18 May 2020


Judgments

High Court of Calcutta

Saregama India Limited Vs. Sky B (Bangla) Private Limited

MANU/WB/0333/2020

28.02.2020

Intellectual Property Rights

At an interlocutory stage, it cannot be said that, Plaintiff did not have a chance of success at the trial

In a suit for infringement of copyright, the Plaintiff has sought interim reliefs by present application. Learned senior advocate appearing for the Plaintiff has submitted that, the Plaintiff is the owner of a large repertoire of literary, musical and other related works and sound recording in respect of several songs played in several films. He has submitted that, the Defendant conducted various musical programs in its television channel and wrongfully and illegally caused performance of the songs of the Plaintiff therefore infringing the copyright belonging to the Plaintiff.

Learned senior advocate appearing for the Plaintiff has relied upon Section 55 (2) of the Copyright Act, 1957 and submitted that, since, the plaintiff is the owner and has the copyright of the sound recording, lyrics and music composed in the songs, there is a presumption existing in favour of the plaintiff.

The Plaintiff claims that, the Plaintiff entered into agreements with various producers and production houses by virtue of which the plaintiff became the owner of the sound recordings and literary and musical works in the sound recordings forming part of the films produced by such producers and production houses. The plaintiff claims on such basis that, the Plaintiff has the sole right of production, reproduction, sale, use and performance including broad casting, throughout the world, by any and every means whatsoever, of the records of the work of which the plaintiff is the owner. According to the Plaintiff, the defendant conducted various musical programmes in the television channel run by the defendant infringing the copyright of the plaintiff. In such television programmes, the Defendant wrongfully and illegally used exploited and caused performance of the songs of the Plaintiff as also the musical and literary and lyrical works in such songs.

In the course of hearing of the present petition, the Defendant has questioned the ownership of the Plaintiff in respect of the songs over which the Plaintiff claims copyright. The Plaintiff has produced sample deeds claiming to be deeds of ownership by virtue of which the plaintiff has copyright over the songs. According to the Defendant, the clauses of such deeds do not constitute assignment of ownership of the copyright in favour of the plaintiff.

Section 61 of the Act of 1957 lays down that, in every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant. It also allows such owner to have the right to dispute the claim of the Plaintiff as the exclusive licensee. In the facts of the present case, the Plaintiff claims to be the owner of the copyright by virtue of agreements entered into with the owners. A similar agreement as that obtaining in the present case, was construed in Gramophone Company of India Ltd. and there, it was held that, at an interlocutory stage, it cannot be said that, the Plaintiff did not have a chance of success at the trial. On the strength of the ratio of Gramophone Company of India Ltd. vs. Shanti Films Corporation and others, at this stage therefore, it cannot be said that the suit is bad for non-joinder of parties and that the Plaintiff herein is not entitled to interim relief as prayed for.

Section 45 of Act of 1957, provides for entries in the register of copyrights. Section 48 of the Act of 1957 creates a rebuttable evidence of ownership in favour of a person whose name appears in the register of copyrights. A person not featuring in the register of copyrights cannot be said not to be the owner of such copyright at all. There may be instances where a person may not be registered in the register of copyrights, be the owner of the copyright. Where a person who does not feature in the register of copyrights, he has to prove his right through a process known to law. Section 49 of Act of 1957, allows correction of entries in the register of copyrights.

Section 31C of the Act of 1957 has been introduced with effect from June 21, 2012. It requires a person desirous of making a cover version to obtain the consent of the owner of the right. It also lays down various parameters which the person making a cover version has to follow. In the facts of the present case, the Defendant did not obtain any permission under Section 31C of the Act of 1957 from the Plaintiff nor followed the parameters laid down under such provisions of law.

The Plaintiff having made out a prima facie case and the balance of convenience and inconvenience being in favour of the Plaintiff and the claim for damages not being ascertainable at this stage, it would be appropriate to grant interim protection to the Plaintiff as prayed for.

Relevant

Gramophone Company of India Limited vs. Shanti Films Corporation and others MANU/WB/0008/1997

Tags : Infringement Interim protection Grant

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