Point of Law: Non-disclosure of documents along with plaint - Documents which are now sought to be filed by the plaintiff were in the power and possession of the plaintiff. The only ground urged for not filing the documents with the plaint is that it was by an inadvertent error.

JUDGMENT :

JAYANT NATH, J.

IA No.6852/2017 & 1414/2020

1. This is an application filed by the plaintiff seeking an ex-parte ad interim injunction to restrain the defendant, its directors, officers etc. from licensing or exploiting in any manner, including through physical formats such as CDs, DVDs, magnetic tapes, pen drives and/or on the internet through their website www.saregama.com or any other websites/software application, the copyrighted works viz. sound recordings (songs) incorporated in various cinematographic films as well as audio visuals of such songs.

2. The accompanying suit is filed by the plaintiff stating that it is carrying on the business of film production, distribution and exhibition under the name and style of ‘RAJ RISHI FILM’. Apart from the film production, distribution and exhibition, the plaintiff is also said to be engaged in the business of acquiring negative rights of various films from different producers which are approximately 250 in number. However, it is stated that the present suit is confined to only infringement caused by the defendant to144 films which are stated in para 2 of the plaint. It is urged that in terms of the agreements of the respective producers/negative right holders, it is only the plaintiff alone who is entitled to deal with the said films and is the copyright holder of the said films.

3. Regarding the defendant, it is stated that they have engaged in the act of piracy/copyright infringement, inasmuch as, it is involved in the unauthorised/unlicensed exploitation/licensing of sound recording as well as audio-visuals of such songs etc. It is stated that the plaintiff having acquired negative rights of such films, it is the plaintiff who alone is the recorded owner of the aforesaid films and is the copyright holder of all the rights flowing from the said films which includes the performing copyrights in its story, songs, music etc. It is stated that the defendant has been misrepresenting itself to be the owner/copyright holder of the sound recordings as well as audio visuals of such songs incorporated in the aforesaid films rights of which exclusively vest with the plaintiff alone. It is further stated that a notice dated 29.04.2017 was sent to the defendant to render accounts of the amount earned by the defendant by usage of composition in musical works and lyrics and other losses were also sought. The defendant sent a reply dated 19.05.2017 denying the stand of the plaintiff.

4. The defendant in the written statement states that the defendant is in the business of acquiring copyright in many sound recordings and literary, musical and dramatic works. The defendant possesses one of the richest catalogues of Hindi and other Indian language film and non-film music, especially old film soundtracks. It is stated that the plaintiff‘s rights are limited to assignment of alleged rights in the negatives of the impugned cinematograph films, which are only rights over the source material of the impugned cinematograph films and may extend to the rights of theatrical distribution, satellite broadcasting etc. of the cinematograph films as a whole. On a perusal of the agreements, it is stated that it is evident that the assignment of the rights by the producers/right holders of the impugned cinematograph films to the plaintiff do not extend to the separate right over the sound recordings which are a part of the impugned cinematograph films including the impugned works forming part of the aforesaid cinematograph films. In terms of some of the agreements filed by the plaintiff, the producers/right holders in the impugned cinematograph films have acknowledged the rights of the defendant in the impugned works incorporated in the aforesaid films. The producers have only assigned the right to receive royalties from realisation received from gramophone companies for records, discs, music, cassettes etc. to the plaintiff. No rights in the impugned works themselves have been assigned to the plaintiff.

5.