Super Cassettes Industries Pvt ... vs Star Broadband Services India Pvt ...
2018 Latest Caselaw 6532 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of decision: 30.10.2018
+     CS(COMM) 30/2017
      SUPER CASSETTES INDUSTRIES PVT LTD ..... Plaintiff
                      Through Mr. K.K.Khetan, Adv
               versus
      STAR BROADBAND SERVICES INDIA PVT LTD..... Defendant
                      Through Mr. Uttam Datt, Adv

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. Present suit is filed seeking an order of permanent injunction to restrain the defendants etc. from engaging in themselves or from authorising the recording distributing, broadcasting, public performance/ communication to the public or in any other way exploiting the cinematography films, sound recordings, literary works and musical works or any other part thereof throughout India that is owned by the plaintiff including all works whereupon the plaintiff has shown its copyright under section 52A of the Copyright Act. An order for rendition of accounts is also sought. Other connected reliefs are also sought.

2. The case of the plaintiff is that plaintiff is the owner of copyright in various devotional songs. In addition, it has a large repertoire of copyright works comprising cinematographic films and sound recordings as well as musical and literary works. Plaintiff has over 20,000 Hindi film and non- film songs as well as more than 50,000 songs in regional languages to its credit. By virtue of being owner of the copyright in respect of the said songs

etc. the plaintiff has rights under section 14 of the Copyright Act, 1957. The public easily identifies the plaintiff's repertoire since all the CDs, DVDs, VCDs, prominently display the Logo of the plaintiff's label 'T Series'. In addition, in terms of requirements of Section 52-A of the Copyright Act, each DVD/VCD/CD produced by the plaintiff contains a notice bringing it to the attention of the public that the plaintiff has made the sound/video recording.

3. The defendant is carrying on the business of providing cable television services to various subscribers in Delhi, especially around Vasant Vihar. It is pleaded that as per information of the plaintiff the defendant is a large Ground Cable Network provider and has approximately 50,000 connections. It is further pleaded that defendant through its cable network operates local channels such as Video 1, Video 2 and Video 3. Defendant had earlier obtained a TPPL License for broadcasting works of the plaintiff for a period of three months from 1.1.2015 to 31.3.2015 for 536 connections. The license expired on 1.4.2015. However, the defendant has not taken steps for renewal of the license and continued to use and commercially exploit the various works of the plaintiff. Further, investigations by the plaintiff revealed that the defendant has about 50,000 connections and not 536 connections. Hence, the plaintiff wrote to the defendant on 1.11.2015 requiring the defendant to get renewed license for the actual number of connections. Defendant, however ignored the said communication. The plaintiff got recorded the infringing activities of the defendant on 31.8.2016, 2.9.2016, 3.9.2016 and 5.9.2016. A legal notice was sent to the defendant on 27.09.2016 to cease and desist. It is pleaded that the defendant continues to infringe the copyright of the plaintiff through its

cable network through local challans operated as Video 1,Video 2 and Video 3. Hence, the present suit.

4. On 16.5.2017 the right of the defendant to file written statement was forfeited. The matter was fixed before the Joint Registrar for recording of evidence. The plaintiff filed the evidence of PW-1 Mr.Anil Maini. and PW 2 Mr.Mohit Sharma who were also cross-examined by the counsel for defendant.

5. PW-1 Mr.Anil Maini states that he is working as a Consultant with the plaintiff company. It is pleaded in the affidavit that the plaintiff has a number of exclusive recording arrangements with some of India's well- known artists/singers. Plaintiff also has rights of literary, musical and other shows which it commissions and manages. by way of assignments. He has proved the copyright of the plaintiff. He has also pleaded that as per information available to the plaintiff the defendant has more than 50,000 connections. The averments in the plaint regarding the acts of the defendant are repeated. He has also pointed out that the plaintiff got recorded the infringing activities of defendant on 31.08.2016, 2.9.2016, 3.9.2016 and 5.9.2016. Recordings were carried out by Mr.Mohit Sharma at a shop at B Block, Tigri, Sangam Vihar, New Delhi where a TV was installed and the defendant was providing cable network. The recording was copied on a DVD and is placed on record alongwith the plaint. It is stated that the plaintiff is the copyright owner of the songs which have been played by the defendant without obtaining license from the plaintiff.

6. Similarly, Mr.Mohit Sharma PW-2 has stated that he had made DVD recordings of the broadcast containing the copyright works of the plaintiff's repertoire on the defendant's channel at a Shop at B Block, Tigri, Sangam

Vihar on 31.8.2016., 2.9.2016, 3.9.2016 and 5.9.2016 where a TV was installed and the defendant was providing cable network. The DVD containing the said recording of infringing broadcasts alongwith Cue Sheets indicating the date of recording songs/film/album belonging to plaintiff's repertoire, time of recording, duration etc. has been placed on record. The Cue Sheet which was filed with the suit has been marked as Ex.PW1/13.

7. I have heard learned counsel for the parties.

8. Learned counsel for the defendant has vehemently argued that they have never infringed the copyrights of the plaintiff after their license expired. It has also been pleaded that the claim of the plaintiff that the defendant has 50,000 connections is misplaced and not borne from the record. It is also pointed out that PW-2 in his cross-examination has accepted that in Sangam Vihar there is another cable operator who runs cable network by the name of 'Swami Cable Network'. He has also admitted that there is no date of recording mentioned in the Cue Sheet Ex.PW1/13. No time for recording is also mentioned. He has also stated that the allegation of the plaintiff that the defendant has 50,000 connections is not borne from the evidence. Plaintiff has failed to prove the same. Learned counsel for the defendant reiterates that the defendant has not violated the copyright of the plaintiff and does not intend to do so in future.

9. In my opinion, a perusal of the evidence of PW-2 makes it quite clear that he has recorded the violation of the copyrights of the repertoire of the plaintiff as is apparent from the recordings done on 31.8.2016, 2.9.2016, 3.9.2016 and 5.9.2016. The said Act of recording has not been seriously challenged in his cross-examination.

10. The next issue comes as to how many connections were fed by the

defendant by the said programmes which were infringing the copyright of the plaintiff. Plaintiff claims that the defendant has 50,000 subscribers in Delhi. Based on the same the plaintiff states that damages are calculated at Rs.1 crore taking into account the direct loss of license fee. The license fee per connection per household which the plaintiff charges from the cable operators and advertised on the website is Rs.18 per month plus taxes. Calculating the subscribers at 50,000, the plaintiff is entitled to damages @ Rs.9,00,000/- per month. This comes to Rs.1,08,00,000/- per year. There is no meaningful cross-examination of PW-1 on the said averments. However, in my opinion, the averments of the plaintiff that the defendant has 50,000 subscribers, is unsubstantiated with any documents or any evidence whatsoever. The onus was on the plaintiff to prove the number of subscribers. I, accordingly, keeping in view the nature of evidence on record assess the loss caused to the plaintiff at @ Rs.10,00,000/-.

11. Accordingly, a decree is passed in favour of the plaintiff and against the defendant in terms of para (i) of the plaint. A decree is also passed in favour of the plaintiff and against the defendant for a sum of Rs.10,00,000/-. The plaintiff shall also be entitled to interest @ 12% per annum from the date of decree till recovery. The plaintiff shall also be entitled to costs. Suit stands disposed of.

JAYANT NATH, J OCTOBER 30, 2018/n