Super Cassettes Industries ... vs Rajasthan Infotech Media Pvt. ...
2017 Latest Caselaw 7012 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CS(COMM) 554/2016

      SUPER CASSETTES INDUSTRIES PRIVATE LIMITED
                                              ..... Plaintiff
                   Through: Mr. K.K. Khetan, Advocate

                         versus

      RAJASTHAN INFOTECH MEDIA PVT. LTD.
                                                         ..... Defendant
                         Through        None

%                                 Date of Decision: 6th December, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                         JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for permanent injunction restraining infringement of copyright, rendition of accounts, delivery up, damages etc. The prayers made in the plaint are reproduced hereinbelow:-

"(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 of amount so found due to be passed in favour of the Plaintiff;

(iii) An order of delivery up to the Plaintiff or its authorized representative by the Defendant, 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 requiring the Defendants their officers, servants, agents, partners and representatives and all others acting for and on their behalf, to pay the Plaintiff damages to the tune of Rs. 20,01,600/- towards past damages and further grant future damages along with pendent lite and future interest @ 18% p.a. till the time of decretal amount is paid;

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

2. On 1st October, 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 and perused the plaint as well as the documents annexed herewith which, prima facie, show that defendants are engaged in broadcasting/communicating to the public the cinematographic clips of films, recordings, literary and

musical works of the plaintiff. In case ex-parte ad interim injunction is not granted, the plaintiff shall suffer loss and injury, inasmuch as balance of convenience is also in its favour.

Accordingly, till further orders, defendants are restrained from broadcasting, distributing and communicating to the public the cinematographic films, clippings, sound recordings and all related works including the musical works of the plaintiff."

3. Since defendant did not enter appearance despite service, it was proceeded ex parte vide order dated 6th July, 2017 and the ex parte interim injunction was confirmed till disposal of the suit.

4. 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".

5. 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.

6. Mr. K.K. Khetan, learned counsel for the plaintiff states that the defendant, Rajasthan Infotech Media Pvt. Ltd. is a ground cable operator based in Bikaner, Rajasthan and is providing Cable Television services under the logos "BIKANER MUSIC" and "BIKANER SANSKRITI" to various subscribers having operations throughout India including State of Rajasthan.

7. He states that in March, 2015 in the course of random

monitoring of the defendant‟s broadcasts, 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 contacted the defendant and sent a legal notice dated 17th August, 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.

8. The plaintiff has filed its evidence by way of two affidavits. One affidavit of PW-1 Mr. S.K. Dutta and another of PW-2 Mr. Rajnikant Sharma.

9. PW-1 has relied upon various decisions regarding the plaintiff‟s copyright works as Ex. PW-1/3. PW-1 has further proved the copies of assignment deeds, license agreements and copyright certificates illustrating that the plaintiff is the exclusive copyright owner of the aforementioned copyrighted works as Ex.PW 1/6A - Ex.PW 1/6I. The legal notice dated 17th August, 2015 has been proved as Ex. PW-1/4 (colly). The plaintiff‟ rate card on its website is proved as Ex. PW 1/5.

10. PW-1 in his supplementary affidavit dated 31st October, 2017 has stated that "It is known that the Defendant in the present suit has thousands of connection and I have asked the investigator Mr. Rajnikant Sharma to find out the actual number of connections. I have been informed that the defendant has 15,000 subscriptions. Since the Defendant chose not to reply to the cease and desist notice, and also

not disputed the number of connection, which were mentioned as thousands of connection. Hence, an adverse inference regarding the admission of the contents by the Defendant should be drawn as the same have gone unrebutted and uncontroverted by the Defendant... 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 six (6) months to the Plaintiff would amount as :- 15,000 (Subscription) x 18 (Per month license fee) x 6 (No of months) = INR 16,20,000/-"

11. PW-2 has proved the CD/DVD recordings of the infringing broadcasts made on 16th and 17th March, 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 infringement and reading along with the screenshots of the CD recordings as Ex. PW 2/1 and Ex. PW 2/2 (colly). Further, screenshots have been exhibited as Ex. PW 2/3 (colly).

12. Having heard learned counsel for the plaintiff and having perused the ex parte 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.

13. A bare perusal of the screenshot of the infringing recording (Ex. PW 2/3) shows the logo of the plaintiff, i.e., "T-SERIES". This proves that the defendant was aware that the audio visual work broadcasted on their network belonged to the plaintiff. A perusal of the cue sheet also 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 „Banja Besharam‟ from the film „Besharam‟, the songs „Aaj Blue hai Paani Paani‟ & „Barish‟ from the film „Yaariyaan‟, the song „Teri Galliyaan‟ from the film „Ek Villain‟ the songs „Ye Fugli Fugli Kya Hai‟ from the film „Fugli‟, the song „Yaar Naa Miley‟ from the film „Kick‟, the song „Ambarsariyaa‟ from the film „Fukrey‟, the song „Pappi Song‟ from the film „Heropanti‟, and the song „Yaar Tera Superstar‟ from the album „Desi Kalakaar‟.

14. Since the plaintiff‟s evidence has gone unrebutted, the 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.

15. 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 with Section 51 of the Copyright Act, 1957.

16. As the plaintiff in his evidence has stated that the defendant had 15,000 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.16,20,000/- (15,000 subscriptions x 6 months x Rs.18/-).

17. Resultantly, present suit is decreed in accordance with prayer (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.16,20,000/-. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J DECEMBER 06, 2017 KA