Delhi District Court
M/S. Super Cassettes Industries Pvt. ... vs M/S. Raghunathpur Cable Network on 20 October, 2018
IN THE COURT OF SHRI M. P. SINGH
ADDITIONAL DISTRICT JUDGE03 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS No. 47/2017
New CS No. 3222/17
M/s. Super Cassettes Industries Pvt. Ltd.
E2/16, White House, Ansari Road,
Daryaganj, New Delhi110002. ..............Plaintiff
VERSUS
M/s. Raghunathpur Cable Network
Ward No. 3, Maligoli Para
Raghunathpur, Puruliya 723101
West Bengal .............Defendant
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMNT OF COPYRIGHT, MANDATORY INJUNCTION,
DAMAGES & FOR RENDITION OF ACCOUNTS
Date of Institution of Suit : 18.01.2017
Date of pronouncement of judgment : 20.10.2018
JUDGMENT
1. The Plaintiff, a Private Limited Company incorporated under the Companies Act, through its authorized representative has filed the present suit for permanent injunction for restraining infringement CS No. 47/2017 New CS No. 3222/17 Page No. 1 of 12 of copyright, mandatory injunction, damages and for rendition of accounts against the defendant.
2. Enumerated in brief the facts of the case of the plaintiff are as follows: Plaintiff is one of India's largest and most reputed music companies. Plaintiff and its label 'TSeries' is highly regarded and considered as one of the top names in the film and music industry. Plaintiff has significantly expanded its music business to include production and marketing of video cassettes, compact discs (CDs) both blank and prerecorded, Television sets, Two in one, Tape recorders, CD Players etc all sold under the brand 'TSeries'. Plaintiff has made a significant contribution to the cultural wealth of the country by giving opportunities to new artists and performers on a scale which did not exist before and by widening the range of quality music and audio visual entertainment available to the general public at affordable price. Plaintiff has launched and /or promoted some of the biggest and most talented names in the music and film industry including Anuradha Paudwal, Sonu Nigam, Udit Narayan, Kumar Sanu, Abhijit, Hansraj Hans, Harbhajan Mann, Adnan Sami, Sadhna Sargam, Bela Sulakhe, Surjit Bindrakhiya, Satvinder Bitti, Bhagawant Mann, Shankar Sawhney, Kumar Nishu, Guddu Rangila, Manoj Tiwari, Bharat Sharma Vyas, Madan Rai, Kalpana Potwariya, Radheyshyam Rasia, Amrita Virk and Babbu Mann etc. CS No. 47/2017 New CS No. 3222/17 Page No. 2 of 12
3. Plaintiff has also launched and/or promoted many song writers, music directors and video Directors such as Samir, Durga, Vinay Bihari, Nikhil Vinay, Dabbu Malik, Harry Anand etc. In addition, plaintiff has also launched and/or promoted film and video artistes such as Priyanshu, Himanshu, Sandilli, Shefali Jariwala and Sanober Kabir. Plaintiff Company has also been involved in producing one of the biggest blockbuster hits in Bollywood cinema in recent year including Aashiqu2, Yaariyan, Baby, Airlift, Sanam Re etc.
4. Plaintiff acquires copyright in all literary, musical and other works which it commissions and manages by way of assignments from the authors and /or other prior owners of copyright in the same. As on date, plaintiff's label TSeries has over 20,000 Hindi film and nonfilms songs as well as more than 50,000 songs in regional languages to its credit. This vast repertoire adds up to tens of thousands of hours of invaluable music. Plaintiff, inter alia, owns copyrights in the songs "Sooraj Ki Baaho" from the movie "Zindagi Na Milegi Dobara", in the song "Phir Mohabbat" from the movie "Murder2", the song "Elementary" from the album "Elementary", in the song, "One Bottle Down" of the singer Yo Yo Honey Singh etc. Plaintiff's repertoire is easily identified by the public, since all the CDs/ DVDs/VCDs prominently display the logo of the plaintiff's CS No. 47/2017 New CS No. 3222/17 Page No. 3 of 12 label "TSeries", each containing a notice brining to the attention of the public at large that the plaintiff has made the sound/video recording and that the plaintiff owns the copyright in the said work(s).
5. Plaintiff has robust and well defined business licensing policy enabling 3rd party organizations, including television broadcasting organization, FM Radio Channels and Cable Television Operators to apply for and obtain licence for use of its copyrighted works comprising of cinematographic films, sound recordings and underlying musical and/ or literary works. Plaintiff actively pursues such licensing policy and licenses are routinely sought and granted by it for its copyrighted work(s) including songs, audio visual recordings etc. Plaintiff grants license for even small portions/ brief exacts of its works, depending on the requirement of the license and terms of agreement between the parties. Plaintiff has executed various licensing agreements with Television Broadcasting Organizations such Multi Screen Media Pvt. Ltd for its channels including Sony TV, SAB TV etc.; Star India Pvt. Ltd. for its channels STAR TV, STAR NEWS; Viacom Media Pvt. Ltd. for its channel Colors; Zee Entertainment Enterprises Ltd for its all its network of the channels including ZEE TV and ZEE News. Plaintiff also grants licenses to Multi System Operators (MSO) and /Cable Television Operators who operate their own cable CS No. 47/2017 New CS No. 3222/17 Page No. 4 of 12 network channels. M/s Digital Entertainment Network Pvt. Ltd. (DEN) and Hathway Network Pvt. Ltd. amongst and other cable operators have licensing agreements with the plaintiff and have obtained licenses from the plaintiff for use of various copyrighted works etc for their Ground Cable Network. To keep a track of unauthorized infringing users, plaintiff caries out random monitoring of television channels. As and when instances of infringements are brought to plaintiff's notice, usually, plaintiff first sends a notice requiring the operator in question to immediately stop using infringing materials and to obtain a license from it. However, in case infringement continues, plaintiff then proceeds to avail the legal remedies against the infringing users. Plaintiff has also cited some of the decisions of the Hon'ble High Court, passed against the Multi System Operators/Ground Cable Network Operators found to be infringing the plaintiff's copyright work in paragraph 17 of the plaint.
6. The defendant, located in Puruliya, West Bengal is a Ground Cable Operator and carries on business of providing cable television services under the name and logo/picture of CABLE TV R. N. PUR. Defendant has operations throughout India including State of West Bengal. It has about 10,000 connections in West Bengal. On its cable network, defendant provides services such as cable advertising and nonstop entertainment where it makes extensive CS No. 47/2017 New CS No. 3222/17 Page No. 5 of 12 use of Hindi songs and film extracts. Defendant even shows cinematograph films/movies which is mostly pirated. The defendant is doing so without obtaining a license from the plaintiff. The business model defendant is to operate use plaintiff's copyrighted works to enhance viewership among its subscribers and at the same time increase revenue generated though advertising. Such unlicensed and unauthorized use of the plaintiff's works by defendant on its cable television network amounts to an infringement of the plaintiff's copyright, which is causing enormous loss of revenue to the plaintiff and resulting in generation of revenue for the defendant at the expense of plaintiff's statutory rights.
7. It was in the month of July, 2016 that plaintiff obtained information that the defendant was utilizing and broadcasting musical and audiovisual works of the plaintiff to the public unauthorizedly and without having obtained license or permission from the plaintiff to use such works or communicate them to the public. In order to find out about the extent of infringement by the defendant, one Mohit Sharma, on plaintiff's instructions, on 24.07.2017 and 25.07.2016 made recording of illegal news by the defendant. A cue sheet was also prepared on the basis of video recording clearly showing the film/albums being played by the CS No. 47/2017 New CS No. 3222/17 Page No. 6 of 12 defendant and their durations and also whether such works are owned by the plaintiff or not.
8. It is averred that such an action of the defendant amount to infringement of copyright of the plaintiff in the said songs. Plaintiff issued a letter dated 05.09.2016 to the defendant thereby informing Public Performance Licensing Scheme of the plaintiff under the name TSEIRES Public Performance License (TPPL) and also that the license must be obtained within seven days from receipt of letter. Despite receipt of said letter, defendant neither approached the plaintiff to obtain a Cable license to broadcast work of the plaintiff nor stopped using the plaintiff's copyrighted works. Therefore, plaintiff issued legal notice dated 27.09.2016 to the defendant, which was served upon the defendant but all in vain and defendant is actively infringing the copyrighted works of plaintiff. Action of defendant is allegedly causing severe and irreparable damage to the plaintiff and it is suffering direct loss on account of nonpayment of license fee by the defendant for the entire duration during which the defendant had broadcast the plaintiff's work in an unauthorized manner. Therefore present suit has been filed.
9. Summons of the suit was served upon defendant. Defendant appeared through its counsel Anuj Pal on 05.08.2017. Defendant CS No. 47/2017 New CS No. 3222/17 Page No. 7 of 12 did not file its written statement. Defendant suffered the proceedings ex parte vide order 09.10.2017.
10. In evidence, plaintiff examined its Authorized Representative Sh. Anil Maini as PW1 vide affidavit Ex.PW1/A. PW1 has relied upon the following documents viz (1) Board Resolution as Ex.PW1/1(OSR), (2) Internet generated copy of Certificate of Incorporation as Ex.PW1/2, (3) Internet generated copies of orders passed by Hon'ble High Court granting an ex parte interim injunction against various defendants as Ex.PW1/3 (Colly.), (4) Assignment Deed / Copyright Certificate(s) as Ex.PW1/4(a) (OSR) dt 01.10.2003 and Ex.PW1/4(b) (OSR)(Colly) dt 05.08.2014, (5) DVD containing a recording of the broadcast as Ex.PW1/5, (6) Cue Sheet as Ex.PW1/6, (7) Letter dated 05.09.2016 as Ex.PW1/7, (8) Proof of dispatch of this letter as Ex.PW1/8, (9) Proof of delivery of this letter (tracking report dt 12.09.2016) as Ex.PW1/9, (10) Legal notice dt 27.09.2016 as Ex.PW1/10, (11) Proof of dispatch of the above legal notice as Ex.PW1/11, (12) Print out of the tracking report of the letter dt 08.10.2016 as Ex.PW1/12.
11. Plaintiff also examined Mr. Vikash Bari, as PW2 vide affidavit Ex.PW2/A. PW2 has relied upon documents already CS No. 47/2017 New CS No. 3222/17 Page No. 8 of 12 exhibited as Ex.PW1/5 (the DVD containing the songs infringed by defendant company) and the Cue Sheet Ex.PW1/6.
12. Arguments heard. Record perused.
13. Having regard to the submissions made and taking into consideration the fact that plaintiff's ex parte evidence remains unrebutted and unchallenged. It is established that the infringing activities of defendant continued unabated and thus the plaintiff was left with no alternative but to file the present suit. The record bears out that the said infringing broadcasts have been confirmed through the recordings made on 24.07.2016 and 25.07.2016 and through the cue sheets Ex. PW1/6. On a sample basis, the plaintiff was able to detect various instances of infringement by the defendant on programs broadcasted on its cable network under the logo of CABLE TV R. N. PUR wherein sound recordings, cinematograph plaintiff's repertoire of audio/ video songs were communicated to the public, without the plaintiff's permission or license.
14. It is also proved that the plaintiff company is the owner of copyright of the works broadcast by the defendant on its channel i.e. CABLE TV R. N. PUR as detected by plaintiff's official(s). The copies of sample Assignment Deeds which illustrate that the plaintiff company is the exclusive copyright owner of the said works CS No. 47/2017 New CS No. 3222/17 Page No. 9 of 12 being exploited by the defendant on its channel during the aforementioned periods has been placed on record.
15. The defendant has, thus, caused the plaintiff company substantial loss and damage on account of continuous infringement of its copyright and the same is disrupting plaintiff's business, which depends partly on license income from the use of its copyrighted works. It is established on record that the plaintiff invests massive amounts to acquire copyrights from the authors and owner thereof and the same runs into many crores of rupess. It is stated that other media and entertainment channels which regularly obtain license, the fee runs into several lakhs of rupees. The usage of the plaintiff company's repertoire by the defendant was detected and has been proved; therefore, damages are claimed in the suit. The counsel for the plaintiff has submitted that the damages claimed by the plaintiff company are nominal as compared to the license fees actually paid by other broadcasting organizations.
16. With regard to the relief of damages as claimed by the plaintiff Hon'ble High Court in various cases filed by the present plaintiff, has previously granted both exemplary and punitive damages against infringers in ex parte matters of similar nature.
CS No. 47/2017 New CS No. 3222/17 Page No. 10 of 1217. In Super Cassettes Industries Pvt. Ltd. Vs Ragany Cable TV Pvt. Ltd. CS (COMM) 1222/2016, dated 22.05.2017, Hob'ble High Court granted damages of Rs. 21 Lakhs. Similar damages were granted in case titled Super Cassettes Industries Ltd. CS (OS) 1882/2014, dated 16.05.2017 and Super Cassettes Industries Ltd. Vs TG Angles India Pvt. Ltd., dated 20.04.2017, by Hon'ble High Court.
18. Accordingly, in light of the aforesaid judgments, this court is of the opinion that the damages in the present suit be awarded at Rs. 20,00,000/ (Rupees Twenty Lakhs only).
19. In view of the facts of the present case, this Court is of the opinion that in the present case Rs. 20,00,000/ (Rupees Twenty Lakhs only) as punitive damages be granted in favour of the plaintiff and against the defendant. It is ordered accordingly.
20. Accordingly, the present suit is decreed as under:
a) Decree of the permanent injunction is passed in favour of the plaintiff and against the defendant thereby restraining the defendant, their officers, servants, agents, partners and representatives and all other acting for an on their behalf from either engaging themselves or from authorizing the recording, distributing, broadcasting, public performances, 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 CS No. 47/2017 New CS No. 3222/17 Page No. 11 of 12 other works or part thereof throughout India, that is owned by the plaintiff including all works whereof plaintiff has copyright under section 52A of the Copyright Act, 1957;
b) Decree of mandatory injunction is passed in favour of the plaintiff and against the defendant directing the defendant to deliver and hand over to the plaintiff or its authorized representatives, all infringing tapes, copies and negatives etc bearing the copyrighted materials of the plaintiff;
c) Decree is also passed in favour of the plaintiff and against the defendant in sum of Rs. 20,00,000/ (Rupees Twenty Lakhs only) as punitive damages, payable by the defendant to the plaintiff;
d) Cost of the suit is also awarded in favour of the plaintiff.
21. Decree Sheet be prepared accordingly. File be consigned to the Record Room.
Digitally
signed by
MURARI
MURARI PRASAD
PRASAD SINGH
Announced in the open Court
Date:
SINGH 2018.10.20
16:59:59
On 20.10.2018 +0530
M.P. SINGH
ADJ03, (CENTRAL)
TIS HAZARI COURTS
DELHI
CS No. 47/2017
New CS No. 3222/17 Page No. 12 of 12