Delhi High Court - Orders
Phonographic Performance Limited vs First Fiddle F And B Private Limited & Anr on 29 April, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 283/2022
PHONOGRAPHIC PERFORMANCE LIMITED ..... Plaintiff
Through: Mr. Chander M. Lall, Senior Advocate
with Mr. Ankur Sangal, Ms. Sucheta Roy and
Mr.Raghu Vinayak Sinha, Advocates
versus
FIRST FIDDLE F AND B PRIVATE
LIMITED & ANR. ..... Defendants
Through: None
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 29.04.2022 I.A. 6641/2022 (Exemption)
1. Subject to the Plaintiff filing originals, clearer copies and documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.
2. Application is allowed and disposed of.
I.A. 6639/2022 (Additional Documents)
3. Present application has been preferred on behalf of the Plaintiff seeking leave to file additional documents under Order 11 Rule 1(4) CPC.
4. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015.
5. Application is allowed and disposed of.
Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 1 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33I.A. 6638/2022 (seeking exemption from undergoing pre-institution mediation proceedings)
6. For the reasons stated in the application, the requirement of pre- institution mediation is dispensed with.
7. Accordingly, the application is allowed and disposed of. I.A. 6640/2022 (seeking enlargement of time for filing court fees)
8. For the reasons stated in the application, Plaintiff is permitted to file requisite Court Fees within a period of two weeks from today.
9. Application is allowed and disposed of.
I.A. 6642/2022 (to file video graphic evidence by way of a pen drive)
10. By way of the present application, Plaintiff seeks leave to file a Pen Drive comprising of videographic evidence.
11. For the reasons stated in the application, the same is allowed.
12. Plaintiff is permitted to file the aforementioned Pen Drive within a period of two weeks from today.
CS(COMM) 283/2022
13. Let plaint be registered as a suit.
14. Upon filing of process fee, issue summons to the Defendants, through all permissible modes, returnable on 25.07.2022. Summons shall state that the written statement shall be filed by the Defendants within 30 days from the receipt of summons. Along with the written statement, Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff.
15. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by the Defendants, shall be filed by the Plaintiff.
Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 2 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:3316. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
17. List before the Joint Registrar on 25.07.2022.
18. List before the Court on 07.09.2022.
I.A. 6637/2022 (under Order 39 Rules 1 and 2 of CPC)
19. Present application has been preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure 1908 for grant of ex-parte ad-interim injunction.
20. Issue notice to the Defendants through all prescribed modes, returnable on 07.09.2022.
21. As averred in the plaint, Plaintiff was incorporated as a Company limited by guarantee under the Companies Act in the year 1941. Plaintiff is one of the oldest collecting organizations in the world and was originally known as Indian Phonographic Industry (IPI). Plaintiff is engaged in the business of issuance of licences for public performance/communication to the public of sound recordings, on the basis of exclusive rights granted to it by its member record labels i.e., owners of Copyrights in sound recordings.
22. It is further averred that Plaintiff owns and/or controls the public performance rights of 350+ music labels, with more than 4.5 million international and domestic sound recordings. Being the oldest and the largest collecting society in the country, Plaintiff represents about 80% to 90% of sound recordings ever created in the country. Plaintiff is stated to be the owner of Copyright in the sound recordings in its repertoire on the basis of assignment of the relevant Copyrights in its favour by its several member companies, who have executed an Assignment Deed under Section 18 of the Copyright Act, 1957 (hereinafter referred to as the 'Act'), whereby they Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 3 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33 have assigned the public performance rights of the sound recordings to the Plaintiff.
23. It is further averred that Plaintiff represents a large share of the total sound recordings in International and Domestic Music and represents some of the world's and India's largest record labels including Aditya Music, Lahari Music, Sony Music Entertainment, Speed Records, T-Series, Universal Music, Warner Music and also has a strong regional representation. There has been no break in the Plaintiff's licensing activities since its inception in 1941. Between 1996 and 2014, Plaintiff was a registered Copyright Society under Section 33 of the Act and post the amendment to the said Act, it has re-registered itself since 2014 and is conducting the business of licensing under Section 33(1) of the Act. Plaintiff issues licenses under Section 30 of the Act for communication/public performance and grants licenses authorizing the use of its entire repertoire on as-is-where-is basis to its licensees.
24. It is averred that the list of sound recordings in which the Plaintiff has Copyright is available on Plaintiff's website https://www.pplindia.org/songs, which provides express notice of Plaintiff's rights in the sound recordings to any legitimate user. Plaintiff serves a useful public utility of acting as a "single window" to various parties seeking to take a license for authorised use of sound recordings and brings together the Copyright owners and users across various parts of India, for better convenience in administration. Plaintiff, on behalf of its members, also actively prosecutes the violators of the Copyright of its members in civil as well as criminal courts as per the remedies available under the Act.
25. It is the case of the Plaintiff that Defendants are in the business of Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 4 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33 running various restaurants and bars in the casual dining sector, names of which along with their locations are enumerated in para 14 of the plaint. Recently on 22.03.2022, when the Plaintiff's representatives visited the premises of two of the restaurants being run by the Defendants in New Delhi, namely 'Dragonfly' and 'Plum Aerocity', Plaintiff got to know that Defendants were exploiting the sound recordings of the Plaintiff in the said premises, without taking any license from the Plaintiff. Plaintiff, in the years 2019 and 2020, as a general practice informed various restaurants including few restaurants of the Defendants about the Plaintiff's right on its repertoire and requirement to take license for the same, if the restaurants owners were inclined to use Plaintiff's work. Defendants never took any step/action pursuant to the said correspondences. Plaintiff has initiated legal proceedings against individual premises of the Defendants, located inter alia in Mumbai, Lucknow, Agra, Bangalore and injunction orders have been passed by the Courts, details whereof are provided in para 18 of the plaint. Defendants are habitual infringers of the Plaintiff's copyright.
26. Learned Senior Counsel submits that under Section 13(1)(c) of the Act, Copyright subsists throughout India in 'sound recording' and Section 14(e) of the Act provides that for the purposes of this Act 'Copyright' means the exclusive right subject to the provisions of the Act, to do or authorise, in the case of a sound recording, to make any other sound recording embodying it (including storing of it in any medium by electronic or other means), to sell or give on commercial rental or offer for sale any copy of the sound recording and/or to communicate the sound recording to the public. Thus, it is contended that any communication to the public/public performance of the sound recordings, forming a part of Plaintiff's repertoire Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 5 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33 without an appropriate license is an infringement of the copyright under Section 51 of the Act. It is further submitted that all shops and establishments including shopping malls and individual stores are liable for copyright infringement and no distinction can be drawn by the Defendants on the ground that they operate retail stores.
27. It is further contended that by exploiting Plaintiff's Copyrighted works without any license from the Plaintiff, Defendants are infringing the Copyright and this is also negatively impacting Plaintiff's music business and reputation.
28. Having heard the learned Senior Counsel, in my view, Plaintiff has established a prima facie case in its favour for grant of ex-parte ad-interim injunction. Balance of convenience also lies in favour of the Plaintiff and irreparable loss shall be caused to the Plaintiff in case an ex-parte interim injunction is not granted.
29. Accordingly, Defendants, their directors, partners or proprietors, licensees, assignees, officers, servants, agents, representatives, contractors, subsidiaries, franchisees, sister concerns and any other person working for and on behalf of the Defendants are restrained from doing any act including exploitation/use of the Plaintiff's copyrighted works in the repertoire available on Plaintiff's website https://www.pplindia.org/songs in any of the outlets as mentioned below, which amounts to infringement of the Plaintiff's copyright, till the next date of hearing:-
S. No. Name of the Address
Restaurant/Bar
1. Lord of the Drinks G-72, 1st Floor, Outer Circle,
Signature Not Verified
Digitally Signed CS(COMM) 283/2022 Page 6 of 10
By:KAMAL KUMAR
Signing Date:05.05.2022
12:06:33
Connaught Place, New Delhi, Delhi
NCR, Delhi 110001
2. Lord of the Drinks Upper Ground Floor, Epicuria Food Mall, Nehru Place Metro Station, Nehru Place, New Delhi, Delhi NCR, Delhi 110019
3. Lord of the Drinks E-363, Second & Third Floor, Nirman Vihar, Near Preet Vihar, New Delhi 110092
4. Lord of the Drinks First Floor, Unit 235, 236, 237 Gardens Galleria Mall, Sector 38A, Noida 201301
5. Lord of the Drinks 3rd Floor, Trade View Building, Next to Gate 4, Kamala Mills Compound, Senapati Bapat Marg, Lower Parel, Mumbai, Maharashtra 400013
6. Lord of the Drinks Ground Floor, Aver House, New Link Road, Veera Desai Area, Mumbai Veera Desai Area, Mumbai, Maharashtra 400053
7. Lord of the Drinks Orchard Avenue, J M House, Delphi, Wing B, Unit No 5, 1st Floor, Hiranandani Gardens, Mumbai, Maharashtra 400076
8. Lord of the Drinks 1, Mall Road, Kanpur, Uttar Pradesh Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 7 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33 208001
9. Lord of the Drinks 375, 403, 4th Floor, Prince Anwar Shah Road, Kolkata, West Bengal 700068
10. Lord of the Drinks 103, Nungambakkam High Rd, Tirumurthy Nagar, Nungambakkam, Chennai (Madras), Tamil Nadu 600034
11. Lord of the Drinks SCO 23, Sector 26, Chandigarh 160019
12. Plum By Bent Chair 3rd Floor, Trade View Building Gate 4, Utopia City, Pandurang Budhkar Marg, Worli, Mumbai 400013
13. Plum By Bent Chair Ground Floor, Worldmark 2, Aerocity, New Delhi 110037
14. Jlwa Unit 1-5, B 40, Patel Commercial Premises, Opposite Citi Mall, Veera Desai Area, Mumbai 400058
15. Jlwa Plot 1-2-3, Canal Patri, The Mall, Phoolbagh, Kanpur 208001
16. Dragonfly Experience Worldmark 1, Aerocity Access Rd, Delhi Aerocity, New Delhi, Delhi 110037
17. Dragonfly Experience The Orb, Next to J.W, Marriott Sahar, Delhi Andheri (E, Maharashtra 400088
18. The Flying Saucer Cafe Ground Floor, Epicuria Food Mall, Near Nehru Place Metro Station, Nehru Place, New Delhi 110019
19. The Flying Saucer Cafe CTS 608, Plot B10, 2nd Floor, Gopi Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 8 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33 Chamber, Oshiwara Link Road, Opposite City Mall, Andheri Lokhandwala, Andheri West, Mumbai 400047
20. Rocky Star Cocktail Bar 3rd Floor, Trade View Building Gate 4, Utopia City, Pandurang Budhkar Marg, Worli, Mumbai 400013
21. Tamasha 28A, Kasturba Gandhi Marg, Connaught Place, New Delhi 110001
22. Teddy Boy Gastro Bar N-86, 1st Floor, Outer Circle, Connaught Place, New Delhi 110001
23. Lazeez Affaire 6/48, Malcha Marg Market, Chanakyapuri, New Delhi 110021
24. Lazeez Affaire K 12, Outer Circle, Connaught Place, New Delhi 110001
25. Warehouse Cafe SCO 11-12, Ground Floor, Main Market, Sector 29, Gurgaon 122002
26. Warehouse Cafe D 19/20, D Block, Inner Circle, Near Metro Station Gate 3, Connaught Place, New Delhi 110001
27. Open house Cafe C-37, Connaught Place, New Delhi 110001
28. RPM 40, Basant Lok Market, Vasant Vihar, New Delhi 110057
29. Diablo H-5/12, D1, Block D, Kalka Das Marg, Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 9 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33 Mehrauli, New Delhi 110030
30. Diablo Ground Floor, Victoria House, Worli, Mumbai 400013
31. Misosexy Property H 5/3, H 5/4, Second Floor, Kalka Das Marg, Mehrauli, New Delhi 110030
32. Nomimono Upper Ground Floor, Epicuria, Nehru Place, New Delhi 110019
33. Bougie 2nd Floor, Ambawatta One, Kalka Das Marg, Mehrauli, New Delhi 110030
30. Plaintiff shall comply with the provisions of Order 39 Rule 3 CPC within ten days from today.
JYOTI SINGH, J APRIL 29, 2022 yg Signature Not Verified Digitally Signed CS(COMM) 283/2022 Page 10 of 10 By:KAMAL KUMAR Signing Date:05.05.2022 12:06:33