Delhi District Court
M/S. Super Cassettes Industries Pvt. ... vs Sky Cable Network on 30 October, 2018
IN THE COURT OF SHRI M. P. SINGH
ADDITIONAL DISTRICT JUDGE03 (CENTRAL),
TIS HAZARI COURTS, DELHI
TM No. 03/18
New TM No. 1/18
M/s. Super Cassettes Industries Pvt. Ltd.
E2/16, White House, Ansari Road,
Daryaganj, New Delhi110002. ..............Plaintiff
VERSUS
SKY Cable Network
3rd Floor, About Bank of Maharashtra
Gopal Char Rasta, Anand - 388001, Gujarat. .......Defendant
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMNT OF COPYRIGHT, MANDATORY
INJUNCTION, DAMAGES & RENDITION OF ACCOUNTS
Date of Institution of Suit : 02.01.2018
Date of pronouncement of judgment: 30.10.2018
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 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 TM No. 03/18 New TM No. 1/18 Page No. 1 of 11 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.
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.
TM No. 03/18 New TM No. 1/18 Page No. 2 of 114. 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. Plaintiff's repertoire is easily identified by the public, since all the CDs/ DVDs/VCDs prominently display the logo of the plaintiff's 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.
TM No. 03/18 New TM No. 1/18 Page No. 3 of 11Ltd 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 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 at Anand, Gujarat is a Ground Cable Operator carrying on business of providing cable television services to various subscribers under the name and logo of "SKY MOVIES". Defendant on its cable network TM No. 03/18 New TM No. 1/18 Page No. 4 of 11 under the logo of "SKY MOVIES" provides services such as cable advertising and nonstop entertainment wherein it makes extensive use of Hindi songs and film extracts as also cinematograph films/ movies which are mostly pirated. The defendant is doing so without obtaining a License from the plaintiff. The business model defendant is to enhance 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 amount 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 on 20.07.2017 that plaintiff first came to know 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. A recording of such infringing materials was made on 20.07.2017 by PW2 Mr. Mohit Sharma. The recording so made by PW2 Mohit Sharma detected various instances of infringement by the defendant on its cable television networks under the logo of "SKY MOVIES" of plaintiff's works such as song "Yeh Jo Halka Halka Suroor Hai" from the film/ movie "Halka Halka"
song "Love Me Thoda Aur" from the movie "Yaarian", the song "Mujhko Barsat Bana Lo" from the movie "Junooniyat", TM No. 03/18 New TM No. 1/18 Page No. 5 of 11 the song "Kabhi Jo Badal Barse" from the movie "Jackpot", the son "Sun Mere Hamsafar" from the movie "Badrinath Ki Dulhaniya" and the song "Mein Tere Ishq Mein" from the movie "Tera Suroor" etc. Said recording shows that defendant through its cable networks as aforesaid is broadcasting audio visual clips in which plaintiff has copyright. Such works include the songs as mentioned above. 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.
8. It is averred that such an action of the defendant amount to infringement of copyright of the plaintiff in the said songs. Plaintiff then issued a letter dated 24.07.2017 to the defendant thereby informing the latter about its rights in the said works and about the need to obtain license, but it failed to have the desired effect. Thereafter, plaintiff issued a legal notice dated 04.08.2017 to the defendant, but in vain. It is alleged that the defendant is continuing to actively infringe 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 non payment of license fee by the defendant for the entire duration during which the defendant had broadcast the plaintiff's work in an unauthorized manner. Thus, present suit has been filed.
TM No. 03/18 New TM No. 1/18 Page No. 6 of 119. Summons of the suit was served upon defendant. Defendant did not appear and neither did it file its written statement. Defendant suffered the proceedings ex parte vide order 01.08.2018.
10. In evidence, plaintiff examined its Authorized Representative Sh. Anil Maini as PW1 vide affidavit Ex.PW1/A. PW1 has relied upon document viz (1) Copy of Board Resolution is Ex.PW1/1 (OSR), (2) Certificate of Incorporation is Ex.PW1/2, (3) Copies of orders passed by the Hon'ble High Courts granting an ex parte interim injunction against various defendants are Ex.PW1/3 (Colly.), (4) Copyright Certificates are Ex.PW1/4 (Colly.) (OSR), (5) DVD containing a recording of the broadcast is Ex.PW1/5, (6) Cue Sheet prepared by Mohit Sharma is Ex.PW1/6, (7) Snapshots along with logo "SKY MOVIES" and Trade Mark/Logo of the plaintiff company are Ex.PW1/7, (8) Copy of letter dated 24.07.2017 is Ex.PW1/8, (9) Proof of dispatch is Ex.PW1/9, (10) Proof of delivery along with remark "DELIVERED" is Ex.PW1/10, (11) Legal notice dated 04.08.2017 is Ex.PW1/11, (12) Proof of dispatch is Ex.PW1/12, (13) The consignment note (Proof of delivery) report of Internet delivery dated 08.08.2017 along with the remark "DELIVERED" is Ex.PW1/13.
11. Plaintiff also examined Mr. Mohit Sharma as PW2 vide affidavit Ex.PW2/A. PW2 has relied upon documents already exhibited as Ex.PW1/5, Ex.PW1/6, and Ex.PW1/7.
TM No. 03/18 New TM No. 1/18 Page No. 7 of 1112. Arguments heard. Record perused.
13. In the case at hand 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 by PW2 Mr. Mohit Sharma who was able to record such infringing broadcasts on the defendant's channel on 20.07.2017. Plaintiff was able to detect various instances of infringement by the defendant on programs broadcast on its cable network under the logos of "SKY MOVIES" 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 channels i.e."SKY MOVIES" as detected by PW2 Mr. Mohit Sharma. The copies of sample Assignment Deeds which illustrate that the plaintiff company is the exclusive copyright owner of the said works 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 TM No. 03/18 New TM No. 1/18 Page No. 8 of 11 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 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.
17. In Super Cassettes Industries Pvt. Ltd. Vs Ragany Cable TV Pvt. Ltd. CS (COMM) 1222/2016, dated 22.05.2017, Hon'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.
TM No. 03/18 New TM No. 1/18 Page No. 9 of 1118. 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 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;
TM No. 03/18 New TM No. 1/18 Page No. 10 of 11c) 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 signedMURARI by MURARI PRASAD SINGH Announced in the open Court PRASAD Date: SINGH 2018.10.30 On 30.10.2018 15:04:35 +0530 M.P. SINGH ADJ03, (CENTRAL) TIS HAZARI COURTS DELHI TM No. 03/18 New TM No. 1/18 Page No. 11 of 11