IA No. 12926/2009 in CS(OS) 1889/2009 & IA No. 13058/2009 in CS(OS) 1906/2009. Case: Super Cassettes Industries Ltd. Vs Hamar Television Network Pvt. Ltd. and Anr., [Alongwith IA No. 13058/2009 in CS(OS) 1906/2009]. High Court of Delhi (India)
| Case Number | IA No. 12926/2009 in CS(OS) 1889/2009 & IA No. 13058/2009 in CS(OS) 1906/2009 |
| Counsel | For Appellant: K. K. Khetan and Geetanjali Visvanathan, Advs. Jagdish Sagar, and For Respondents: Abhishek Kr. Rao and Shailash Suman, Advs. |
| Judges | Rajiv Shakdher, J. |
| Issue | Copyright Act, 1957 - Sections 2, 2(1), 13(1), 14, 17, 19, 30, 31, 39, 51, 52, 54, 171(3), 173(3); Human Rights Act, 1998; Constitution of India - Article 19(1); Civil Procedure Code (CPC) - Order 7, Rule 11 - Order 39, Rules 1, 2 |
| Citation | 2011 (45) PTC 70 (Del) |
| Judgement Date | May 24, 2010 |
| Court | High Court of Delhi (India) |
Judgment:
Rajiv Shakdher, J.
IA No. 12926/2009 (Order 39 Rule 1 & 2 of CPC) in CS(OS) 1889/2009
IA No. 13058/2009 (Order 39 Ruoe 1 & 2 of CPC) in CS(OS) 1906/2009
1. I propose to dispose of the captioned applications in the abovementioned suits being: CS(OS) No. 1906/2009 and 1889/2009 by a common order for the reason that parties in the two suits are common [save and except M3 Media Pvt. Ltd. which is impleaded as defendant No. 2 in CS(OS) No. 1906/2009; and similarly, Hamar Television Network Pvt. Ltd. (hereinafter referred to as 'Hamar TV), which is impleaded as defendant No. 1 in CS(OS) 1889/2009]; the pleadings are identical except for minor differences; and lastly though not the least, the issues and submissions made before me are common. Thus, except for the fact that relief is directed against parties which are not entirely identical, there is substantial commonality of parties, issues, pleadings and also reliefs.
2. Coming to the applications: the plaintiff, which carries on its business under T Series Brand of music cassettes, claims to be an owner of a large repertoire of musical works. Therefore, by way of the captioned applications the plaintiff has sought an injunction pending trial of the suit, against infringement of its copyright in musical works, by the defendants.
2.1 Notably in the written statement filed, while there is no assertion by the defendants that they have a copyright in the concerned musical works; they have, as is the usual defence, put the plaintiffs to notice that they have to provide proof of their rights in the repertoire of musical works they claim to possess. More importantly, a defence of substantiality is also taken - in as much that the alleged takings of the plaintiffs musical work does not constitute "substantial" takings, therefore, no case for infringement is made out. Furthermore, it is stated that if the takings are construed as substantial, even then their act cannot be construed as an infringement as they have made a "fair use" of the concerned musical works. In other words, they have invoked the statutory defence of "fair dealing" as provided in Section 52(1)(a)(ii) and Section 52(1)(b)(ii) of the Copyright Act, 1957 (hereinafter referred to as 'Copyright Act').
3. In this context let me advert to facts which, in my view, are necessary for the purpose of disposal of the captioned applications.
3.1 The plaintiff, as noticed above, is engaged in the business of manufacturing and marketing audio cassettes under the brand name "T Series Music Cassettes". The plaintiff also asserts that it has a large repertoire of cinematographic films and sound recordings. It claims that its repertoire of music includes collection of over 20,000 Hindi non-film songs and around 50,000 songs in regional languages. The plaintiff also claims that it has launched and/or promoted some of the biggest, and most talented as also well known artists of the likes of Anuradha Paudwal, Sonu Nigam, Udit Narayan, Kumar Sanu, Abhjit, Manoj Tiwari etc. In order to protect its rights the plaintiff asserts that it has acquired copyright of literary, musical and other works, which it commissions and manages by entering into contracts whereby, the copyright vested in the authors or other prior owners in the said musical works is assigned to it. In its capacity as a purchaser, that is, sound recording company, it claims to be a corporate author and the first owner of the copyright in the sound recording and audio visual works (cinematograph films) which are produced at its initiative and responsibility. The plaintiff also claims that it has executed licenses with various broadcasters which use its work, in which, it enjoys copyright. The plaintiff further asserts that in view of its entire business model being pivoted on the intellectual property right it has acquired in the aforementioned works, it diligently monitors, infringement of its rights by taking appropriate actions. It is towards this end that it has filed the present action.
3.2 In so far as the defendants are concerned it is, specifically, averred in the plaint that defendant No. 1 through its channel Hamar TV, which is primarily dedicated to Bhojpuri language caters to the demand for regional television market. Defendant No. 2, it is stated is primarily engaged in the business of electronic media, and is thus successfully running news and entertainment channels under the name of Positiv Media Group including Hamar TV. It is alleged that in March, 2009 the plaintiffs came to know that the defendants were broadcasting its copyrighted works without due permission. In this connection a meeting was set up with one Ms Neelanjana, Deputy Managing Director of the defendants. At this meeting the representative of the plaintiff stressed the need for the defendants to obtain a license from the plaintiff if it was desirous of legitimizing its business; as otherwise unauthorized broadcast of its copyrighted works violated its rights. The said meeting was followed by a letter dated 04.03.2009 wherein, the fee payable by defendant No. 1 was mentioned. Since defendant No. 1 continued to infringe the plaintiffs' copyright, a legal notice dated 06.04.2009 was issued to defendant No. 1, by the plaintiff through its advocate, calling upon defendant No. 1 to cease and desist broadcast of its copyrighted work, without license. In the said legal notice reference was made to specific instances of infringement of plaintiffs repertoire which had come to its notice, including programmes such as Naino Ke Jadoo, Aarti Sung by Anuradha Paudwal and Qayamat Se Qayamat Tak. It appears that defendant No. 1 replied to the said notice vide its reply dated 16.04.2009. In reply, apart from denying the plaintiffs' allegation of infringement, defendant No. l specifically stated that since its channel was on test trials from 12.03.2008 to 06.03.2009, the contents of the plaintiffs' repertoire may have been used by it. Realising the enormity of the problem at hand defendant No. l on the same day also filed a caveat in the District Court at Noida, U.P.
3.3 The plaintiff followed the aforementioned legal notice with a reminder dated 11.05.2009 wherein, it sought to clarify that the infringement in the previous notice were actually for the period 24.03.2009 to 26.03.2009 and, therefore, much after the launch of its channel by defendant No. 1; on 07.03.2009 which was the date indicated in its reply of 16.04.2009. The plaintiff has averred in the plaint that in order to take the investigation further it deputed one of its employees, one Mr Deepak Kamlesh Pania. The affidavit of Mr Deepak Kamlesh Pania dated 07.07.2009 adverts to the fact that defendant No. 1 has infringed the plaintiffs' copyright in the concerned musical works between period 19.06.2009 to 22.06.2009. In the plaint it has been specifically averred that the defendant continued to infringe the plaintiffs' copyright. To establish the same, compact discs (in short 'CD') containing the infringement for the period 19.06.2009 to 25.06.2009 have been filed as a document in the present proceedings.
3.4 Based on the aforesaid facts the plaintiffs averred that there has been an infringement of:
(i) its rights under Section 14(e)(iii) of the Copyright Act in respect of sound recordings incorporated in films;
(ii) underlying musical and literary works;
(iii) violation of its rights under Section 14(d)(iii) of the Copyright Act in respect of audio visual recordings from the films which are broadcasted by defendant No. 1; and
(iv) violation of its rights under Section 14(a)(iv) of the Copyright Act, in as much as the defendants' act of recording musical work owned by the plaintiff by other means before its broadcast. This last action according to the plaintiff tantamounted to creation of a cinematograph film of the performance thereby, infringing the plaintiffs' exclusive rights in the musical works. SUIT No. 1906/2009
4. In so far as this suit is concerned the pleadings are substantially same except for a small variation. These being as follows: The allegation of violation against defendant No. 1 Positiv Television Pvt. Ltd., is that it is running various news and entertainment channels under the name of Positiv Media Group including its own channel "Focus TV". Specific instances of infringement are indicated in paragraph 24 of the plaint, which includes programs such as E! Martini. This programme includes copyrighted works belonging to plaintiffs' repertoire, from movies, such as Ghajini, Main Aisa Hi Hoon and Slumdog Millionaire.
4.1 In rebuttal, defendant No. 1 in suit No. 1889/2009, i.e., Hamar TV has denied that there is any infringement of copyright by defendant No. 1. In paragraph 9 of the written statement under the heading Preliminary Objections and Submissions, it is stated that the plaintiffs on their own showing have alleged that broadcast ranges between 10 to 30 seconds except on a few occasions where the duration is more than 30 seconds. It goes on to aver that it is clear from the allegations of the plaintiff that the maximum duration of broadcast is 40 seconds, that too not at a single stretch and, therefore, the alleged broadcast for duration in the range of 10 to 40 seconds cannot be dubbed as indiscriminate use of copyright for commercial exploitation. It relies upon the judgment of this Court in ESPN Star Sports v. Global Broadcast News Ltd and Ors. 2008 (38) PTC 477 (Del) to invoke the test of "fair dealing" to decide as to whether the alleged broadcast would amount to violation of the copyright. In support of its defence based on the principle of 'fair dealing' it relied upon the provisions of Section 52(1)(a)(i) and (ii) to contend that the alleged broadcast are in the nature of "review", "preview", "news", special programmes and interviews. These programmes, according to defendant No. 1, are in the nature of criticism or review to educate the viewing public. Reliance was also been placed...
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