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2016 (8) TMI 614 - DELHI HIGH COURT

2016 (8) TMI 614 - DELHI HIGH COURT - TMI - Infringement of Copyright - Decree of permanent injunction - Held that:- The Court is satisfied that the Plaintiff has been able to prove the infringement by the Defendant of the R3 of the members of the Plaintiff Society in the performances as recorded in the CDs prepared by the Plaintiff’s Investigator. The playing of songs by the Defendant in its restaurant without payment of royalty to the Plaintiff is a violation of the R3 of the performers who ar .....

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nd all others acting for and on its behalf from communicating to the public the Plaintiffs repertoire comprising of Performer's performances of all its members and that of the members of its sister societies which it is authorized to administer in India, without paying royalties to and obtaining a clearance from the Plaintiff Society or doing any other act infringing the Plaintiffs Performer's rights through any medium including but not limited to radio stations, TV and usage by mobile companies .....

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ver, the right of the Plaintiff to institute separate proceedings in future in that regard against the Defendant, after rendition of accounts by the Defendant in terms of para 18 above, in accordance with law is reserved. - The suit is decreed in the above terms with costs of ₹ 20,000 which will be paid by the Defendant to the Plaintiff within four weeks. - CS (OS) 2068/2015 & IA No. 14261/2015 - Dated:- 12-8-2016 - SHRI S. MURALIDHAR J. Plaintiff Through: Mr. Pravin Anand with Mr. Dhr .....

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performances of all its members and that of the members of its sister societies which it is authorized to administer in India without paying royalties to and obtaining a clearance from the Plaintiff Society or doing any other that will infringe the Plaintiff s Performer's rights through any medium including but not limited to Radio Stations, TV and usage by Mobile Companies and violating the Right to Receive Royalties (the R3) and their Performer's Rights. 3. The suit was filed along wi .....

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and Restaurant. On finding that no one was appearing on its behalf, the Court set the sole Defendant ex parte. 4. In IA No. 14261 of 2015, by the order dated 10th September 2015 the Court issued an order of interim injunction restraining the Defendant and everyone acting on its behalf from communicating to the public, the Plaintiff s repertoire comprising of Performances of all its members and works of its societies which the Plaintiff is authorised to administer in India, without obtaining a & .....

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orporation dated 3rd May 2013 is Ex.PW-1/2. After the amendment to the Copyright Act, 1957 by the Copyright (Amendment) Act, 2012, the Plaintiff was one of the first societies to be registered for protection of Performers Rights described under Section 38 of the Copyright Act, 1957 ( Act ). 7. Under Section 38 A (1)(a)(iii) of the Act, the performer s right which is an exclusive right includes the right to make a sound recording or a visual recording of the performance including communication of .....

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a work. Section 18 provides for assignment of copyright. The fourth proviso to Section 18(1) reads as under: Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilisation of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and .....

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cate of registration of the Plaintiff society which is dated 14th June 2013 is exhibited as Ex. PW-1/3. The Plaintiff has placed as Ex. PW1/7 the list of its members which includes renowned Indian singers. Its Board of Directors includes the legendary Lata Mangeshkar and other well known singers including Sonu Nigam, Alka Yagnik, Kumar Sanu, Pankaj Udhas. Many other well known singers are also its members. The Plaintiff has two categories of members i.e. ordinary members who are individual perfo .....

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le authorisation deeds have been exhibited as Ex. PW-1/9 collectively. 11. It is stated that the Plaintiff s tariffs work out only to a negligible and insignificant percentage of the turnover of radio stations, TV and mobile companies, event organisers, shops, departmental stores, hotels, showrooms, emporiums, hotels and restaurants etc. The Plaintiff's tariffs are displayed on its website. A printout has been exhibited as Ex.PW-1/11. 12. The case of the Plaintiff is that the Defendant Chapt .....

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s of Section 65B of the Evidence Act 1882 having been satisfied, the Court takes the said evidence on record. 13. A table depicting the list of songs belonging to the Plaintiff s repertoire which was communicated to the public as noted by the Plaintiff s Investigator including the names of singers, has been set out in para 22 of the affidavit of Mr Tandon. It is stated that the list was only a sample list for a short period of two hours during which Investigator was present at the Defendant s ba .....

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however, did not come forward to obtain such certificate. It is stated that the public performance of the Plaintiff s repertoire at the Defendant s Bar and Restaurant without permission of the Plaintiff and without payment of royalties is an infringement of the Plaintiff s Performer s Right and violation of the R3. It is stated that the Plaintiff and through the Plaintiff its members are suffering loss of their legitimate dues because of the Defendant's refusal to pay the licence fee to the .....

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e rights in a performance, the owner of which is the performer and which could then be assigned to the Plaintiff. This is a distinct right which has received recognition in terms of the amendments to the Act in 2012. It is evident that the performer has the R3 every time his/her performance in a song is commercially used except when it is used along with the cinematograph film in a cinema hall. If the Performer consents to the incorporation of his/her performance in a film, he/she may by contrac .....

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ety in the performances as recorded in the CDs prepared by the Plaintiff s Investigator. The playing of songs by the Defendant in its restaurant without payment of royalty to the Plaintiff is a violation of the R3 of the performers who are members of the Plaintiff. The exploitation of the performances of the members of the Plaintiff by the Defendant by playing the said performances in its bar and restaurant without obtaining the Performer s Rights Clearance Certificate thus constitutes an infrin .....

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