Delhi District Court
M/S. Super Cassettes Industries Pvt. ... vs M/S. Puruliya Cable Associates on 1 November, 2018
IN THE COURT OF SHRI M. P. SINGH
ADDITIONAL DISTRICT JUDGE03 (CENTRAL),
TIS HAZARI COURTS, DELHI
CS No. 45/17
New CS No. 1391/17
M/s. Super Cassettes Industries Pvt. Ltd.
E2/16, White House, Ansari Road,
Daryaganj, New Delhi110002. ..............Plaintiff
VERSUS
M/s. Puruliya Cable Associates
Municipal Complex, Room No. 9,
Chaipasa Road, Puruliya - 723101
West Bengal .............Defendant
SUIT FOR PERMANENT INJUNCTION RESTRAINING
INFRINGEMNT OF COPYRIGHT, MANDATORY
INJUNCTION, DAMAGES & RENDITION OF ACCOUNTS
Date of Institution of Suit : 18.01.2017
Date of pronouncement of judgment : 01.11.2018
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 CS No. 45/17 New CS No. 1391/17 Page No. 1 of 11 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.
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.
CS No. 45/17 New CS No. 1391/17 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.
CS No. 45/17 New CS No. 1391/17 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 Puruliya, West Bengal is a Ground Cable Operator carrying on business of providing cable television services to various subscribers under the name and logo of "PCA CLASSIC". Defendant on its cable CS No. 45/17 New CS No. 1391/17 Page No. 4 of 11 network under the logo of "PCA CLASSIC" provides services such as cable advertising and nonstop entertainment wherein it makes extensive use of Hindi songs and film extracts. Defendant also at times shows cinematograph films/ movies which are mostly pirated. The defendant is doing so without obtaining a License from the plaintiff. The said services are merely directed to enhance viewership amongst defendant's subscribers and also to increase revenue generated though advertising. Such unlicensed and unauthorized use of plaintiff's work by defendant on its cable television network amounts to infringement of 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 24.07.2016 that plaintiff first came to know that the defendant was utilizing and broadcasting its musical and audiovisual works to the public unauthorizedly and without having obtained license or permission from it to use such works or communicate them to the public. A recording of such infringing materials was made on 24.07.2016 by an official of the plaintiff. The recording so made detected various instances of infringement by the defendant on its cable television network under the logo of "PCA CLASSIC"
of plaintiff's works such as song "Sanam Re" from the film "Sanam Re" and the song "Ki Main Hoon Hero Tera" from the film/Album "Hero", the song "Mala Mal Soniye", from the film/ Album "Housefull3, the song "Hey Babby" from the film CS No. 45/17 New CS No. 1391/17 Page No. 5 of 11 "Hey Babby", etc. Said recording shows that defendant through its cable network as aforesaid is broadcasting audio visual clips in which plaintiff has copyright. Such works include the songs as mentioned above. Such recording shows defendant's channel logo. A cue sheet, prepared by plaintiff's official on the basis of video recordings, clearly shows 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 amounts to infringement of plaintiff's copyright in the said songs. Plaintiff issued a letter dated 08.08.2016 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 05.09.2016 to the defendant, but in vain. It is alleged that the defendant is continuing to actively infringe plaintiff's copyrighted works. 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. Thus, present suit has been filed.
9. Summons of the suit was served upon the defendant by the mode of publication in the newspaper The Hindu dated 21.11.2017. Defendant did not appear and neither did it file CS No. 45/17 New CS No. 1391/17 Page No. 6 of 11 its written statement. Defendant suffered the proceedings ex parte vide order 27.02.2018.
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) Ex. PW 1/1 (OS&R) is the Board Resolution dt. 01.03.2016 passed by the Board of Directors of the plaintiff company in favour of PW1; (2) Ex. PW1/2 is the certificate of incorporation of plaintiff company; (3) Ex. PW1/3 (colly) are the orders passed by Hon'ble High Courts granting ex parte interim injunction against various defendants and in plaintiff's favour; (4) Ex. PW1/4 (colly) are the copyright certificate for films Sanam Re, Hero, Housefull3 and Hey Babby; (5) Ex. PW1/5 is the DVD containing illegal songs broadcast by defendant; (6) Ex. PW1/6 is the cue sheets (list of songs) in abovementioned DVD; (7) Ex. PW1/7 is the letter dt. 08.08.2016 sent by plaintiff company to the defendant; (8) Ex. PW1/8 is the dispatch slip of letter dt. 08.08.2016 sent by plaintiff company to the defendant; (9) Ex. PW1/9 is the tracking report of letter dt. 08.08.2016 sent by plaintiff company to the defendant; (10) Ex. PW1/10 is the legal notice dt. 05.09.2016; and (11) Ex. PW1/11 is the dispatch slip of the legal notice dt. 05.09.2016.
11. Plaintiff also examined Mr. Vikas Bari as PW2 vide affidavit Ex.PW2/A. PW2 has relied upon documents Ex.PW1/5 and Ex.PW1/6.
CS No. 45/17 New CS No. 1391/17 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 plaintiff's official who was able to record such infringing broadcasts on the defendant's channel on 24.07.2016. Plaintiff was able to detect various instances of infringement by the defendant on programs broadcast on its cable network under the logo of "PCA CLASSIC" wherein sound recordings, cinematograph films, plaintiff's repertoire of audio/ video songs were communicated to the public, without plaintiff's permission or license.
14. It is also proved that plaintiff company is the owner of copyright of the works broadcast by the defendant on its channels i.e. "PCA CLASSIC". 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 are 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 CS No. 45/17 New CS No. 1391/17 Page No. 8 of 11 copyrights from the authors and owner thereof and the same runs into several 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.
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).
CS No. 45/17 New CS No. 1391/17 Page No. 9 of 1119. 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;
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;
CS No. 45/17 New CS No. 1391/17 Page No. 10 of 11d) 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 SINGH
Date:
2018.11.01
On 01.11.2018
13:33:30 +0530
M.P. SINGH
ADJ03, (CENTRAL)
TIS HAZARI COURTS
DELHI
CS No. 45/17
New CS No. 1391/17 Page No. 11 of 11