O.A.No.1318 of 2008 is filed seeking an order of temporary injunction restraining the respondents and their agents from in any manner communicating any of the musical and literary works of the members of the applicants in the form of broadcast on their private FM Radio Stations. Application No.37 of 2009 is filed by the third respondent seeking to vacate the order of ad interim injunction granted in O.A.No.1318 of 2008.

2. The applicant/plaintiff is a Co-operative Society registered under section 33 of the Copyright Act, 1957. The applicant was permitted to carry on business in musical and literary works. The Government of India through the Registrar of Copyrights has issued to the applicant a certificate of registration. The respondents are engaged in the business of broadcasting private FM (Frequency Modulation) Radio Station in the city of Chennai in the name of Chennai Live 104.8 FM. The applicant is affiliated to 194 World Societies of authors and composers. The members of the applicant comprised of authors and composers and publishers of Indian Musical and Literary works have executed deeds of assignment assigning their public performing rights in respect of their musical work. The owners of copyright in musical and literary work in respect of a recorded song are entitled to receive royalty as and when the sound recording is communicated to the members of the public. The applicant has also been authorised to grant licence and collect royalties and licence fee on behalf of its members for use and exploitation of the copyrights by means of broadcast, telecast or public performance to the public at large.

3. It is alleged by the applicant that the respondents have started broadcasting the recorded songs on their FM Radio Stations in respect of which the members of the applicant owned copyright in relation to musical and literary work. The respondents cannot use or exploit the copyrights of the members without duly obtaining licence from the applicant paying necessary licence fee/royalty for such use and exploitation. Unless the respondents are restrained from broadcasting any of the music and literary works of the members of the applicant in the form of broadcast, the applicant would suffer loss, harm and injury, it is further alleged.

4. It is the contention of the third respondent that the third respondent had already entered into an agreement dated 6. 2008 with Phonographic Performance Limited (PPL), a copyright Society registered under section 33(2) of the Copyright Act, 1957. PPL has been duly assigned the rights by the first owners of the copyright of music being played by Chennai Live. The third respondent also entered into private agreements with other owners of copyrights who are not members of PPL. The applicant has been granted licence to issue licence for performing rights only. But, the respondent is not in the business of performing music. Therefore, the respondent is not required to enter into any agreement with the applicant. The producer Companies mentioned in the list produced by the applicant are also members of the registered Cooperative Society viz., PPL which has already granted broadcasting licence to the respondents to conduct its business. Therefore, the third respondent would submit that grave prejudice will be caused to the respondent if the ad interim order of injunction already granted remains in force.

5. The point that arises for determination is whether the applicant has established a prima facie case that the third respondent has got no right to broadcast the songs through its FM Station with the agreement of assignment it has entered into with Phonographic Performance Limited (PPL) without obtaining separate licence from Indian Performance Rights Limited (IPRS).

6. Learned Senior Counsel appearing for the applicant would submit that the literary and musical work is a separate class of work from that of sound recording. Whereas learned counsel appearing for the third responden