Full Judgment Text
$~OS-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision 31.10.2017
+ CS(COMM) 476/2016 & IA No. 13781/2014
SUPER CASSETTES INDUSTRIES PVT LTD ..... Plaintiff
Through Mr.Pravin Anand, Ms.Prachi Agarwal
and Ms.Mrinali Menon, Advs.
versus
HALDWANI DIGITAL SERVICES PVT LTD ..... Defendant
Through defendant is ex parte
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This suit is filed by the plaintiff seeking a decree of permanent
injunction to restrain the defendant, etc. from engaging themselves or from
authorising in recording, distributing, broadcasting, public
performance/communication to the public or in any other way exploiting the
cinematograph films, sound recordings, etc. that is owned by the plaintiff
including all works whereon the plaintiff has shown its copyright under
Section 52A of the Copyright Act. Other connected reliefs including the
relief for rendition of account, etc. have also been sought.
2. Since defendant did not enter appearance despite service, it was
proceeded ex parte vide order dated 17.08.2015.
3. It is the plaintiff's case that it is one of the largest and most reputed
music companies in the country and is the owner of a large repertoire of
CS(COMM) 476/2016 Page 1 of 6
copyrighted works comprising cinematographic films, sound recordings etc.
operating under the brand T-SERIES. It is further pleaded that plaintiff’s
business also includes giving licences to various organizations such as
Broadcasting Organizations, Television Channels, FM Radio Stations,
Multi-System Operators(MSO) and Cable TV Operators etc. for the use of
its copyrighted works.
4. The defendant-Haldwani Digital Services Ltd., is said to be a Multi
System Operator based in Haldwani, Uttarakhand, and is providing cable
television services under the logo ‘ EXPLORE HDS’ to various subscribers
having operation majorly in the state of Uttarakhand including Kaladhungi,
Haldwani, Nainital, having thousands of connections.
5. The plaintiff pleads that in June 2014 in the course of random
monitoring of the defendant’s broadcasts, the plaintiff company came to
know about the unauthorized and unlicensed use of its copyrighted works on
the defendant’s cable television network. It is further stated that on coming
to know of the said infringement, the Plaintiff addressed a legal notice to the
th
Defendant dated 7 June, 2014stating the specific instances of infringement
of the Plaintiff’s repertoire by the Defendant and requesting the Defendant
to obtain the requisite public performance license to make their broadcasts
legal. However, no reply was received.
6. The plaintiff has filed its evidence by way of two affidavits. One
affidavit of PW-1 Mr. S.K. Dutta and another of PW-2 Mr. Sunil Puri has
been filed.
7. PW-1/Mr. S.K.Dutta in his affidavit by way of evidence has stated
that he is the Deputy General Manager of the plaintiff Company. He has also
filed an additional affidavit where he has pleaded that the plaintiff’s
CS(COMM) 476/2016 Page 2 of 6
repertoire represents huge investment of the plaintiff which includes costs
towards recording arrangements with well-known artists, infrastructural
costs and costs of maintaining and promoting the repertoire. It has also been
pleaded that the plaintiff acquires copyright in all literary, musical, etc.
works which it commissions and manages through assignments from its
authors or other prior owners of copyrights. The plaintiff’s business includes
giving licenses to cable television networks, multi system operators, satellite
TV, broadcasting organizations, FM Radio Stations, etc. He further pleads
that the defendant is a multi system operator carrying on its business of
providing cable TV services to subscribers in Uttarakhand. It is one of the
largest ground cable network providers in the Uttarakhand. It is stated that a
cable subscriber can have thousands of connections. Cease and desist notice
was issued on 07.06.2014.
8. It has also been pleaded in the affidavit that the defendant would have
around 12,000 subscriptions given the size and nature of the State of
Uttarakhand. The infringing activity came to the notice of the plaintiff in
June 2014. The plaintiff charges Rs.18/- per month per account for its
license. Hence, it is pleaded that keeping into account the fact that the
subscriber base of the defendant is approximately 12,000, there is a loss of
license fee of Rs.25,92,000/- per year to the plaintiff (12,000 x 18 x 12).
9. Reliance is placed on the decision of the Division Bench of this court
in Hindustan Unilever Limited vs. Reckitt Benckiser India Ltd., 2014(57)
PTC 495 (Del.) (DB) whereby this court had granted general compensation
to the tune of Rs.20 lakhs and exemplary damages of Rs.5,00,000/-. Hence,
it is pleaded that penalty of exemplary damages be granted to the plaintiff.
10. The plaintiff also contends that under Section 58 of the Copyright
CS(COMM) 476/2016 Page 3 of 6
Act, 1957 the plaintiff is also entitled to conversion damages which would
be the entire cost of the subscription.
11. Thus, according to the Plaintiff, the conversion damages in the present
case would be Rs.2, 88,000/- per year.
12. The plaintiff further contends that a plaintiff may claim both damages
for infringement and those for conversion as they are cumulative and not
mutually exclusive. It is contended that the measure of damages in conversion
is the value of infringing copies of the article/number of subscription.
13. PW-2 has proved the CD/DVD recordings of the infringing
nd
broadcasts made on 2 June 2014 along with cue-sheets containing details
of infringing broadcasts such as time of recording, film/album belonging to
the plaintiff’s repertoire, duration of infringement and reading along with the
screenshots of the CD recordings as Ex. PW 2/3 and Ex. PW 2/4. Further,
st
screenshots have been produced during the course of arguments on 31
October 2017.
14. It is quite clear from the unrebutted evidence placed on record that the
plaintiff has copyrights to the large repertoire works comprising of
cinematograph films, sound recordings, underlying musical and literary
works. The plaintiff has also a licensing programme which is a regular part
of its business whereby it grants licenses to the organizations such as FM
Radio stations, TV and broadcasting organizations for the network channels.
The defendant as per the evidence of record have been infringing rights of
the plaintiff through their cable network wherein sound recordings,
cinematograph films, underlying musical and literary works belonging to
the plaintiff’s repertoire have been communicated to the public without the
plaintiff’s permission and license. Hence, the defendant are liable to be
CS(COMM) 476/2016 Page 4 of 6
restrained from infringing the copyrights of the plaintiff. The plaintiff is also
entitled to damages.
15. This court in Hindustan Unilever Limited vs. Reckitt Benckiser
India Ltd. (supra) held as follows:-
“66. In India, the Supreme Court has affirmed the principles in
Rookes (supra) and Cassel (supra). Interestingly, however, the
application in those cases has been in the context of abuse of
authority leading to infringement of Constitutional rights or by
public authorities (ref. Ghaziabad Development Authority v. Balbir
Singh, (2004) 5 SCC 6; Lucknow Development Authority v. M.K.
Gupta, 1994 SCC (1) 243). As yet, however, the Supreme Court has
not indicated the standards which are to be applied while awarding
punitive or exemplary damages in libel, tortuous claims with
economic overtones such as slander of goods, or in respect of
intellectual property matters. The peculiarities of such cases would
be the courts' need to evolve proper standards to ensure
proportionality in the award of such exemplary or punitive
damages. The caution in Cassel that "[d]amages remain a civil, not
a criminal, remedy, even where an exemplary award is appropriate,
and juries should not be encouraged to lose sight of the fact that in
making such an award they are putting money into a plaintiffs
pocket.... " can never be lost sight of. Furthermore-and perhaps
most crucially-the punitive element of the damages should follow
the damages assessed otherwise (or general) damages; exemplary
damages can be awarded only if the Court is "satisfied that the
punitive or exemplary element is not sufficiently met within the
figure which they have arrived at for the plaintiffs solatium". In
other words, punitive damages should invariably follow the award
of general damages (by that the Court meant that it could be an
element in the determination of damages, or a separate head
altogether, but never completely without determination of general
damages).”
16. It is clear that the defendant have deliberately carried out violation of
the copyrights of the plaintiff. Hence, the plaintiff is entitled to punitive
CS(COMM) 476/2016 Page 5 of 6
damages.
17. In my opinion, I cannot rule out an element of over estimate of the
subscriber base of the defendant as the defendant is ex parte. In the facts of
the case in my opinion the ends of justice would be met if damages of Rs.20
lacs are awarded to the plaintiff.
18. I accordingly, pass a decree in favour of the plaintiff in terms of
prayer 37(i) of the plaint. A decree is also placed in favour of the plaintiff
and against the defendant for damages of Rs.20 lakhs. The plaintiff shall
also be entitled to Simple Interest of 9% per annum from the date of the
decree till recovery. The plaintiff is also entitled to actual costs.
19. The suit stands disposed of.
20. All pending applications also stand disposed of.
JAYANT NATH, J
OCTOBER 31, 2017
rb
corrected and released on 9.4.2018
CS(COMM) 476/2016 Page 6 of 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision 31.10.2017
+ CS(COMM) 476/2016 & IA No. 13781/2014
SUPER CASSETTES INDUSTRIES PVT LTD ..... Plaintiff
Through Mr.Pravin Anand, Ms.Prachi Agarwal
and Ms.Mrinali Menon, Advs.
versus
HALDWANI DIGITAL SERVICES PVT LTD ..... Defendant
Through defendant is ex parte
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This suit is filed by the plaintiff seeking a decree of permanent
injunction to restrain the defendant, etc. from engaging themselves or from
authorising in recording, distributing, broadcasting, public
performance/communication to the public or in any other way exploiting the
cinematograph films, sound recordings, etc. that is owned by the plaintiff
including all works whereon the plaintiff has shown its copyright under
Section 52A of the Copyright Act. Other connected reliefs including the
relief for rendition of account, etc. have also been sought.
2. Since defendant did not enter appearance despite service, it was
proceeded ex parte vide order dated 17.08.2015.
3. It is the plaintiff's case that it is one of the largest and most reputed
music companies in the country and is the owner of a large repertoire of
CS(COMM) 476/2016 Page 1 of 6
copyrighted works comprising cinematographic films, sound recordings etc.
operating under the brand T-SERIES. It is further pleaded that plaintiff’s
business also includes giving licences to various organizations such as
Broadcasting Organizations, Television Channels, FM Radio Stations,
Multi-System Operators(MSO) and Cable TV Operators etc. for the use of
its copyrighted works.
4. The defendant-Haldwani Digital Services Ltd., is said to be a Multi
System Operator based in Haldwani, Uttarakhand, and is providing cable
television services under the logo ‘ EXPLORE HDS’ to various subscribers
having operation majorly in the state of Uttarakhand including Kaladhungi,
Haldwani, Nainital, having thousands of connections.
5. The plaintiff pleads that in June 2014 in the course of random
monitoring of the defendant’s broadcasts, the plaintiff company came to
know about the unauthorized and unlicensed use of its copyrighted works on
the defendant’s cable television network. It is further stated that on coming
to know of the said infringement, the Plaintiff addressed a legal notice to the
th
Defendant dated 7 June, 2014stating the specific instances of infringement
of the Plaintiff’s repertoire by the Defendant and requesting the Defendant
to obtain the requisite public performance license to make their broadcasts
legal. However, no reply was received.
6. The plaintiff has filed its evidence by way of two affidavits. One
affidavit of PW-1 Mr. S.K. Dutta and another of PW-2 Mr. Sunil Puri has
been filed.
7. PW-1/Mr. S.K.Dutta in his affidavit by way of evidence has stated
that he is the Deputy General Manager of the plaintiff Company. He has also
filed an additional affidavit where he has pleaded that the plaintiff’s
CS(COMM) 476/2016 Page 2 of 6
repertoire represents huge investment of the plaintiff which includes costs
towards recording arrangements with well-known artists, infrastructural
costs and costs of maintaining and promoting the repertoire. It has also been
pleaded that the plaintiff acquires copyright in all literary, musical, etc.
works which it commissions and manages through assignments from its
authors or other prior owners of copyrights. The plaintiff’s business includes
giving licenses to cable television networks, multi system operators, satellite
TV, broadcasting organizations, FM Radio Stations, etc. He further pleads
that the defendant is a multi system operator carrying on its business of
providing cable TV services to subscribers in Uttarakhand. It is one of the
largest ground cable network providers in the Uttarakhand. It is stated that a
cable subscriber can have thousands of connections. Cease and desist notice
was issued on 07.06.2014.
8. It has also been pleaded in the affidavit that the defendant would have
around 12,000 subscriptions given the size and nature of the State of
Uttarakhand. The infringing activity came to the notice of the plaintiff in
June 2014. The plaintiff charges Rs.18/- per month per account for its
license. Hence, it is pleaded that keeping into account the fact that the
subscriber base of the defendant is approximately 12,000, there is a loss of
license fee of Rs.25,92,000/- per year to the plaintiff (12,000 x 18 x 12).
9. Reliance is placed on the decision of the Division Bench of this court
in Hindustan Unilever Limited vs. Reckitt Benckiser India Ltd., 2014(57)
PTC 495 (Del.) (DB) whereby this court had granted general compensation
to the tune of Rs.20 lakhs and exemplary damages of Rs.5,00,000/-. Hence,
it is pleaded that penalty of exemplary damages be granted to the plaintiff.
10. The plaintiff also contends that under Section 58 of the Copyright
CS(COMM) 476/2016 Page 3 of 6
Act, 1957 the plaintiff is also entitled to conversion damages which would
be the entire cost of the subscription.
11. Thus, according to the Plaintiff, the conversion damages in the present
case would be Rs.2, 88,000/- per year.
12. The plaintiff further contends that a plaintiff may claim both damages
for infringement and those for conversion as they are cumulative and not
mutually exclusive. It is contended that the measure of damages in conversion
is the value of infringing copies of the article/number of subscription.
13. PW-2 has proved the CD/DVD recordings of the infringing
nd
broadcasts made on 2 June 2014 along with cue-sheets containing details
of infringing broadcasts such as time of recording, film/album belonging to
the plaintiff’s repertoire, duration of infringement and reading along with the
screenshots of the CD recordings as Ex. PW 2/3 and Ex. PW 2/4. Further,
st
screenshots have been produced during the course of arguments on 31
October 2017.
14. It is quite clear from the unrebutted evidence placed on record that the
plaintiff has copyrights to the large repertoire works comprising of
cinematograph films, sound recordings, underlying musical and literary
works. The plaintiff has also a licensing programme which is a regular part
of its business whereby it grants licenses to the organizations such as FM
Radio stations, TV and broadcasting organizations for the network channels.
The defendant as per the evidence of record have been infringing rights of
the plaintiff through their cable network wherein sound recordings,
cinematograph films, underlying musical and literary works belonging to
the plaintiff’s repertoire have been communicated to the public without the
plaintiff’s permission and license. Hence, the defendant are liable to be
CS(COMM) 476/2016 Page 4 of 6
restrained from infringing the copyrights of the plaintiff. The plaintiff is also
entitled to damages.
15. This court in Hindustan Unilever Limited vs. Reckitt Benckiser
India Ltd. (supra) held as follows:-
“66. In India, the Supreme Court has affirmed the principles in
Rookes (supra) and Cassel (supra). Interestingly, however, the
application in those cases has been in the context of abuse of
authority leading to infringement of Constitutional rights or by
public authorities (ref. Ghaziabad Development Authority v. Balbir
Singh, (2004) 5 SCC 6; Lucknow Development Authority v. M.K.
Gupta, 1994 SCC (1) 243). As yet, however, the Supreme Court has
not indicated the standards which are to be applied while awarding
punitive or exemplary damages in libel, tortuous claims with
economic overtones such as slander of goods, or in respect of
intellectual property matters. The peculiarities of such cases would
be the courts' need to evolve proper standards to ensure
proportionality in the award of such exemplary or punitive
damages. The caution in Cassel that "[d]amages remain a civil, not
a criminal, remedy, even where an exemplary award is appropriate,
and juries should not be encouraged to lose sight of the fact that in
making such an award they are putting money into a plaintiffs
pocket.... " can never be lost sight of. Furthermore-and perhaps
most crucially-the punitive element of the damages should follow
the damages assessed otherwise (or general) damages; exemplary
damages can be awarded only if the Court is "satisfied that the
punitive or exemplary element is not sufficiently met within the
figure which they have arrived at for the plaintiffs solatium". In
other words, punitive damages should invariably follow the award
of general damages (by that the Court meant that it could be an
element in the determination of damages, or a separate head
altogether, but never completely without determination of general
damages).”
16. It is clear that the defendant have deliberately carried out violation of
the copyrights of the plaintiff. Hence, the plaintiff is entitled to punitive
CS(COMM) 476/2016 Page 5 of 6
damages.
17. In my opinion, I cannot rule out an element of over estimate of the
subscriber base of the defendant as the defendant is ex parte. In the facts of
the case in my opinion the ends of justice would be met if damages of Rs.20
lacs are awarded to the plaintiff.
18. I accordingly, pass a decree in favour of the plaintiff in terms of
prayer 37(i) of the plaint. A decree is also placed in favour of the plaintiff
and against the defendant for damages of Rs.20 lakhs. The plaintiff shall
also be entitled to Simple Interest of 9% per annum from the date of the
decree till recovery. The plaintiff is also entitled to actual costs.
19. The suit stands disposed of.
20. All pending applications also stand disposed of.
JAYANT NATH, J
OCTOBER 31, 2017
rb
corrected and released on 9.4.2018
CS(COMM) 476/2016 Page 6 of 6