Delhi District Court
M/S. Super Cassettes Industries Pvt. ... vs Suraj Cable Network / Ajanta Infocom on 30 June, 2020
IN THE COURT OF Ms. GEETANJALI
ADJ 3 (CENTRAL), TIS HAZARI COURTS: DELHI
CS (Comm.) No. 544/2020
M/s. Super Cassettes Industries Pvt. Ltd.
E2/16, White House, Ansari Road,
Daryaganj, New Delhi110002. .....Plaintiff
VERSUS
Suraj Cable Network / Ajanta Infocom
Zanjmer - 360440,
DisttRajkot, Gujrat .....Defendant
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMNT OF COPYRIGHT, DAMAGES AND FOR
RENDITION OF ACCOUNTS.
Date of Institution : 06.09.2017
Arguments heard on : 30.06.2020
Date of Judgment : 30.06.2020
EXPARTE JUDGMENT
1.Vide this judgment, I intend to dispose off the suit for permanent restraining infringement of copyright, damages and for rendition of accounts against the defendant.
2. Enumerated in brief, the facts of the case of the plaintiff are as follows: the plaintiff, a private limited company incorporated under the Companies Act, 1956 is one of India's largest and most reputed music companies. The plaintiff and its label 'TSeries' is highly regarded and considered as one of the top names in the film and music industry. It has significantly expanded its music business to include production and CS (Comm.) No. 544/2020 Page No. 1 of 9 marketing of video cassettes, compact discs (CDs) both blank and pre recorded, Television sets, Two in one, Tape recorders, CD Players etc. all sold under the brand 'TSeries'. The 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. It 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 Shani, Kumar Nishu, Guddu Rangila, Manoj Tiwari, Bharat Sharma Vyas, Madan Rai, Kalpana, Radheyshyam Rasia, Amrita Virk and Babbu Mann etc. 2.1 It is further submitted that the 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, the plaintiff has also launched and/or promoted film and video artistes such as Priyanshu, Himanshu, Sandilli, Shefali Jariwala and Sanober Kabir. It has acquired 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. The plaintiff's repertoire is easily identified by the public, since all the CDs/ DVDs/VCDs prominently display the logo of the plaintiff's label "T CS (Comm.) No. 544/2020 Page No. 2 of 9 Series", each containing a notice bringing 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). 2.2 It is further submitted that the 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. The Company 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. It 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. It 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. It also grants licenses to Multi System Operators (MSO) and / or Cable Television Operators who operate their own cable network channels. M/s Digital Entertainment Network Pvt. Ltd. (DEN) and M/s. 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 CS (Comm.) No. 544/2020 Page No. 3 of 9 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. The plaintiff Company has also cited some of the decisions of the Hon'ble High Court, passed against the various cable TV operators found to be infringing the plaintiff's copyright work.
2.3 It is further submitted that the defendant, located in State of Gujarat (Zanjmer) is a Multi System Operator and carries on business of providing cable television services under the logo/ picture of "SCN". The defendant on its cable network under logo/ picture of "SCN" provides services such as cable advertising and nonstop entertainment wherein it makes extensive use of Hindi songs and film extracts. The defendant is stated to be broadcasting / communicating to the public sound recordings, underlying works (lyrics and musical compositions) and audiovisual songs (cinematograph films) and other works of plaintiff through its cable television network under the logo / picture of "SCN" without a valid licence. The business model of the defendant is to operate nonstop music channels to enhance its viewer ship among its subscribers and at the same time increase revenue generated though advertising. Such unlicensed and unauthorized use of the plaintiff's work 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.
3. It was on 22.02.2017 that plaintiff obtained information that the defendant was broadcasting/ communicating to the public plaintiff's CS (Comm.) No. 544/2020 Page No. 4 of 9 copyrighted works unauthorizedly and without having obtained license or permission from the plaintiff. A recording of such infringing materials was made on 22.02.2017 by PW2 Mr. Mohit Sharma. It is averred that the said recording shows that defendant through its cable television network under the logo/ picture of "SCN" was infringing plaintiff's works including audiovideo songs namely "Lets Rock Soniye" from the album in which plaintiff has copyrights, the song "Chalao na naino se" from the movie "Bol Bachan" and the song "Chiggy Wiggy" from the movie "Blue". The recording further shows the defendant's channel logos on top right corner. A cue sheet was also prepared by PW2 Mr. Mohit Sharma on the basis of video recordings clearly showing the songs played and their durations and also whether such songs are owned by the plaintiff or not.
4. It is further averred that such an action of the defendant amounts to infringement of copyright of the plaintiff in the said songs. The plaintiff Company then contacted the defendant through its agent and also issued letter dated 10.04.2017 to the defendant informing Public Performance Licensing Scheme of the plaintiff under the name TSeries Public Performance License (TPPL) and also that the license must be obtained within seven days from receipt of letter. Despite receipt of said letter, the defendant neither approached the plaintiff to obtain a cable license to broadcast work of the plaintiff nor stopped using the plaintiff's copyrighted works. Hence the plaintiff sent a legal notice to the defendant on 10.05.2017 to immediately cease and desist from illegal and unauthorized use of videos/VCDs/DVDs but all in vain and the defendant is actively infringing the copyrighted works of plaintiff. This action of the defendant is allegedly causing severe and irreparable CS (Comm.) No. 544/2020 Page No. 5 of 9 damage to the plaintiff Company 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 broadcasted the plaintiff's work in an unauthorized manner. Therefore present suit has been filed.
5. Summons of the suit was served upon the defendant on 11.08.2018 however none appeared on its behalf nor filed the written statement within the stipulated period and hence was proceeded ex parte on 04.10.2018. Thereafter, matter was fixed for plaintiff's evidence.
6. In plaintiff's evidence, the plaintiff Company has examined two witnesses. Sh. Anil Maini, authorized representative of plaintiff Company was examined as PW1 vide affidavit Ex.PW1/A. He has relied upon documents i.e. Copy of Board Resolution dated 1.3.16 Ex. PW 1/1. (OSR), copyrights certificate of the songs "Ajnabi Shehar", "Lets Rock Soniye" from the album in which the plaintiff have copyrights, Copyrights of the movie "Bol Bachan" for the title songs of the movie "Chalao Na Naino Say Baan" Ex. PW 1/2 (colly) and movie "Blue" for the title songs of the movie "Chiggy Wiggy" is Ex. PW 1/2(Colly); original DVD containing the songs of illegal communication is Ex. PW 1/3; original Cue Sheet (list of songs explained in Ex. PW 1/3) is Ex. PW 1/ 4; office copy of letter dated 10.4.17 Mark PW 1/A; copy of postal receipt Mark PW 1/B; internet tracking report (Proof of delivery of letter dated 10.4.17) is Ex. PW 1/5; office copy of legal notice dated 10.5.17 Ex. PW 1/6; proof of dispatch of the legal notice dated 10.5.17 is Ex. PW 1/7 and internet tracking report (Proof of delivery of legal notice dated 10.5.17) is Ex. PW 1/8. He was not cross examined by the defendant.
CS (Comm.) No. 544/2020 Page No. 6 of 96.1 Mr. Mohit Sharma was examined as PW2 vide affidavit Ex.PW2/A. He has relied upon documents already exhibited as Ex.PW1/3 and Ex.PW1/4. He was not cross examined by the defendant.
7. I have heard the Ld. Counsel for plaintiff and carefully gone through the record.
8. The present suit has been filed for permanent injunction restraining of copyright, damages and for rendition of accounts against the defendant. PW1 has proved his authority to depose vide Power of Attorney Ex. PW1/1. He has also proved the copyright of the movies copyrights certificate of the song "Lets Rock Soniye" from the albums in which the plaintiff have copyrights, movie "Bol Bachan" for the title songs of the movie "Chalao Na Naino Say Baan" and movie "Blue" for the title songs of the movie "Chiggy Wiggy" are Ex. PW 1/2(Colly). He has further established that the infringing activities of the 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 by PW2 Mr. Mohit Sharma has proved recording of such infringing broadcasts on the defendant's channel on a sample basis. 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 "SCN" wherein sound recordings, cinematograph plaintiff's repertoire of audio/ video songs were communicated to the public, without the plaintiff's permission or license.
9. It is also proved that the plaintiff company is the owner of copyright of the works broadcast by the defendant on its cable television network under the logo of "SCN" as detected by PW2.
CS (Comm.) No. 544/2020 Page No. 7 of 910. 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 rupees. It is stated that the license fees paid by other media and entertainment channels 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.
11. 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. 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.
12. 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 Five Lakhs One Thousand only).
13. Accordingly, the present suit is decreed as under: CS (Comm.) No. 544/2020 Page No. 8 of 9
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 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 is also passed in favour of the plaintiff and against the defendant in sum of 20,00,000/ (Rupees Twenty Five Lakhs One Thousand only) as punitive damages, payable by the defendant to the plaintiff;
c) Cost of the suit is also awarded in favour of the plaintiff.
14. Decree Sheet be prepared accordingly. File be consigned to the Record Room. Digitally signed by GEETANJALI GEETANJALI Date:
2020.07.02 13:18:31 +0530 Typed to the dictation directly (Geetanjali) Corrected and announced Ld. Additional District Judge03 in the open court on this day Central/Tis Hazari Courts Delhi/30.06.2020 CS (Comm.) No. 544/2020 Page No. 9 of 9