Delhi District Court
M/S. Super Cassettes Industries Pvt. ... vs Swetha Digital Cable Tv ... on 30 June, 2020
IN THE COURT OF Ms. GEETANJALI
ADJ 3 (CENTRAL), TIS HAZARI COURTS: DELHI
CS (Comm) No. 569/20
M/s. Super Cassettes Industries Pvt. Ltd.
E2/16, White House, Ansari Road,
Daryaganj, New Delhi110002. .....Plaintiff
VERSUS
Swetha Digital Cable TV Networks/Ajanta Infocom
2101758, Chaitanyapuri
Karimnagar505001
Telangana .....Defendant
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMNT OF COPYRIGHT, MANDATORY
INJUNCTION, DAMAGES & FOR RENDITION OF ACCOUNTS
Date of Institution : 07.09.2017
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 and 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: 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 C.S. No. 569/2020 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 Sawhney, Kumar Nishu, Guddu Rangila, Manoj Tiwari, Bharat Sharma Vyas, Madan Rai, Kalpana Potwariya, 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/ C.S. No. 569/2020 Page No. 2 of 9 DVDs/VCDs prominently display the logo of the plaintiff's label "T Series", 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). 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 /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 C.S. No. 569/2020 Page No. 3 of 9 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. 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 Telanagana is a ground cable operator and carries on business of providing cable television services under the name and logo of "KNR Channel", "Swetha V" and "V5 Music". The defendant on its cable network under the logo of "KNR Channel", "Swetha V" and "V5 Music" 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 "KNR Channel", "Swetha V" and "V5 Music" without a valid licence. The business model of the defendant is to operate non stop music channels to enhance its viewership 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.
C.S. No. 569/2020 Page No. 4 of 93. It was on 09.09.2016 and 10.09.2016 that plaintiff obtained information that the defendant was broadcasting/ communicating to the public plaintiff's copyrighted works unauthorizedly and without having obtained license or permission from the plaintiff. A recording of such infringing materials was made in the month of September, 2016. It is averred that the said recording shows that defendant through its cable television network under the logo of "KNR Channel", "Swetha V"
and "V5 Music" was infringing plaintiff's works including audiovideo songs namely 'Sanam Re' from the movie Sanam Re and 'Sun Raha Hai Na Tu' from the movie Aashiqui2 etc. The recording further shows the defendant's channel logos on top right corner. A cue sheet was also prepared 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 21.11.2016 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 27.12.2016 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 C.S. No. 569/2020 Page No. 5 of 9 irreparable 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. Ex. PW1/1 is the Board Resolution dated 01.03.2016, Ex. PW1/2 (colly.) is the Copyright Certificates of the movie "Sanam Re" and its song "Sanam Re" and the song "Sun Raha Hai Na Tu" from movie "Aashiqui2", Ex.PW1/3 is the original DVD containing the songs of illegal communication, Ex.PW1/4 is the cue sheet, Ex.PW1/5 is the office copy of letter dated 21.11.2016, Mark A is the postal receipt, Ex.PW1/7 is the internet tracking report, Ex. PW1/8 is the office copy of legal notice dated 27.12.2016 and Ex.PW1/9 is the proof of dispatch of legal notice dated 27.12.2016. He was not cross examined by the defendant.
6.1 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.
C.S. No. 569/2020 Page No. 6 of 98. The present suit has been filed for permanent and mandatory injunction, 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 'Sanam Re' and its song 'Sanam Re' and 'Aashiqui2' and its song "Sun Raha Hai Na Tu'. Copyright certificate is Ex.PW1/2 (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 who was able to record such infringing broadcasts on the defendant's channel on a sample basis in 09.09.2016 and 10.09.2016. 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 "KNR Channel", "Swetha V" and "V5 Music" 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 "KNR Channel", "Swetha V"
and "V5 Music" as detected by PW2.
10. 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 C.S. No. 569/2020 Page No. 7 of 9 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 Lakhs only).
13. 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 C.S. No. 569/2020 Page No. 8 of 9 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 Rs. 20,00,000/ (Rupees Twenty Lakhs 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 13:17:01 +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.
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