Sony Music Entertainment India Private Limited vs. KAL Radio Limited & Anr., COMM. IP SUIT (L) NO. 8229/2021

 

      

Sony Music Entertainment India Private Limited (hereinafter referred to as ‘Plaintiff’) filed a copyright infringement suit seeking an injunction and damages against KAL Radio Limited (hereinafter referred to as ‘Defendant No. 1’) and Sony Music Entertainment (hereinafter referred to as ‘Defendant No. 2’).

The Plaintiff is part of an international conglomerate which manufactures and provides a range of products and services. Among these is its media arm, which provides film, television and music content. Sony India is the owner inter alia of various sound recordings (including the literary and musical works in those). These form part of its Indian repertoire. The Defendant No. 2 that is Sony Music Entertainment, a New York-based music label, acquires, owns and controls copyright in various works and distributes music in various genres. Plaintiff is Defendant No. 2’s exclusive licensee in India for the international music and sound recordings in which Defendant No. 2 has copyright. This is Plaintiff’s “International Repertoire”.

Plaintiff was a member of the Phonographic Performance Limited (“PPL”) prior to 2010. The Defendant No. 1 a broadcasting organization within the meaning of the Copyright Act 1957, previously used Plaintiff’s copyright protected works under licenses it obtained from PPL.

On 5th February 2021, Defendant No. 1 emailed Plaintiff seeking information about its copyright-protected works and accordingly on 9th February 2021, Plaintiff replied saying that these copyright protected works had been part of Defendant No. 1’s broadcasts for many years. Further on 12th February 2021, Defendant No. 1 again emailed a notice to Plaintiff, purportedly under Section 31-D read with Rule 29 of the Copyright Rules 2013, claiming an entitlement to a statutory license to which Plaintiff replied on 24th February 2021, stating that Defendant No. 1’s notice was not in conformity with Section 31-D and the relevant rules.

Later, in early March 2021, Plaintiff’s representative found that Defendant No. 1 was broadcasting, on various FM radio stations, recordings from Plaintiff’s Indian repertoire. On 9th March 2021, Defendant No. 1 emailed a royalty calculation and a log file of some of its radio channels for January 2021. It admitted use of Plaintiff’s copyright protected works.

Thereafter, Plaintiff filed a copyright infringement suit on the grounds that Defendant No. 1 does not have a license. It has not validly got even a statutory license.

The Defendants argued that scheme of Section 31-D entitles a broadcasting organization to use the works ‘the moment it sends a notice and payment’.

The Hon’ble Court observed that Prima facie, the entire scheme of Sections 31 to 31-D is a departure for the general principles in copyright law in regard to licensing. These provisions force the grant of licenses under various conditions. Generally, copyright licensing is a matter of contractual volition in an arms’ length transaction. A copyright owner may assign his or her copyright in whole or in part, or may license it subject to agreed conditions. However, Section 31-D compels a copyright owner to grant a license, and the statutory regime itself sets out the terms and conditions. Section 31-D deprives a copyright owner of the freedom of choice in licensing. The ‘compelling’ component of Section 31-D is actually bidirectional not unidirectional. Just as a copyright owner or holder is compelled — subject to strict compliance — to comply with the statutory licensing regime of Section 31-D and the companion rules, the statutory licensee is also compelled negatively to not use the copyright protected works unless it has obtained a statutory license. Further, the Defendant No. 1 admittedly broadcast parts of Plaintiff’s repertoire without a valid statutory license. Hence, The Plaintiff has a prima facie case for a time-limited ad-interim injunction.

Accordingly till the pendency to final disposal of the present suit, Defendant No.1, its servants, directors, agents or any other persons/entity claiming through or under them be restrained by a temporary order and injunction of this Hon’ble Court from broadcasting/communicating to the public on the Defendant No.1’s FM radio stations through the Impugned Programmes and/or illegally exploiting, the Plaintiff’s Copyrighted works, i.e., its Indian and International repertoire without complying the provisions of Section 31-D of the Copyright Act and the Rules framed thereunder, so as to infringe the Plaintiff’s copyright in the same in any manner.

The Next date of hearing is fixed on 30th June 2021.