Karnataka High Court
Saavn Media Ltd vs Sri Hamsalekha on 8 April, 2024
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CRP No. 487 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
CIVIL REVISION PETITION NO. 487 OF 2023 (IPR)
BETWEEN:
SAAVN MEDIA LTD.,
BRAND OWNER OF "JIOSAAVN",
A WING, 19TH FLOOR, ONE BKC,
G BLOCK, BKC BANDRA (EAST),
MUMBAI - 400 051.
REP. BY ITS AUTHORIZED REPRESENTATIVE
SMT. OINDRILLA MAITRA,
EMAIL [email protected]
...PETITIONER
(BY SRI RICAB CHAND K & SRI ABHISHEK MALHOTRA,
ADVOCATES)
AND:
1. SRI HAMSALEKHA,
Digitally S/O GOVIND RAJU,
signed by AGED ABOUT 70 YEARS,
NANDINI R R/O 1092/93, 10TH C CROSS,
Location: 11TH MAIN ROAD, 2ND STAGE,
High Court of
Karnataka MAHALAKSHMIPURAM,
BANGALORE - 560 086.
REP. BY ITS POA HOLDER,
SMT. TEJASWINI.N,
D/O NAGARAJ R,
R/O G.R. SHARADA NILAYA,
#749, 4TH B MAIN, 2ND CROSS,
ASHRAMA ROAD, LAGGERE.
BANGALORE - 560058.
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CRP No. 487 of 2023
2. M/S MARS FILMS PRIVATE LIMITED,
BRAND OWNER "JHANKAR MUSIC"
NO 53/A, GROUND FLOOR, KHADHI COMMISSION
HBCS, VIVEKANANDANAGAR,
KATARIGUPPE MAIN ROAD,
BANGALORE - 560 085
REPRESENTED BY ITS PARTNER
BHARATH KUMAR JAIN
EMAIL [email protected]
PREVIOUSLY KNOWN AS
"MARS RECORDING PVT LTD."
3. AIRTEL DIGITAL LIMITED,
BRAND OWNER OF "WYNK MUSIC",
BHARTI CRESCENT, 1, NELSON
MANDELA ROAD, VASANT KUNJ
PHASE - II, NEW DELHI - 110070.
REP. BY ITS DIRECTOR
EMAIL: [email protected]
4. HUNGAMA DIGITAL MEDIA
ENTERTAINMENT PRIVATE LIMITED,
R/O SF-B- 07, ART GUILD HOUSE,
PHOENIX MARKET CITY, LBS MARG,
KURLA (W), MUMBAI - 400070.
REP. BY ITS DIRECTOR,
EMAIL: companysecretary@hungama .com
5. GAMMA GAANA LIMITED,
R/O EXPRESS BUILDING,
9-10 BAHADURSHAH ZAFAR MARG,
NEW DELHI - 110 002.
REP. BY ITS DIRECTOR
EMAIL: [email protected]
...RESPONDENTS
(BY MISS AKSHATHA M PATEL, ADVOCATE FOR R1;
MISS LEKHA.G.D, ADVOCATE FOR R2;
SRI VENKATA RANHAYAN, ADVOCATE FOR R3;
SRI K.J KAMATH, ADVOCATE FOR R4;
SMT. SHILPA.G, ADVOCATE FOR R5)
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CRP No. 487 of 2023
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 22.05.2023 PASSED ON IA 7 IN OS
NO.4967/2021 ON THE FILE OF XVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU DISMISSING THE IA NO.7
FIELD UNDER ORDER VII RULE 11 OF CPC, FOR REJECTION OF
PLAINT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
ON 08.02.2024 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the order dated 22.5.2023 passed on
IA No.7 in OS No.4967/2021 by the learned XVIII
Additional City Civil and Sessions Judge, Bengaluru,
dismissing IA No.7 filed under order VII Rule 11 of CPC,
for rejection of plaint, defendant No.3 is before this Court
in this petition.
2. The parties would be referred to as per their
rankings before the trial Court for the sake of convenience.
3. The factual matrix of the case is as below:
(a) The plaintiff claiming that he is a renowned
Indian Song Writer and a Music Composer had an
illustrious career and had composed and written
musical works for more than 300 films. He was
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awarded several awards by various institutions -
Government and non Governmental. He is the
original Lyricist and Musical Composer of several
musical works included in cinematographic films. The
defendants in their channels have admitted that he is
the author, composer and lyricist of the songs,
albums etc. It is stated that the plaintiff is a
member of Indian Performing Rights Society (IPRS)
since 1988 and has been collecting royalty
distributed by the Society and he has not received no
other royalty for any other form of exploitation of
'the Work', independent to the Cinematographic
films. He contended that plaintiff being member of
IPRS, was under the assumption that IPRS is
collecting the Royalty on his behalf.
(b) It is stated that the plaintiff recently came to
know that defendant No.1 is commercially exploiting
the work through its label. The royalty of these
proceeds has been withheld from the plaintiff. It is
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contended that the plaintiff has not assigned or
waived the right to receive consideration and or
royalties to be shared on equal basis with the
assignee of copy right for utilization of such work in
any form other than for the communication to the
public along with cinematographic film in a Cinema
Hall. The plaintiff allege that defendant Nos. 2 to 5
are making available the work independent to
cinema continuously for internet streaming but
however, are not part of IPRS allowing it to be able
to collect and rightfully distribute the pending
royalties to the plaintiff. Defendant Nos. 2 to 5 have
failed to provide due and proper name credits to the
plaintiff and they have suppressed licences/royalties
collected by them and failed to protect the
authorship right and share economic benefit to the
plaintiff. It is alleged that defendant No.1 apart from
having agreements with defendant Nos.2 to 5, has
been entering into various agreements locally which
are beyond the capacity of IPRS society, thereby the
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statutory rights of the plaintiff are being violated.
The plaintiff contends that the cause of action arose
for the suit on 06-02-2021 when the plaintiff came to
know about the violations and issued legal notices
and such cause of action is continuous and recurring
in nature. With these contentions, the plaintiff prayed
for following reliefs:
"a. Directing the defendants by themselves,
their representatives, agents, servants,
partners, licencee's, assignee's, subsidiaries
or anyone acting on their behalf and in active
concert or participation with them or any of
them to display the due name credits of 'Sri
Hamsalekha'/plaintiff in each category of
contribution i.e., lyrics and musical
composition while exhibiting, releasing,
transmitting, displaying and /or
communicating in any form to the public
anywhere in the World as per Schedule A;
b. Directing the defendants to render
honestly and faithfully true account of the
considerations and or profit/royalties that
defendants have derived by commercially
communicating the work in Schedule A to the
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public and directing payment of such
consideration and or profit/royalties in equal
share to the plaintiff along with an interest of
12% per annum on awarded amount
calculated from the date of filing this suit till
the date of payment;
c. Directing the defendants to maintain
statements of royalties with respect to
Schedule A and accordingly distribute the
equal share of consideration and /or royalties
to the plaintiff henceforth on a quarterly
basis;
d. Directing the defendants to pay
damages of Rs.10,000/- per month calculated
from the date of filing this suit for moral and
economic violation of plaintiff's copyright;
e. Directing the defendants to pay the plaintiff
the costs of this suit and pass such other
orders as this hon'ble Court deems fit and
proper in the circumstances of the case;and
f. The plaintiff undertakes to pay differences
in court fee if any at the time of final decree
and judgment;"
4. After receiving summons, defendant No.3(the
revision petitioner herein), appeared and filed an
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application in IA No.7/2023 before the trial Court under
Order VII Rule 11 CPC, seeking rejection of the plaint.
5. The affidavit filed in support of the application
contend that the plaintiff lack locus standi and has not
disclosed the cause of action. It is the case of the
applicant in the said IA that, the plaintiff being Member of
IPRS has assigned all his rights to IPRS and therefore, the
plaintiff cannot maintain the present suit. It was
contended that being Member of the IPRS and in view of
exclusive Agreement of Rights in favour of IPRS by way of
Assignment Agreements, the plaintiff do not have any
residual rights to agitate the present suit. Therefore, the
plaintiff lacks locus standi to file and maintain the present
suit. It was contended that the claim for royalties is
contrary to the provisions of the Copyright Act, 1957 and
such claims are barred by provisions of Section 16 of the
Act as the plaintiff has no further rights under the said Act,
after the Assignment of Rights to the IPRS. It is contended
that the plaintiff is an Author by virtue of being a Music
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Composer and he is neither the owner of the works in
question nor the copy rights assigned as defined under
Section 33(1) of the Act. Therefore, the plaintiff being the
Member of the IPRS Society with which he had executed
Assignment Agreements and therefore, the plaintiff cannot
maintain the suit.
6. The second contention of defendant No.3 was
that the plaintiff has no cause of action in view of the
settled legal position regarding the utilization of the sound
recordings. It is contended that the Apex Court in the
case of IPRS Vs. Eastern Indian Motions Pictures
Association and others,1 has held that "when a song is
composed and Lyrics written upon the composer- lyricist
being commissioned to do so by a Film Producer, then
when the sound recording of such song is communicated
to the public, the Author of the composition and the
Lyricist are not entitled to claim any independent licence
fee or royalty".
AIR 1997 SC 1492,
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7. It is contended that the rights of the authors of
the underlying literacy and musical works are subsumed in
the derivative sound recording which is an independent
copyrighted work under the ownership of producer in the
cinematographic field. Therefore, the rights of sound
recording as mentioned in Section 14(e) of the Act can
only be enjoyed by the owner of the sound recording
without any interference from the authors of underlying
works, namely, literary works and the musical works.
Therefore, it is contended that the plaintiff has not shown
any cause of action to maintain the suit.
8. The third contention raised by defendant
No.3/applicant is that, the suit is liable to be rejected
owing to undervaluation. It is contended that the plaintiff
has undervalued the suit to file it before the trial Court
instead of filing the same before the Commercial Court
which ordinarily had the jurisdiction. It is contended that
the disputes relating to the copyrights falling under the
category of commercial dispute and therefore, the plaintiff
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has to disclose the specified value under the Commercial
Courts Act, which he has not done and therefore, there is
a gross under valuation of the suit. In this regard, the
applicant has heavily relied upon the provisions of the
provisions of Commercial Courts Act and contended that
the present suit is not maintainable.
9. The said application was opposed by the
plaintiff before the trial Court. The said application was
heard by the trial Court along with the similar application
filed by the other defendants and passed the order and the
applications came to be dismissed by order dated 22-05-
2023. Being aggrieved by the said order, defendant No.3
is before this Court in revision.
10. On issuance of notice, the plaintiff and other
respondents have appeared before this Court through their
counsel.
11. The arguments by learned counsel appearing
for the revision petitioner/defendant No.3 and the learned
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counsel for respondent No.1/plaintiff and other
respondents were heard.
12. The only point that would arise for
consideration is,
"Whether the revision petitioner/defendant No.3 has
made out any grounds envisaged under Order VII Rule 11
of CPC for rejection of the plaint?"
13. The learned counsel appearing for the revision
petitioner/defendant No.3 submitted that the jurisdiction
of the present suit was the Commercial Court. He submits
that Section 2(1)(c) of the Commercial Courts Act, defines
that "an IPR matter would be falling within the scope of
Commercial Courts Act and the plaintiff has to mention
the specified value in the plaint". It is contended that the
plaintiff has claimed under prayer 'B' and 'D' that, he is
entitled for a sum of Rs.10,000/- per month from the date
of suit and also that the accounts of the defendants
concerning the earnings made in violation of the Copyright
Act, be paid to him. Therefore, the plaintiff should have
specified the value as required under Law. It is submitted
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that, in all probability, the said specified value was more
than Rs.3,00,000/- and therefore, the plaintiff should have
filed the suit before the Commercial Court, but not before
the Regular Court and as such, the plaint is liable to be
rejected under Order VII Rule 11 of the CPC. He submits
that, in the impugned order, the documents of revision
petitioner were not considered and the arguments of
defendant No.1 alone was considered and therefore, the
impugned order overlooks the submission made by the
revision petitioner.
14. The second contention of the plaintiff that,
defendant No.3 is not paying royalty to the IPRS. If that is
the contention, the plaintiff should have sued the IPRS and
therefore, the plaintiff could not have maintained the
present suit only against these defendants. The plaintiff
had entered into the Assignment Agreement with IPRS and
therefore, it was the IPRS which was liable to pay the
royalty, if any, to the plaintiff. Therefore, he contends that
the provisions of the Copyright Act, make it clear that
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when the rights are assigned to IPRS, it is only the IPRS
which would be liable. Therefore, he submits that a
direction be issued to file the suit before the Commercial
Court and to restrict the claims of the plaintiff.
15. The learned counsel appearing for respondent
Nos. 2 and 4 would submit that, under Section 57 of the
Copyright Act, the remedy is available only for the
exploitation of work etc., for the copyrighted work and
only for such violations, the suit may be filed. Therefore,
none of the reliefs claimed by the plaintiff survives under
Section 55 of the Act. He has taken the Court through the
provisions of Sections 38 and 33 of the Copyright Act, and
has contended that the plaintiff has not made out any case
and therefore, the impugned order passed by the trial
Court is incorrect. In other words, he has reiterated the
contentions taken up by defendant No.3/revision
petitioner.
16. The learned counsel for respondent No.5 has
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also supported the arguments of the learned counsel for
the revision petitioner.
17. The learned counsel for respondent
No.1/plaintiff contends that the proviso to Section 18(1) of
the Copyright Act, show that only collection and
distribution is assigned to IPRS but not right to sue.
Therefore, the plaintiff has locus standi and the
assignment cannot be contrary to Section 18(1) of the
Copyright Act. It is submitted that proviso to Section 33(1)
of the Copyright Act, lays down that "the rights are with
the plaintiff and such rights are consistent with the
obligation to the society". Only after bringing the books of
accounts etc., the Court fee can be computed and
therefore, the contention that the valuation of the suit is
not proper and correct cannot hold any water. He has
submitted that the provisions of Order XVIII Rule 20 of
CPC has to be invoked by the trial Court, once the rights
are determined and therefore, the plaint cannot be
rejected on that count. It is further submitted that the
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cause of action has been disclosed by the plaintiff in para
23 of the plaint and the plaintiff being Lyricist and
Composer and his name was not properly disclosed while
the copyrighted work was being displayed/communicated
to the public. Therefore, there was a cause of action for
the plaintiff and therefore, the suit is maintainable. It is
submitted that Section 12 of the Commercial Courts Act is
clear in this regard and therefore, the revision is liable to
be rejected.
18. The contention of the revision petitioner is that
the suit is not maintainable in view of the bar contained in
Order VII Rule 11 of CPC. It is his contention that, the
plaintiff has no locus standi to file the suit and also that
the claim of the plaintiff is barred. For better
understanding of the provisions of Order VII Rule 11 of
CPC, the same is reproduced below:
"11. Rejection of plaint.-- The plaint shall be
rejected in the following cases:--
(a) where it does not disclose a cause of
action;
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(b) where the relief claimed is undervalued, and
the plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) where the relief claimed is properly valued,
but the plaint is returned upon paper insufficiently
stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement
in the plaint to be barred by any law;
(e) xxx xxx xxx
(f) xxx xxx xxx
[Provided that the time fixed by the Court for
the correction of the valuation or supplying of the
requisite stamp-paper shall not be extended unless
the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or
supplying the requisite stamp-paper, as the case may
be, within the time fixed by the Court and that refusal
to extend such time would cause grave injustice to the
plaintiff.]
19. The Clause (a) of Rule 11 is in respect of not
disclosing about the cause of action. In a case on hand,
para 23 of the plaint states as below:
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"23. CAUSE OF ACTION: The cause of action
arose to this suit on 06-02-2021 when the plaintiff
came to know about the said violations and issued
legal notices and the cause of action is continuous
and recurring in nature. The cause of action for the
present suit arises each day the defendants
continues to commercially exploit the plaintiffs'
work."
20. Thus, it is evident that the plaintiff discloses the
cause of action. We are not entering into the question
whether it is a proper cause of action or not? So also, the
correctness or otherwise of the 'cause of action' contended
by the plaintiff cannot be gone into at this juncture, when
the initial bar is raised by defendant No.3/revision
petitioner. Prima facie, plaintiff has disclosed the cause of
action and whether the said cause of action is related to
the prayer made in the plaint can only be ascertained at
the time of trial. Therefore, the plaint cannot be rejected
on the ground that it does not discloses the cause of
action.
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21. The second Clause (b) of Rule 11 is regarding
valuation. It is pertinent to note that defendant No.3 who
is the revision petitioner herein contends that, the plaintiff
has not disclosed the proper valuation of the suit. It is his
contention that the plaintiff should have shown the correct
valuation. It is his contention that the valuation of the suit
as per the Karnataka Court Fee and Suit Valuation Act is
not proper and also that the suit being a commercial
dispute, the plaintiff should have disclosed the specified
value as defined under the provisions of the Commercial
Courts Act. Therefore, the revision petitioner contends that
the plaintiff do not disclose the correct valuation and the
suit should have been filed before the Commercial Courts
under the provisions of the Commercial Courts Act and
therefore, the plaint is liable to be rejected.
22. It is worth to note that filing of the suit in the
Court which does not have jurisdiction does not attract the
provisions of Order VII Rule 11 of CPC. In fact, Rule 10 of
Order VII speaks of 'Return of the plaint' when the plaint is
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filed in a Court which does not have the jurisdiction.
Therefore, filing of the suit in a Court having no
jurisdiction cannot be a ground to invoke the provisions of
Order VII Rule 11 of CPC. Hence, defendant No.3 under
the guise of improper valuation of suit or not mentioning
the specified value (under CCA) cannot seek that the suit
of the plaintiff is barred for non filing the same in the
Commercial Court.
23. It is worth to note that para 24 of the plaint
mention about the jurisdiction. The plaint states that by
virtue of Section 20 of CPC and Sections 55, 56, 57 of the
Copyright Act, the City Civil Court, Bangalore, has the
jurisdiction to try the suit.
24. It is worth to note that the question of valuation
was not raised before the trial Court. In fact, the prayer
made by defendant No.3/revision petitioner is on three
grounds as noted supra. The plaintiff states in the plaint
in para 25 that, "the plaintiff values the relief sought for in
the suit and an ad-valorem as per the valuation slip and a
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Court fee of Rs.325/- has been paid". The breakup of the
court fee paid is not available at this juncture. Obviously,
the trial Court has not found any fault with the valuation of
the suit. Moreover, the question of valuation and court fee
has not been raised by defendant No.3 and the learned
counsel appearing for the plaintiff has stated that the
provisions of Order XX Rule 18 can be invoked and decree
can be drawn by the trial Court after the court fee is paid.
Therefore, the valuation of the suit cannot be faulted with.
Moreover, where the relief is undervalued and the plaintiff
is required to pay the Court the correct court fee within
the time fixed by the Court, if he fails to do so, then only,
the plaint is liable to be rejected. Evidently, the question
of court fee and valuation is not raised before the trial
Court. It was the contention of defendant No.3 that the
valuation is not properly done and therefore, the plaint is
liable to be rejected.
25. It is pertinent to note that the plaintiff has
called for the accounts. Prayer-B states that 'the
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defendants are to be directed to render the true account of
the considerations or profits/royalties that the defendants
have derived by commercially communicating the work as
per schedule -A to the public and that they may be
directed to pay the same along with the interest."
Therefore, when the plaintiff has made the valuation
nominal, no fault can be found with the same. The
valuation has to be determined only if the plaintiff
establish that he is entitled to seek the account of the
profit earned by the defendants. Akin to suit for accounts
in a partnership, the entitlement of the plaintiff to seek
accounts has to be determined and only if he succeeds
then the question of valuation and payment of the
adequate court fee is come into picture. Hence, the
provisions of Rule 11 (b) cannot be applied to the case on
hand.
26. Further the judgment in the case of Vishal
Pipes Ltd Vs Bhavya Pipe Industry2 by Delhi High
MANU/DE/2079/2022
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Court cannot be made applicable since it does not consider
the remedy available under Order 7 rule 10 of CPC.
Moreover, the question whether the Courts are
empowered to determine the Specified Value (u/s 12 of
CCA) even if it is not done by the plaintiff, is not
considered.
27. Clause (d) of Rule 11 states that when the suit
appears from the statements made in the plaint that the
suit is barred by any law, then the plaint may be rejected.
In fact, the contentions of revision petitioner were on this
aspect of Rule 11.
28. It is the case of the revision petitioner that the
plaintiff does not have the locus standi to maintain the suit
since he has already assigned all his rights to the IPRS.
Evidently, the assignment of rights to IPRS is not in
dispute. The question is, what are the rights that have
been assigned by the plaintiff to IPRS?
29. It is pertinent to note that, to ascertain whether
the plaintiff has assigned all his rights to the IPRS, it is
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necessary to enter into the question of fact by referring to
the Assignment Deeds.
30. Chapter -VII Section 33 of the Copyright Act,
1957 deals with the Copyright Society. Section 33 (1)
and (3) of the Act, reads as below:
"33. Registration of Copyright society.-- (1)
No person or association of persons shall, after
coming into force of the Copyright (Amendment)
Act, 1994 (38 of 1994) commence or, carry on the
business of issuing or granting licences in respect
of any work in which copyright subsists or in
respect of any other rights conferred by this Act
except under or in accordance with the registration
granted under sub-Section (3):
Provided that an owner of copyright shall, in
his individual capacity, continue to have the right to
grant licences in respect of his own works
consistent with his obligations as a member of the
registered copyright society;
Provided further that the business of issuing
or granting licence in respect of literary, dramatic,
musical and artistic works incorporated in a
cinematograph films or sound recordings shall be
carried out only through a copyright society duly
registered under this Act;
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Provided also that a performing rights society
functioning in accordance with the provisions of
section 33 on the date immediately before the
coming into force of the Copyright (Amendment)
Act, 1994 (38 of 1994) shall be deemed to be a
copyright society for the purposes of this Chapter
and every such society shall get itself registered
within a period of one year from the date of
commencement of the Copyright (Amendment) Act,
1994.
(2) XXX XXX XXX
(3) The Central Government may, having
regard to the interests of the authors and other
owners of rights under this Act, the interest and
convenience of the public and in particular of the
groups of persons who are most likely to seek
licences in respect of the relevant rights and the
ability and professional competence of the
applicants, register such association of persons as a
copyright society subject to such conditions as may
be prescribed:
Provided that the Central Government shall
not ordinarily register more than one copyright
society to do business in respect of the same class
of works.
3[(3A) The registration granted to a copyright
society under sub-section (3) shall be for a period
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of five years and may be renewed from time to
time before the end of every five years on a
request in the prescribed form and the Central
Government may renew the registration after
considering the report of Registrar of Copyrights on
the working of the copyright society under section
36:
Provided that the renewal of the registration
of a copyright society shall be subject to the
continued collective control of the copyright
society being shared with the authors of works in
their capacity as owners of copyright or of the right
to receive royalty:
Provided further that every copyright society
already registered before the coming into force of
the Copyright (Amendment) Act, 2012 (27 of 2012)
shall get itself registered under this Chapter within
a period of one year from the date of
commencement of the Copyright (Amendment) Act,
2012.]"
31. It is pertinent to note that, a plain reading of
the proviso to Section 33 shows that "the business of
issuing or granting licence in respect of literary, dramatic,
musical and artistic works incorporated in a cinematograph
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films or sound records shall be carried out only through a
copyright Society duly registered under this Act".
32. It is also pertinent to note that, Section 57 of
the Copyright Act, 1957, deals with the Author's Special
Right which reads as below:
"57. Author's special rights.-- 1[(1)
Independently of the author's copyright and even
after the assignment either wholly or partially of
the said copyright, the author of a work shall have
the right--
(a) to claim authorship of the work; and
(b) to restrain or claim damages in respect of
any distortion, mutilation, modification or other act
in relation to the said work 2[***] if such
distortion, mutilation, modification or other act
would be prejudicial to his honour or reputation:
Provided that the author shall not have any
right to restrain or claim damages in respect of any
adaptation of a computer programme to which
clause (aa) of sub-section (1) of section 52 applies.
Explanation.-- Failure to display a work or to
display it to the satisfaction of the author shall not
be deemed to be an infringement of the rights
conferred by this section.]
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(2) The right conferred upon an author of a
work by sub-section (1), 3[***], may be exercised
by the legal representatives of the author."
33. Thus, it is evident from the plain reading of
Section 57 that the Author will have the right to restrain or
claim damages in respect of any distortion, mutilation,
modification or other act in relation to the said work.
Section 57 (1)(a) permits him to claim authorship of the
work.
34. It is also relevant to note that the combined
reading of Sections 33 and 57 of the Copyright Act, 1957,
will make it clear that the assignment to the IPRS is
inclusive of any such right to claim royalty. But the author
has the right to claim name credit by invoking author's
right.
35. It is pertinent to note that the Section 33 bars
any person or association of persons carrying on the
business of issuing or granting licences. In the case on
hand, the plaintiff is not doing the business of issuing or
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granting licences. He is the author and therefore, his
rights are protected under Section 57 of the Act. Hence,
Section 33 cannot act as a bar for the plaintiff to institute
the suit.
36. It is the specific contention of the revision
petitioner that, the suit is barred under Section 33 (1) and
33(3) of the Copyright Act. The plain reading of Section
33(1) and 33(3) do not show the suit is barred. What is
barred is that to carry on issuing or granting licences. It
does not bar the individuals like authors from filing any
claim. Therefore, it cannot be said that the provisions of
the Act bar the filing of the present suit.
37. The second contention is that, the decision of
the Apex Court in the case of IPRS Vs. Eastern Indian
Motion Pictures Association and others, referred supra,
lays down that, "when a song is composed and lyrics written
upon the composer- lyricist being commissioned to do so by a
film producer, the author of the composition and lyricist are
not entitled to claim any independent licence fee or royalty
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when sound recording of such song is communicated to the
public."
38. It is pertinent to note that, the plaintiff when
claims name credit, that cannot be deemed to have been
barred. Obviously, the said decision of the Apex Court is
prior to coming into force of the Amendment to the
provisions of the Copyright Act. Therefore, the name
credit or the authorship of the plaintiff cannot be claimed
to have been restricted by virtue of the said judgment.
What is stated in the judgment of IPRS VS. Eastern
Indian Motions Picture Association and others referred
supra is that, "when the artistic work is an amalgamation of
several independent works, any individual rights cannot be
claimed". Again, this aspect is to be determined on the
basis of the evidence that may be led before the Court.
Therefore, it cannot be said that each and every musical
rendition or recording is hit by the judgment of the Apex
Court in the above case.
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39. The next contention of the learned counsel for
the revision petitioner is that, the impugned order does
not consider the fact that 2012 amendment is only
clarificatory in nature. In this regard, he relies on the
judgment in the case of IPRS Vs. Entertainment
Network (India) Limited3, wherein, in para 31, it is
stated as below:
"31. The 2012 amendment does not alter the provisions
of the Act, on interpretation whereof in the judgments
aforesaid it was held that communication to the public of
underlying literary and musical works as part of sound
recording, under authorisation/licence from owner of the
copyright in the sound recording, does not require
authorisation/permission from the owner of the copyright
in the underlying literary and musical works of the sound
recording. Thus when Section 19(10) provides that
assignment of copyright in any work to make a sound
recording which does not form part of any cinematograph
film shall not affect the right of the author of the work to
claim equal share of royalties and consideration payable
for any utilisation of such work in any form, it cannot
mean that utilisation of the work as embodied in the
sound recording also entitles the owner of the copyright
CS (os)666/2006
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in such work to demand equal share of royalties and
consideration payable for the sound recording. To read
the same otherwise would make the other provisions, on
interpretation whereof it was held that no authorisation is
required to be taken from owners of copyright in
underlying works of the sound recording, while
communicating the sound recording under authorisation
of copyright in sound recording, otiose. Any
interpretation which makes another provision of the
statute redundant or otiose, is to be avoided and the rule
of harmonious construction has to be applied. Thus
Section 19(10) has to be read as not affecting the right
of the author of the underlying works in sound recording,
to claim share in royalty payable for utilisation of such
works though identically as in the sound recording but in
any other form, as had earlier also been held by the
Single Judge in the judgment on interim relief in CS(OS)
No.1996/2009. To the said extent, the amendment of the
year 2012, is clarificatory. Moreover Section 19(10)
provides for sound recordings which do not form part of
any cinematograph film. The claim of IPRS in the plaint in
both the suits is with respect to sound recordings forming
part of cinematograph film. IPRS, in the plaint in CS(OS)
No.1996/2009, in para 15 has expressly admitted that in
India, film music makes up a major part of music
industry and the music companies also source the rights
from the film producers and effectively own all rights in
the underlying works in the said film music also. I thus
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conclude that the amendment of the Act of the year
2012, even if were to be applied, does not change the
legal position as already enunciated in the judgments
aforesaid."
40. It is evident from the above decision that,
Section 19 (10) has to be read, as not affecting the right
of the author of the underlying works in sound recording
to claim share in royalty payable for utilization of such
work though identically as in the sound recording in any
other form. It is also relevant to note that the right of the
author is not taken away and it is subject to Section 33
and 57 of the Copyright Act. If any right remains, like
claiming the name credit, that is not affected by virtue of
Section 33 or any other provisions of the Act.
41. The next contention is that, the revision
petitioner has already procured licence from third party
licensor to utilize sound recording in which plaintiff's work
is subsumed and therefore, the plaintiff is barred under
law from making any claim for royalty and licence fee in
the underlying lyrics and composition. Therefore, he
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contends that there is no cause of action that subsists in
the present case. Again, these claims are to be sorted out
only by way of evidence. Whether the rights are subsumed
in the licence from the third party licensors or not in the
'Art Work' is a matter to be determined in a suit. At no
stretch of imagination, it can be said that the provisions of
the Act itself bars the filing of the suit of the present
nature. It is also relevant to note that even if we assume
that the plaintiff is barred from claiming any licence fee,
royalty or such other monetory reliefs; the claim of the
plaintiff, sofar as seeking name credit at the time of the
communication to the public is very well maintainable. It
is not known what are the terms of the assignment of the
rights of the plaintiff to the IPRS. Obviously, the IPRS is
not a party in the present suit. If at all contention is taken
up by the defendants that IPRS is also necessary party to
the suit, the same is to be considered by the trial Court by
way of Preliminary Issue. Therefore, the above contention
of the revision petitioner is not sustainable in law.
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42. The next contention as stated supra is
regarding the valuation of the suit. As stated above, the
valuation of the suit cannot be objected since the
petitioner has not raised the contention of the valuation of
the suits before the trial Court. The valuation is also the
mixed question of law and fact. Therefore, if the trial Court
comes to the conclusion that the valuation of the suit is
not proper, it may direct the plaintiff to pay the necessary
Court fee and then only, it would proceed to pass decree.
Therefore, this ground is not available. The valuation of
the suit has to be on the bases of the averments of the
plaint and nothing else. This view is fortified by the
judgment of the Apex Court in the case of Bharat
Bhushan Gupta Vs Pratap Narain Varma and
another4.
43. As noted above, the question whether the suit
has to be treated as a Commercial Suit or not is not of
much importance. Though it is a fact that under Section
2022 liveLaw (SC) 552
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2(c) of the Commercial Courts Act, the intellectual
property matters and company disputes are also to be
termed as the Commercial disputes, it is clarified by the
provisions of Section 12 of the Commercial Courts Act. If
at all, the plaintiff wants to file the suit as a Commercial
Suit, then the specified value of the suit has to be
mentioned. In the case on hand, the plaintiff has not
claimed that the suit is to be treated as a Commercial Suit.
Therefore, defendant No.3/revision petitioner herein
cannot force the plaintiff to incorporate of the specified
value in the plaint and then claim that the suit should have
been filed before the Commercial Court and on that count,
he cannot contend that the suit is not maintainable. If at
all the trial Court finds that, it is a commercial dispute,
then it is at liberty to return the plaint to file the same in
the proper jurisdictional Court. Hence, this Court does not
find any merit in the revision.
44. Though the order passed by the trial Court is
short and does not address all the points raised by the
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revision petitioner, no fault can be found in respect of the
conclusions reached by the trial Court. Hence, the revision
petition is bereft of any merits. For aforesaid reasons, the
point raised by this Court is answered in the negative.
Hence the following:
ORDER
The Civil Revision Petition is dismissed.
Sd/-
JUDGE
tsn*
