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2019 Supreme(Del) 1149
IN THE HIGH COURT OF DELHI AT NEW DELHI
Mukta Gupta, J.
Super Cassettes Industries Ltd. – Appellant
Versus
Shreya Broadcasting Pvt. Ltd. – Respondent
Civil Suit (Os) No. 1372 of 2009
Decided On : 25-02-2019
Pravin Anand, Adv., Prachi Aggarwal, Adv., Mrinali Menon, Adv., Yoginder Handoo, Adv., Nikhil Bhat, Adv.
The assignment of copyright in cinematograph films and sound recordings granted the assignee the exclusive right to make or authorize the making of copies of the recordings, including the right to communicate the recordings to the public through television and satellite.
Headnote:
COPYRIGHT - INFRINGEMENT - BROADCASTING - FAIR DEALING - ACTING NOT INFRINGING BROADCAST REPRODUCTION RIGHT - ASSIGNMENT - OWNERSHIP OF COPYRIGHT - ELECTRONIC EVIDENCE - ADMISSIBILITY - SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872 - DAMAGES - PUNITIVE DAMAGES - PRINCIPLES FOR AWARDING.
Fact of the Case:
Plaintiff, a private limited company engaged in the business of manufacturing and marketing audio cassettes, video cassettes, compact discs, televisions, etc., filed a suit against the defendant, a private limited company telecasting through its channel "TV5", for infringement of its copyright in cinematograph films and sound recordings. The plaintiff claimed that the defendant was broadcasting its copyright work without permission/license and sought a decree of permanent injunction, rendition of accounts and delivery of the infringing articles, damages and costs.
Finding of the Court:
1. The defendant's act of broadcasting the plaintiff's repertoire on their channel without a license amounted to infringement of the plaintiff's copyright. 2. The defendant could not claim the benefit of Section 39 of the Copyright Act, 1957, which excludes from the ambit of infringement, use of excerpts by a broadcaster for reporting on current events or for review in the process of dissemination of the news, as the use of the copyright work was not for criticism or review of the work but to enhance the defendant's programs. 3. The defendant could not claim the benefit of Section 52(1)(a)(ii) of the Copyright Act, 1957, which excludes from the ambit of infringement, a fair dealing with musical work for the purposes of criticism or review of that work, as the use of the copyright work was not for criticism or review of the work but to enhance the defendant's programs. 4. The plaintiff had proved that it was the assignee of the copyright vide assignment deeds and the defendant was broadcasting the works in which plaintiff had the copyright assignment without any license. 5. The electronic evidence produced by the plaintiff was admissible in evidence in view of the decision of the Supreme Court in State (NCT of Delhi ) v. Navjot Sandhu, (2005) 11 SCC 600 and the affidavit of PW-2 satisfying the requirement laid down under Section 65B of the Indian Evidence Act. 6. The plaintiff was entitled to the relief of permanent injunction against the defendant. 7. The plaintiff was entitled to compensatory damages for the infringement of its copyright. 8. The plaintiff was not entitled to punitive damages as it had led no evidence to prove the same.
Issues: 1. Whether the suit is not maintainable for non-compliance with Section 61 of the Copyright Act? 2. Whether the defendants act of broadcasting the plaintiff's repertoire on their channel without licence amounts to infringement of the plaintiff's copyright? 3. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants? 4. Whether the plaintiff is entitled to damages and, if so, to what extent? 5. Whether the defendants use of the plaintiff's copyright works falls under Section 52 (1) (a) (ii) of the Copyright Act? 6. Whether the defendants use of the plaintiff's copyright works falls under Section 39 of the Copyright Act?
Ratio Decidendi: 1. The assignment deeds executed in favour of the plaintiff granted it the exclusive right to make or authorize the making the copies of any sound recordings and the underlying Literary and Musical works together with all right of production/reproduction, recording/re-recording, communication to public (including through television and satellite), synchronization, publication, hiring, renting, performing in public and publishing the Contract Works/Contract Recordings in part or whole by whatever means (present/future) either alone or together with any other recordings of any other film and to make Mobile and Digital Contents. 2. Section 61(1) of the Copyright Act, 1957 is applicable to a licensee of the copyright and has no application to an assignee of the copyright who on assignment becomes the owner of the copyright work. 3. The use of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research is not an infringement of copyright under Section 39 of the Copyright Act, 1957. 4. A fair dealing with any work, not being a computer programme, for the purposes of criticism or review, whether of that work or of any other work, does not constitute an infringement of copyright under Section 52(1)(a)(ii) of the Copyright Act, 1957.
Final Decision: The suit was decreed in favour of the plaintiff and against the defendant directing a permanent injunction in terms of prayer (i) of the plaint. The compensatory damages were fixed at Rs. 21 lakhs to be paid by the defendant to the plaintiff. Cost of Rs. 22,900/- as deposited for Court fees was also awarded in favour of plaintiff and against the defendant.
Mukta Gupta, J.
Plaintiff filed the present suit inter alia seeking a decree of permanent injunction restraining the defendants, their officers, servants, agents and representatives from recording, distributing, broadcasting or otherwise publishing or in any other way exploiting any films, sound recordings, music, lyrics, in the plaintiff's repertoire or doing any other act that would lead to infringement of Plaintiff's copyright; an order for rendition of accounts and delivery of the infringing articles, damages and costs.
2. In the suit the plaintiff pleaded that it was established as a private limited company in 1983 and became a deemed public limited company under the Companies Act in the year 1988-89. Plaintiff is engaged in the business of manufacturing and marketing audio cassettes, video cassettes (blank and recorded), compact discs (CDs), televisions, two-in-ones, tape recorders, CD players, fans, mineral water, etc. Plaintiff is a repertoire of the cinematograph films and sound recording is one of its most precious assets. Plaintiff acquired copyright in all the literary, musical and other works which it commissions and manages, through assignments from the authors or other prior owners of copyright in the same. Further, as producer thereof the plaintiff is itself the corporate author of and the first owner of the copyright in those sound recordings and audio visual works (cinematograph films) which the plaintiff itself produces. Plaintiff also gives licenses to other broadcasting organizations for the use of works in which it enjoys copyright. Thus number of competing television news channel companies have entered into license agreements with the plaintiff.
3. As per the plaint, defendant No. 1 is a private limited company telecasting through its channel "TV5"and has launched TV5 a 24 hours Telugu News Channel on 2nd October, 2007. Though one of the relatively newer channels, it has gained substantial viewer ship and high TRP as claimed by the defendant on its website. Though the defendant calls its channel a "news channel" in fact it has been engaging in unauthorized use of the plaintiff's copyright works for the purpose of providing entertainment and attracting greater viewership.
4. Plaintiff came to know of the infringement of its copyrights by the defendant in the course of random monitoring of the defendant's broadcasting on a sample basis which is a part of normal activity of the plaintiff. It was revealed that the defendant was broadcasting plaintiff's copyright work without permission/license from the plaintiff. Plaintiff tried to contact the defendant to amicably resolve the matter and sent an email dated 24th April 2009 addressed to Mr. Ramesh Kandula (Executive Director) with copy to Mr. B. Ravindranath (Managing Director) giving specific instances of infringement. However, no response was received resulting in the plaintiff issuing a cease and desist legal notice dated 6th May, 2009.
5. In the written statement filed, defendant stated that none of the assignment deeds filed by the plaintiff to support its claim of ownership and entitlement to grant license to third parties permitted it to exploit the said rights assigned to the plaintiff. Plea was taken that Section 39 of Copy Right Act, 1957 specifically excludes from the ambit of infringement, use of excerpts by a broadcaster for reporting on current events or for review in the process of dissemination of the news. Further, Section 52 (1) (a) (ii) of the Copy Right Act, 1957 also excludes from the ambit of infringement, a fair dealing with musical work for the purposes of criticism or review of that work. It is further stated that the infringing CD's allegedly recorded from the broad caste between 1st June, 2009 to 13th June, 2009 have not been provided to the defendant. Further, even assuming the act of defendant does not fall in the exceptions as noted above, duration of play was between 7 seconds to 25 seconds and thus insignificant in a manne
