such licences and to institute and
prosecute proceedings against persons infringing the performing rights and to
collect damages or compensation for the unauthorized doing of any part of the
performing right. The rights granted to the plaintiff-society expressly include a
right to bring an action in accordance with chapter XII and XIII of Copyright Act,
1957 for infringement of PRS‟s copyright in respect of doing or authorizing the
doing of any act restricted by the performing rights in the repertoire for which
IPRS has granted licence to PRS under the agreement. This power expressly
includes the power to institute legal proceedings, sign and verify pleadings and
appoint legal counsels before the Indian Courts. The exceptions and reservations
mentioned in Clause 2 and 2A are not relevant for the purpose of this suit and,
therefore, need not be discussed. The copyright of Dunbar Sly, Everton Bonner,
Oliver Willis in the song Angel Eyes and the rights of Duane Michael Dyer in the
song Can‟t Get Enough stood transferred to PRS and by virtue of the agreement
between PRS and IPRS, the plaintiff has the legal right to grant licence for live
performance, involving the aforesaid works. Therefore, the defendant infringed the
copyright which the plaintiff holds and is entitled to enforce in respect of the work
Angel Eyes and Can‟t Get Enough. As regards the rights of Onkar Prasad Nayar in
the song Can‟t Get Enough, the same stands assigned directly to the plaintiff-
society vide Assignment Deeds Ex.PW-1/10 (Colly) and the plaintiff-society,
therefore, is competent to grant licence in respect of live performance of the
aforesaid work and is also competent to execute legal proceedings in case of
infringement of the aforesaid work by the defendant.
13. For the reasons stated hereinabove, the plaintiff is entitled to an injunction,
restraining the defendant from organizing events, involving live performance in
respect of the lyrics(s), musical score(s) copyright in which are held by the
plaintiff-company. It shall be obligatory for the defendant to ensure that no
copyright of the plaintiff-company is infringed in any event organized by it by way
of live performance.
14. Coming to damages, I find that no specific amount by way of damages has
been claimed by the plaintiff though it has sought rendition of accounts in respect
of profits unlawfully earned by the defendant by infringing plaintiff‟s repertoire. A
specific prayer has also been made for award of damages to the plaintiff-company,
though without specifying the amount sought by way of damages. In my view,
considering the prayer made in the suit, punitive damages can be awarded to the
plaintiff, subject to, of course, payment of requisite Court fee, despite no specific
amount having been claimed by way of damages.
The question of granting damages in such cases came to be considered by
me in Autodesk, Inc. & Another v. Mr. Prashant Deshmukh & Others: 183(2011)
DLT 411 and the following view was taken:
"Regarding punitive damages in the case of Time
Incorporated v. Lokesh Srivastava & Anr., 2005 (30)
PTC 3 (Del), this Court observed that punitive damages
are founded on the philosophy of corrective justice and as
such, in appropriate cases these must be awarded to give
a signal to the wrong doers that the law does not take a
breach merely as a matter between rival parties but feels
concerned about those also who are not party to the lis
but suffer on account of the breach. In the case of Hero
Honda Motors Ltd. v. Shree Assuramji Scooters, 2006
(32) PTC 117 (Del), this Court noticing that the
defendant had chosen to stay away from the proceedings
of the Court felt that in such case punitive damages need
to be awarded, since otherwise the defendant, who
appears in the Court and submits its account books would
be liable for damages whereas a party which chooses to
stay away from the Court proceedings would escape the
liability on account of the failure of the availability of
account books.
In Microsoft Corporation v. Deepak Raval MIPR 2007
(1) 72, this Court observed that in our country the Courts
are becoming sensitive to the growing menace of piracy
and have started granting punitive damages even in cases
where due to absence of defendant, the exact figures of
sale made by them under the infringing copyright and/or
trademark, exact damages are not available. The
justification given by the Court for award of compulsory
damages was to make up for the loss suffered by the
plaintiff and deter a wrong doer and like-minded from
indulging in such unlawful activities.
In Larsen and Toubro Limited v. Chagan Bhai Patel
MIPR 2009 (1) 194, this Court observed that it would be
encouraging the violators of intellectual property, if the
defendants notwithstanding having not contested the suit
are not burdened with punitive damages.
Also, the Court needs to take note of the fact that a lot of
energy and resources are spent in litigating against those
who infringe the trademark and copyright of others and
try to encash upon the goodwill and reputation of other
brands by passing of their goods and/or services as those
of that well known brand. If punitive damages are not
awarded in such cases, it would only encourage
unscrupulous persons who actuated by dishonest
intention, in the case of a trademark use the well-reputed
trademark of another person, so as to encash on the
goodwill and reputation which that mark enjoys in the
market, with impunity or in the case of a software use the
pirated software thereby depriving the copyright owner
of the revenue to which he is entitled by sale of licence to
use that software and then avoid payment of damages by
remaining absent from the Court, thereby depriving the
plaintiff an opportunity to establish actual profit earned
by him from use of the infringing mark/pirated software,
which, if he is using the infringing mark/pirated software
for business purposes, can be computed only on the basis
of his account books. This would, therefore, amount to
putting premium on dishonesty and give an unfair
advantage to an unscrupulous infringer over those who
have a bona fide defence to make and therefore come
forward to contest the suit and place their case before the
Court."
15. In the case before this Court, the defendant has sold ticket of the event in
which Raghav performed for Rs 500 each. Thus, they exploited the work in which
copyright is held by the plaintiff, for their commercial advantage and to the
detriment of the authors and composers of the works. As far as grant of damages is
concerned, the live performance in an event organized on a commercial basis by
selling tickets needs to be treated differently from the live performance say in a
family function. A soft view, while awarding damages against a person infringing
copyrights of the others to earn unlawful profits, by organizing live events, would
be wholly misplaced and uncalled for. If the damages awarded against such
persons are token in nature and do not pinch the infringer that would only
encourage the infringer to repeat such acts in future at the cost of some other
copyright holder.
16. For the reasons stated hereinabove, the defendant is restrained from
organizing any event involving live performance in respect of the lyrics(s), musical
score(s) copyright in which are held by the plaintiff-company. It shall be
obligatory for the defendant to ensure that no copyright of the plaintiff-company is
infringed in any event organized by it. The defendant is also directed to pay Rs 5
lakh by way of punitive damages to the plaintiff. If the damages are not paid
within four weeks, interest on the amount of damages would be payable at the rate
of 6% per annum from the date of decree till realization of the amount.
Decree sheet be drawn accordingly.
V.K.JAIN, J
SEPTEMBER 25, 2012
RD/BG
