The judgment establishes the interpretation of communication to the public under the Copyright Act and the criteria for establishing copyright infringement.

S. Ravindra Bhat, J.

1. This order shall dispose off I.A. No. 10742/2007 preferred under Order VII Rule 11 by the applicant defendant seeking the rejection of the plaint and also I.A. No. 6882/2007 under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908.

2. According to the plaint averments, he plaintiff is copyright holder of a variety of literary and musical works, sound recordings, music videos and cinematographic videos. It plaintiff manufactures and sells VCDs, DVDs and Cassettes containing these works and also licenses the right to exploit its works. The defendants are engaged in the business of hotels/restaurants in New Delhi.

3. The plaintiff avers that after coming to know about alleged infringement of its copyright in variety of works it asked an investigator to visit the premises of the defendant in order to ascertain the extent of viewing of those works. The said investigator visited the said premises of the defendant in May 2007 and found that few audio clippings of songs in which the plaintiff owned copyright where being played in different channels on the television in a room of the defendants hotel. The investigator also filed an affidavit in this regard. The plaintiff alleges that such transmission of works in which the plaintiff has copy right, without a license in that regard, amounts to infringement of the copy right as the defendants perform/communicate the works of the plaintiff to the public. The plaintiff thereforee seeks an injunction against the defendants restraining it from the alleged public performance and also seeks damages.

4. By order dated 31st May 2007, this Court granted ex parte ad interim injunction restraining the defendant from infringing in any manner the copyright of the Plaintiff in its works by playing the same at their hotel premises and restaurants. In support of the averments, the plaintiff has filed a copy of the DVD recorded in the defendants hotel premises.

5. The defendant filed its written statement also present application for rejection of the suit. The defendants submit that the plaintiff is unable to establish that the copyright in its works are being infringed and failed to put on record any document in this regard. It also submits that no infringement of the plaintiffs works has in fact being committed by it. The plaint according to it is, thereforee, liable to be rejected under Order VII Rule 11 Code of Civil Procedure, 1908 read with Section 55 of the Copyright Act (hereinafter referred to as the Act) for non disclosure of cause of action.

6. Mr. Ameet Datta, learned Counsel on behalf of the plaintiff, relying on the affidavit of the investigator contended that titles in which it had copyright were in fact being played in the hotel rooms, without a proper license. He states that such usage would amount to public performance/communication to public of the work, the exclusive rights to which were granted only to the copyright holder or a duly licensed person under the Act. He submitted that one of the exclusive rights prescribed by Section 14 of the Act, in the case of literary works, musical works, sound recordings and cinematograph works (films) is the right to communicate the work to the public, which is being infringed by the defendants. He also drew the attention of the Court to Section 2(ff) that defines communication to the public as occurring when a work is made available to the public directly or by any means of display or diffusion, regardless of whether the work has been seen or heard. The Explanationn to Section 2(ff) inserted in 1995 specifically mandates that making a work available by simultaneous means of communication in hotels rooms would amount to a communication to the public. Relying upon the statement of Objects and Reasons of the Amendments of 1995 he submitted that the intent of the Explanationn was to clarify the statute about the meaning of public and thereforee in effect the Explanationn clarifies that the guests in the rooms of