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Super Cassettes Industries Private Limited v/s Good Media News Pvt. Ltd.

    CS(COMM) No. 1161 of 2016

    Decided On, 02 April 2018

    At, High Court of Delhi


    For the Appellant: K.K. Khetan, Advocate. For the Respondent: None.

Judgment Text

1. Present suit has been filed for permanent injunction restraining infringement of copyright, mandatory injunction, damages and rendition of accounts. The prayers made in the plaint are reproduced hereinbelow:-

"i. Pass an order of permanent injunction restraining the Defendant, their officers, servants, agents, partners and representatives and all others acting for and on their behalf from either engaging in themselves or from authorizing the recording, distributing, broadcasting, public performance/communication to the public or in any other way exploiting the cinematograph films, sound recordings and/or literary works (lyrics) and Musical works (musical composition) or other work or part thereof throughout India, that is owned by the Plaintiff including all works thereon the Plaintiff has shown its copyright under section 52A of the Copyright Act or doing any other act that would lead to infringement of the Plaintiff's copyright;

ii. Pass an order for rendition of accounts of profits directly or indirectly earned by the Defendant, their officers, servants, agents, partners and representatives and all others acting for and on their behalf, from their infringing activities and unlawful conduct throughout India, and a decree for the amount so found due to be passed in favour of the Plaintiff;

iii. Pass an order of mandatory injunction directing the Defendant to deliver and hand over to the Plaintiff or its authorized representative, all infringing tapes, copies and negatives, etc. bearing the copyrighted materials of the Plaintiff;

iv. Pass an order directing the Defendants to pay to the Plaintiff damages to the tune of Rs. 1,00,01,000/- towards damages for acts of infringement committed till date pendente lite and future interest at rate of 18% p. a. till payment of decretal amount; and further direct the Defendant to pay future damages alongwith interest thereupon at the rate of Rs. 1,00,000/- per week from the date of filing of the suit till the time the Defendant stops infringing activities or such amount which the Hon'ble Court may determine;

v. award costs of the present suit to the Plaintiff;

vi. Pass such other order as this Hon'ble Court deems fit and proper in the facts and circumstance of this case.

2. On 26th August, 2016, this Court granted an ex-parte ad interim injunction in favour of the plaintiff and against the defendant. The relevant portion of the said order is reproduced hereinbelow:-

"15. Accordingly, the Defendant, their officers, servants, agents and representatives and all others acting for and on their behalf are restrained from authorizing, recording, distributing, broadcasting, public performance / communication to the public or in any other way exploiting the cinematograph films, sound recordings and /or literary works (lyrics), musical works (musical composition) or other works that are owned by the Plaintiff or in respect of which the Plaintiff has a copyright, till the next date of hearing.

16. Compliance of provisions of Order XXXIX Rule 3 of the CPC be done within one week from today. "

3. Since defendant did not enter appearance despite service, it was proceeded ex parte vide order dated 29th January, 2018 and the ex parte interim injunction was confirmed till the disposal of the suit.

4. It is the plaintiff's case that it is one of the largest and most reputed music companies in the country and is the owner of a large repertoire of copyrighted works comprising cinematographic films, sound recordings etc. operating under the brand "T-SERIES".

5. It is further stated that plaintiff's business also includes giving licences to various organizations such as Broadcasting Organizations, Television Channels, FM Radio Stations, Multi-System Operators (MSO) and Cable TV Operators etc. for the use of its copyrighted works.

6. Mr. K. K. Khetan, learned counsel for the plaintiff states that the defendant-Good Media New Pvt. Ltd. is one of the largest ground cable network provider based in Himachal Pradesh and is providing Cable Television services under the logo "GOOD MEDIA NEWS PVT. LTD. " to various subscribers having operation in the State of Himachal Pradesh. He further states that the defendant provides services such as Non-Stop Music, Non Stop Entertainment and NonStop Religious Bhajans wherein Hindi songs from commercial films, private albums as well as Regional songs, Religious Bhajans and film extracts are broadcast extensively and freely.

7. He states that defendant had earlier obtained a TPPL licence for broadcasting works of the plaintiff for a period of three months from 15th March, 2015 to 14th June, 2015 and the defendant has not taken any steps for renewal of the licence and continued to use and commercially exploit various works of the plaintiff. He states that while obtaining the said licence the defendant declared that it had only 806 subscribers/connections. However, the plaintiff has discovered that the defendant has more than 60,000 connections. He further states that on coming to know of the aforesaid facts, the plaintiff wrote a letter dated 14th November, 2015 requiring the defendant to obtain a renewed licence for actual number of connections on and from 15th June, 2015 as well as follow up emails dated 19th December, 2015 and 04th January, 2016 and follow up letters dated 15th March, 2016 and 18th May, 2016. He states that the plaintiff issued a legal notice dated 01st June, 2016, requiring the defendant to cease and desist from using the plaintiff's work without first obtaining a licence and requesting payment of damages. However, no reply was received.

8. The plaintiff has filed its evidence by way of two affidavits. One affidavit of PW-1 Mr. Anil Maini and another of PW-2 Mr. Mohit Sharma.

9. Pw-1 has relied upon various decisions regarding the plaintiff's copyright works as Ex. PW-1/4. PW-1 has further proved the copies of copyright certificates and assignment deeds illustrating that the plaintiff is the exclusive copyright owner of the aforementioned copyrighted works as Ex. PW-1/9(Colly) to Ex. PW-1/11 (Colly). The letters dated 14th November, 2015 and 15th March, 2016 have been proved as Ex. PW1/5(Colly) and Ex. PW1/7(Colly), respectively. The emails dated 19th December, 2015 and 04th January, 2016 have been proved as Ex. PW1/6 (Colly) and the legal notice dated 01st June, 2016 has been proved as Ex. PW-1/3 (Colly).

10. Pw-1 in his affidavit has stated ". . . it is known that the Defendant in the present suit has 60,000 subscriptions as this was alleged in the cease and desist notice dated 01. 06. 2016 addressed to the Defendant. Since the defendant chose not to reply to the cease and desist notice, an adverse inference regarding the admission of the contents by the Defendant should be drawn as the same have gone unrebutted and uncontroverted by the Defendant. I say that the subscription rate of the Plaintiff per account is charged at INR 18 per month. Therefore, I further state that the losses for the entire period of Eleven (11) months to the Plaintiff would amount as : 60,000 (Subscriptions) x 18 (Per month license fee) x 11 (No. of months) = INR 1,18,80,000/- (One Crore Eighteen Lakhs Eight Thousand).

The plaintiff restrict its claim for damages to Rs. 1,00,00,000/- as claimed in the plaint. "

11. Pw-2 has proved the CD/DVD recordings of the infringing broadcasts made on 21 st February, 2016 along with cue-sheets containing details of infringing broadcasts such as time of recording, film/album belonging to the plaintiff's repertoire, duration of recording and reading along with the screenshots of the CD recordings as Ex. PW-2/1 and Ex. PW-2/2. Further, screenshots have been exhibited as Ex. PW-2/3 (Colly). PW-2 has also proved letters dated 15th March, 2016 and 18th March, 2016 issued by him to the defendant as Ex. PW2/4(Colly).

12. Having heard learned counsel for the plaintiff and having perused the ex parte evidence as well as documents placed on record, this Court is of the opinion that plaintiff has proved the facts stated in the plaint and has also exhibited the relevant documents in support of its case.

13. A bare perusal of the screenshot of the infringing recording (Ex. PW-2/3) shows that in most songs, the logo of the plaintiff "TSERIES" is visible on the top-right/left corner of the screen. However, in a few songs, the T-Series logo is not entirely visible as it is hidden behind the logo of the defendant. This proves that the defendant was aware that the audio visual work broadcast on its network belonged to the plaintiff. A perusal of the cue sheet also shows that the defendant has amongst others infringed the sound recordings, cinematograph films and underlying literary and musical works belonging to plaintiff's repertoire of songs "Jagdambe Jagdambe Sherowali' from the album Jai Tuljamaiyya, the song 'Thanda Sheetal Maiyya Ja' from the album Thanda Sheetal Maiyya Ji, the song 'Om Jai Lakshmi Ramanna' from the alubim Aairiyan, the son 'Shera wali Ke Lakhon Bhakt' from the album Lal Lal Chunari, the songs 'Nacho Gao Bhakto Aaj Hai', 'Ganpati Ji Ganesh Nu Manaiya' and 'Main Tere Bin Kamli Hoyee' from the album Aaj Hai Jagraata, 'Sajna ve Sun' from the album 'Rangla Himachal' etc.

14. Since the plaintiff's evidence has gone unrebutted, said evidence is accepted as true and correct. In the opinion of this Court, the defendant has deliberately stayed away from this Court's proceeding with a view to frustrate the plaintiff's claim for damages. The said act is unjustified.

15. As the defendant has broadcast the plaintiff's video

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songs without any license, this Court is further of the opinion that defendant has infringed the plaintiff's rights under Sections 14(a)(iii), 14a(iv), 14(d)(iii) and 14(e)(iii) read with Section 51 of the Copyright Act, 1957. 16. As the plaintiff in his evidence has stated that the defendant had 60,000 subscriptions and the plaintiff used to charge licence fee of Rs. 18/- per connection per household per month plus applicable taxes, the plaintiff is held entitled to compensation to the extent of Rs. 1,18,80,000/- (60,000 subscriptions x 11 months x Rs. 18/-). However, as the plaintiff has prayed for decree of lesser amount of Rs. 1,00,00,000/- plaintiff is held entitled Rs. 1,00,00,000/-. 17. Consequently, present suit is decreed in accordance with prayer (i) of the plaint as well as actual costs incurred by the plaintiff. The costs shall amongst others include the lawyer's fees as well as the amount spent on Court-fees. The plaintiff is also held entitled to compensation of Rs. 1,00,00,000/-. Registry is directed to prepare a decree sheet accordingly.