K.S. Gupta, J:

In a suit for permanent injunction and damages the plaintiff filed IA No. 8871/97 under Order XXXIX Rules 1 & 2 read with Section 151 CPC alleging that in or about the year 1981, plaintiff introduced in market the audio cassettes entitled GANPATI AARTI ASHTVINAYAK GEETE. By virtue of the provisions of the Copyright Act, 1957 (for short the Act) and the Copyright Amendment Act, 1994 plaintiff is the owner of copyright in the sound recordings of the said audio cassette. It is also the owner of copyright in lyrics embodied in the sound recordings which were assigned to it by the authors of lyrics of Ms. Vasant Bapat and Mrs. Shanta J. Shelke. It is further alleged that plaintiff designed a unique inlay card with a distinctive design, colour combination, layout and get up for the said audio cassette which constitutes an artistic work under the provisions of the Act. The inlay card consists of a photograph of the idol of Lord Ganesh in a particular sitting posture, the photographs of two singers, namely, Ms. Lata Mangeshkar and Ms. Usha Mangeshkar and their names mentioned together with aforementioned title of the audio cassette. On the back of the inlay card the sequence in which the songs are recorded, are listed. Since the introduction of the audio cassette in the year 1981 the plaintiff got an overwhelming response from the members of public and sales thereof has increased rapidly. In 1991, 92, 93, 94, 95, 96, the number of the audio cassettes sold was 47626, 56845, 76771, 56103, 87220 and 109766 respectively. Plaintiff has spent larges sums of money in promoting the sales of audio cassettes.

It is further alleged that the plaintiff has recently received information that the defendant has launched audio cassette in the market entitled GANPATI AARTI ASHTVINAYAK GEETE which is identical to that of the plaintiff. Design, colour scheme, get up and layout of the defendants audio cassette is deceptively and confusingly similar to that of the plaintiff. Further, all the songs of the defendants cassette appear in an identical sequence as they appear on the plaintiffs cassettes. Defendant has thus infringed the copyrights held by the plaintiff.

It is stated that in August 1993 the plaintiff had received a letter purportedly sent under Section 52(1)(j) of the Act from the defendant wherein the defendant clearly acknowledged that the plaintiff is copyright owner in the "literary and musical" works of 5 of the 15 works which feature in the defendants cassette. Alongwith the said letter the defendant had enclosed a cheque for Rs. 2,230/- towards the making of 5000 cassettes. However, that cheque was returned by the plaintiff alongwith the letter dated 6th August, 1993 and the plaintiff particularly informed the defendant that it did not wish to permit the defendant to make version recordings of the songs in which the plaintiff owns copyright. Prayer clause of the IA runs thus :-

"It is therefore most respectfully prayed that :

The defendants, its directors, proprietors, partners, servants, agents, representatives, distributors and assigns be restrained by an interlocutory injunction from issuing its sound recording :

(i) using inlay cards which are deceptively and confusingly similar to the inlay cards used by the plaintiff or in any other manner whatsoever, passing off its goods as and for the goods of the plaintiff;

(ii) using inlay cards which are deceptively and confusingly similar to the inlay cards used by the plaintiff or in any other manner whatsoever, passing off its goods as and for the goods of the plaintiff;

(iii) in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity.

The Defendants, its directors, proprietors, partners, servants, agents, representatives, distributors and assigns be restrained from issuing any sound recordings which infringe the copyrights of the plaintiff."

In IA No. 9007/97 under Order VI Rule 17 read with Section 151 CPC which was allowed by the order dated 3rd October, 1997, the plaintiff was permitted to further take up the following reliefs by way of ad interim injunction :-

(A) The defendants, its directors, proprietors, partners servants, agents, representatives, distributors and assigns be restrained by permanent injunction from issuing its sound recording :

(i) using the title " GANPATI AARTI ASHTVINAYAK GEETE " or any other title deceptively or confusingly similar to "GANPATI AARTI ASHTVINAYAK GEETE".

In the amended reply to the plaintiffs application under Order XXXIX Rules 1 and 2 read with Section 151 CPC it is denied that the plaintiff introduced in market the audio cassette titled GANPATI AARTI ASHTVINAYAK GEETE in or about 1981 as alleged. According to the inlay card of the plaintiffs casette first year of its publication is 1987. It is alleged that as the titles are not protected under the law, plaintiff cannot claim any copyright in the aforesaid title. The plaintiff has failed to mention the sale figures of the cassettes since 1981 and also the money spent in promoting sales of audio cassettes. It is stated that the defendant launched its cassettes GANPATI AARTI ASHTVINAYAK GEETE in the month of August 1993 and this fact was within the knowledge of the plaintiff. Inlay card of the cassette of the defendant is entirely different from that of the plaintiff. Plaintiff has suppressed the correspondence exchanged between the parties through the letters dated 19th December, 1991, 19th June, 1993 and 29th July, 1993 pertaining to the subject work. Plaintiff has further suppressed that it had received amount of royalty vide defendants cheque Nos. 736908 dated 17th December, 1991 for Rs.3,214.24, 776170 dated 18th June, 1993 for Rs. 3,647/- and 777199 dated 29th July, 1993 for Rs. 2,230/- alongwith the notice (s) of intention dated 19th December, 1991, 19th June, 1993 and 29th July, 1993 respectively as required under Section 52(1)(j) of the Act. It is denied that the defendant is passing off its goods in public as that of the plaintiff, as alleged.

In the rejoinder filed to the reply it is inter alia stated that July 29, 1993 is the only letter which pertains to said GANPATI AARTI ASHTVINAYAK GEETE.

Main submission advanced by Sh. Mukal Rohtagi, Sr. Advocate appearing for defendant was that copyright author of the work in this case is the singer - Ms. Lata Mangeshkar and ms. Usha Mangeshkar from whom the plaintiff has derived its right. Since the singer of the defendants audio cassette is Ms. Anuradha Paudwal, there is no infringement of copyright by the defendant.

As a part of this submission it was further argued by him that the moment a copyright holder exploits the rights given to him under Section 14 of the Act he looses the copyright and is only entitled to a statutory fee under Section 52(i)(j) of the Act and after the despatch of cheque for an amount of Rs. 2,230/- alongwith the notice dated 29th July, 1993 to the plaintiff, the defendant was automatically authorised to make the sound recordings of the cassette under the title GANPATI AARTI ASHTVINAYAK GEETE. This submission was, however, strongly refuted by Sh. Chander M. Lall appearing for plaintiff.

Before adverting to the legal position in the matter letter dated 29th July, 1993 sent by the defendant to the plaintiff and reply thereto dated 6th August, 1993 sent by the plaintiff to the defendant need to be referred. Photostat copies of both these letters have been filed alongwith list of documents dated 23rd September, 1997 by the defendant. Body of the letter dated 29th July, 1993 reads thus :-

"In accordance with the provisions of Section 52(1)(j) of the Copyright Act, 1957 read with Rule 21 of the Copyright Rules, 1958 please take notice that we intend to make Records featuring the following Literary and Musical Works, of which you are, to the best of our knowledge, owners of Copyright.

a) Particulars of the work in respect of which Records are to be made :

S.No.WorkTitleMusic

1.Bal Bhaktalaagi Tuchi Aasra Ganpati AartiGeete Yashvant DevAshtavinayak

2.Chal Sadhka Chal Yaatrika-do--do-

3.Jhul Jhul Waahe-do--do-

4.Gannayaka Shubhdayaka-do--do-

5.Rachilya Rishi Munini-do--do-





b) We do not propose to make any alterations in or omissions from the Work unless such alterations and omissions are responsibly necessary for the adaptation (s) of the Work to Record in Question.

c) Name, address and nationality of the owner of the Copyright in the Work As mentioned above : Indian.

d) Particulars of the Records made previously recording in the Work :

Record No. Year of Publication

Cassette No. SPHO 45092 <_><_><_>1992

e) We intend to make 5,000 (Five Thousand Only) Records containing above stated Musical Work(s) to be used in different combinations.

f) We are enclosing our Cheque No.777199 Dt. 29.7.93 for Rs.2230/- by way of royalty for the making of the said Records in accordance with the rates fixed by the Copyright Board in this behalf.

A copy of this letter is being sent to the Copyright Board. Kindly acknowledge and send us your stamped receipt for our records."

Body of the reply dated 6th August, 1993 reads as under :-

"We have received your letter SCI : R-420:93:2871 of the 29th July 93 expressing your intention to make alleged version recordings of songs released by us on record and to the cheque for Rs. 2,230 which you sent by way of alleged royalty.

Kindly note that we do not permit you to make version recordings of songs on our record in which we hold copyright. If despite this, you manufacture or market version records of any songs on our record, we reserve our right to take appropriate action against you at your risk as to the costs and consequences.

We, therefore, return herewith the Canara Bank Cheque No.777199 dated 29.7.1993 for Rs. 2,230/-."

As is manifest from the said reply cheque for Rs.2,230/- sent alongwith the letter dated 29th July, 1993 towards royalty was returned by the plaintiff to defendant and defendant was specifically told that it was not being permitted to make the version, recordings of the songs in which the plaintiff held the copyrights.

In clause (9) of Section 2 of the Act "work" has been defined to mean (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; and (iii) sound recording. In clause (o) of the said Section "literary work" has been defined to include computer programmes, tables and compilations including computer data basis. Clause (p) says that musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. Clause (xx) defines "sound recording" as recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by which the sounds are produced. In Clause (m) "infringing copy" has been defined thus :-

"Infringing copy" means,

(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;

(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

(iv) in relation to a programme or performance in which such a broad cast reproduction right or a performers right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance.

if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act."

Under Section 13 of the Act copyright subsists in respect of (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. Clause (a) of Section 14 which is relevant provides as under ;-

"For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely :-

(a) in the case of a literary, dramatic on musical work, not being a computer programme,

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi) "

Section 18 deals with the assignment of copyright while Section 19 speaks of mode of assignment. On a combined reading of both these Sections it is evident that assignment of copyright in any work can only be made in writing signed by the assignor or his duly authorised agent. Section 30 of the Act deals with the licences by owners of copyright. Licences in respect of the work like assignment can be made only in writing signed by the licensor or his duly authorised agent. Section 52(1) (j) on which heavy reliance has been placed on behalf of the defendant provides thus:-

"The following acts shall not constitute an infringement of copyright, namely :-

(j) the making of sound recordings in respect of any literary dramatic or musical work, if--

(i) sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work;

(ii) the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf :"

In the present case three distinct copyright works are involved. These are literary works (lyrics), musical works and sound recordings (see : clauses (y), (o), (p) and (xx) of said Section 2). Needless to repeat that in the aforesaid letter dated 29th July, 1993 defendant has categorically acknowledged the copyright of the plaintiff in literary and musical works. Aforesaid Section 52(1)(j) has to be read in harmony with the aforementioned provisions of the Act. Considering all these provisions together, I am not inclined to accept the said submission advanced on behalf of the defendant that on despatch of the cheque for Rs.2,230/- towards royalty which was indisputably returned by the plaintiff simultaneously intimating that it did not permit the defendant to make the version recording of their songs, the defendant automatically became entitled under Section 52(1)(j) to make the sound recordings of the work of the plaintiff and the plaintiff is only entitled to statutory fee. I am also not inclined to agree with the other limb of the submission referred to above made on behalf of the defendant that there is no infringement of copyright within the meaning of Section 51 of the Act as the singers of the said work of the plaintiff and the defendant are different. Plaintiff has thus prima facie made out a strong case for issue of the ad interim injunction restraining the defendant from issuing any sound recordings which infringes the copyrights of the plaintiff. Obviously, balance of convenience in the matter is in favour of the plaintiff and it is the plaintiff who is likely to suffer irreparable injury if the ad interim injunction to the above effect is not granted in its favour. Having arrived at this conclusion, I need not examine, the merits of the other reliefs claimed by the plaintiff in the IA.

For the foregoing discussion, defendant, its directors, partners, servants and agents are restrained from issuing any sound recordings of the audio cassette titled GANPATI AARTI ASHTVINAYAK GEETE which infringes the copyrights of the plaintiff till the disposal of the suit. The application is disposed of accordingly.