IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:03.03.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL O.S.A.No.19 of 2002 Lahari Recording Company Limited, Rep. By its Managing Director ... Appellant/5th Defendant Vs. 1.Music Master Audio Video Manufacturing Co.(P) Ltd., Rep: by its Director, Mr.Ghanshyam 2.Raja Music Universal, rep: by its Partner R.Jeevaraja, No.12, Padmanabhan Street, T.Nagar, Chennai-600 017. 3.Bharat Film Distributors, rep. By its Managing Partner M.S.Guhan, No.38, Arcot Road, Vadapalani, Chennai-600 026. 4.The Master Recording Company, No.97-C, III Street, Kumaran Colony, Vadapalani, Chennai-600 026. 5.S.Eknath, Proprietor, Eknath Audio, 193, Anna Salai, Chennai-600 006. ... Respondents/Plaintiff and (Respondents 2 to 5 are not necessary Defendants 1 to 4 parties for this appeal. Hence, they are given up) Prayer: Appeal filed under Order XXXVI Rule 1 of the O.S. Rules and Clause 15 of the Letters Patent Appeal against the Judgment and Decree dated 7th March, 2001 in C.S.No.385 of 1998 passed by the learned Single Judge of this Court. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mrs.Meera Gupta For M/s.Surana and Surana For 1st Respondent : Mr.K.Harishankar For Mr.C.Ramesh JUDGMENT M.VENUGOPAL,J. This Original Side Appeal is preferred by the appellant/5th defendant as against the Judgment and Decree passed by the learned single Judge on 07.03.2001 in C.S.No.385 of 1998. 2.The first respondent/plaintiff has filed a suit C.S.No.385 of 1998 praying for a declaration that the first respondent/plaintiff is the absolute owner of limited copy right viz., the audio rights in the pictures described in Schedule A and B of the plaint for perpetual period to commence from the date mentioned against each picture and for permanent injunction restraining the respondents/ defendants, their men, agents, servants or any other person acting on their behalf from infringing the plaintiff's limited copy right. 3.After contest, the learned single Judge in the suit has granted the declaratory relief that the plaintiff is entitled to the relief of limited copy right viz., audio right in respect of manufacturing and marketing audio cassettes of the films mentioned in A and B Schedule of the plaint except two pictures in respect of which a compromise decree has been passed and also granted the relief of permanent injunction restraining the respondents/defendants from infringing the first respondent/plaintiff's limited copy right viz., the audio rights in respect of the pictures mentioned in A and B Schedule of the plaint except two pictures. 4.Aggrieved against the said Judgment and Decree passed by the learned single Judge in C.S.No.385 of 1998 on 07.03.2001, the appellant/5th defendant has filed the present appeal before this Court. 5.According to the learned counsel for the appellant/ 5th defendant, the learned single Judge has not taken into consideration the averment made in the written statement and the evidence of D.W.1 to the effect that the appellant/5th defendant has stopped manufacturing cassettes after the expiry of the copy right period and therefore, erred in granting the permanent injunction and that there is no proof that the appellant/5th defendant has infringed the https://hcservices.ecourts.gov.in/hcservices/ copy right of the first respondent/plaintiff and when the appellant/5th defendant has not manufactured and marketed the audio cassettes, certainly no relief of permanent injunction could have been granted on the facts and circumstances of the case and in any event the relief of permanent injunction ought not to have been granted against the appellant/5th defendant and therefore, prays for allowing the appeal. 6.The plea of the appellant/5th defendant is also to the effect that the first respondent/plaintiff ought not to have filed a single suit against all the defendants in respect of the films covered under A and B Schedule of the plaint, inasmuch as the appellant/5th defendant is concerned, only with 42 films described in serial No.1 to 42 in A Schedule of the plaint. 7.The appellant/5th defendant also takes a stand that since the first respondent/plaintiff claims rights as against defendants 2 to 5 as per Ex.A.1-Agreement in respect of various pictures, there cannot be either misjoinder of parties or misjoinder of causes, in the eye of law. 8.The first respondent/plaintiff in the plaint has averred that they acquired exclusive rights to make and release copies in the form of Audio Cassettes and Compact Discs from the second respondent/first defendant who were holding the rights in the pictures, the details of which are given in the Schedule as per Agreement dated 12.06.1997 for valuable consideration and the said rights were assigned to the first respondent/plaintiff for exploitation in India and that the 5th respondent/4th defendant seems to have assigned audio rights in certain pictures to the appellant/5th defendant and that the first respondent/plaintiff understands from the second respondent/first defendant that the assignment in favour of the appellant/5th defendant came to an end by March 1997 and that the appellant/5th defendant inspite of the assignment period which has come to an end, is continuing to exploit the audio rights in the pictures described in the plaint schedule and the said exploitation made by the appellant/ 5th defendant is illegal and in infringement of first respondent/plaintiff's limited copy right and therefore, the first respondent/plaintiff has filed the suit for declaration of its limited copyright and for the relief of permanent injunction restraining the defendants. 9.The appellant/ 5th defendant in the written statement filed has stated that it has not exploited the audio rights in the pictures described in the schedule to the plaint or any of them and that the allegation that the appellant/ 5th defendant is illegally https://hcservices.ecourts.gov.in/hcservices/ marketing the cassettes is also denied and that the appellant/ 5th defendant has stopped exploiting, manufacturing or marketing after the period of its assignment was over and however, the cassettes were already in the market with various dealers and whatever cassettes were already in the market with a dealers were beyond the control of the appellant/ 5th defendant, since the distributors will be selling them everyday and that as against the appellant/ 5th defendant, there is no cause of action and that suit is liable to be dismissed. 10.The learned counsel for the first respondent/ plaintiff contends that when there is an infringement of the right of first respondent/plaintiff, then the first respondent/plaintiff is entitled to file a suit praying for a relief of declaration and injunction and in support of his proposition relied on AIR (32) 1945 Allahabad 55 Om Prakash and another V. Pt.Radhey Shyam Kathawachak, whereby and whereunder it is laid down as follows: "The language of S.2, Imperial Copyright Act, which defines the infringement of copyright is wide enough to include not only a sale of the copyright by a person not entitled to sell the same but also an attempted sale. Accordingly an advertisement by the defendant claiming a right in a copyright which was owned by the plaintiff and offering to sell the same constitutes an infringement of the right and the plaintiff can in such a case claim a declaration and if necessary an injunction under S.13: (1914) 1.K.B. 395 and (1926) 2 K.B. 474, Rel. on". 11.He also relied on the observation made in the aforesaid decision at page 57 which runs as follows: "Under S.1, sub-s(2), Imperial Copyright Act, 'copyright' means the sole right to produce or reproduce the work etc. Under S.2, Imperial Copyright Act, a "copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright ..." 12.The learned counsel for the first respondent/ plaintiff pressed into service the observation made in the aforesaid decision with reference to Halsbury's Laws of England, Hailsham Edn. Vol.7, para. 891 at p.575, wherein it is observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "It is also an infringement of copyright to grant or purport to grant to a third person the-right to do an act which, if done, would infringe copyright, whether the intention is that the grantee shall do the act on his own account, or only on account of the grantor. Thus it is an infringement of copyright to let the right of performing a cinematograph film in public, to advertise a proposed exhibition of a cinematograph film, to purport to sell the right to print and publish a manuscript, or to sell a gramophone record with a view to its public performance, where the acts contemplated would, if done, constitute infringements of copyright". 13.He also drew attention to (1914) 1 K.B. 395 (1914) 1 K.B. 395 Monckton V. Pathe Freres Pathephone Ltd., Buckley L.J at page 403, wherein it is held as follows: "..... copyright includes the sole right to authorize the performance of the work. The seller of a record authorizes, I conceive, the use of the record, and such user will be a performance of the musical work. This consideration seems to show that sub-2. itself is not confined to making but extends to sale". 14.In this connection, it is useful to refer to the evidence of P.W.1-Dayalan, Manager of the first respondent/ plaintiff Company to the effect that the second respondent/ first defendant was having copyright over various films with regard to audio right and that the first respondent/ plaintiff and the second respondent/first defendant have entered into an agreement on 12.06.1987 whereby the first respondent/plaintiff has purchased the audio rights for about 109 Tamil and Telugu pictures which are mentioned in the schedule of the Ex.A.1 agreement and in pursuance of the same, the first respondent/plaintiff are manufacturing audio cassettes and that the second respondent/first defendant has handed over to the first respondent/plaintiff the Master cassette for these pictures and that the second respondent/first defendant has previously sold the copyrights in respect of audio rights, in regard to those films, previously to the defendants 2 to 5 for a period of five years, which has come to an end in 1997 prior to their agreement and that the defendants continued to manufacture audio cassettes including the first respondent/plaintiff's cassettes and that the first respondent/plaintiff has produced the photo copies of the agreement entered into between the second respondent/first defendant with D2 to D5 and that he first respondent/plaintiff has paid Rs.22,50,000/- for assignment of copy rights, audio rights for pictures mentioned and therefore pray for injunction restraining the defendants from infringing their copy rights. https://hcservices.ecourts.gov.in/hcservices/ 15.D.W.1-R.Kannan, the Accountant of the appellant/5th defendant has deposed that the appellant and the 5th respondent/4th defendant has entered into an agreement in respect of audio rights for 42 pictures mentioned in the plaint schedule and that the period has come to an end in July 1980 and thereafter, the appellant/5th defendant did not manufacture any audio cassettes in respect of both and that neither the first respondent/plaintiff nor the 5th respondent/4th defendant has ever sent any notice that the appellant is manufacturing cassettes even after the expiry of the agreement period. 16.It is significant to point out that neither P.W.1-Dayalan nor D.W.1-R.Kannan has been cross examined. 17.Generally, it is to be pointed out that the vital relief against infringement is one of injunction. Admittedly, the remedy of granting injunction is in the discretion of the Court and the Court has to weigh the possible damage to the party if an injunction is not given against the possible damage to the defendant if it is granted. Therefore, it is quite evident that once the infringement and its continuance is proved, a party as plaintiff will generally be entitled to the relief of injunction. However, the relief of injunction will not be granted if the damage caused to the defendant by granting the injunction be out of all proportion to the seriousness of the infringement or to the possible damage to the plaintiff. 18.In AIR 1979 Madras at page 56 R.M.Subbiah and another V. N.Sankaran Nair and another, it is laid down as follows: "Injunction being an equitable remedy, which is granted by a Court in exercise of its judicial discretion has to be considered from various facets which arise from a particular set of circumstances in each case. There may be cases in which the grant of an injunction temporary or permanent will only meet the ends of justice and an alternative safeguard for the preservation of the rights of the challenging party cannot at all be thought of. There may be also cases where the remedy of injunction has to be made flexible and adjustable to the situations arising in each case. A rigid invocation without contemplating elasticity in the application of the rule as to the grant of injunction might sometimes result in hardship which cannot later be cured". https://hcservices.ecourts.gov.in/hcservices/ 19.As a matter of fact, before the Court exercising his jurisdiction to grant the relief of injunction will also to be satisfied that the inconvenience or comparative mischief which is likely to arise from withholding an injunction will be greater than that which is likely to arise from granting it. 20.If an individual without the consent or licence of the owner of the copyright does or authorise the doing of an act to issue the copies of the work to the public not being copies already in circulation, or distribute infringing copies either for the purpose of trade or to such an extent as to effect prejudicially the owner of the copyright or to reproduce the work in any material form including the storing of it in any medium by electronic means he will be infringing the copyright work as per Section 51 read with Section 14(a) and Section 14(b) of the Copyright Act, 1957. No doubt innocence is no defence to a charge of infringement of copyright and the offence is completed even if the offender authorises the infringement innocently as per decision AIR 1930 Privy Council page 314 Performing Right Society Limited V. Urban District Council of Bray. 21.In F.Hofmann – La Roche A.G. V. Secretary of State for Trade and Industry (1975) A.C. 295, H.L., a higher test for proving a strong prima facie case is emphasised. However, in Cyanamid Company V. Ethicon Limited (1975) A.C. 396, H.L., the higher test of strong prima facie is replaced with the test of whether there is a serious question to be tried. 22.It is not out of place to point out that there are two types of damages available to the owner of a copyright, 1.as per Section 55 for an infringement and the other under Section 58 for conversion. Only if an infringement is established, damages can be presumed. General damages does not require specific proof. Whereas special damages should be pleaded and proved. Moreover, the Copyright Act, 1957 does not contain any specific provision for additional damages in case of flagrant infringement. 23.It is useful to refer to Ex.A.1-Agreement dated 12.06.1997 entered into between the second respondent/first defendant (rights holder) and the first respondent/ plaintiff company (assignee) which refers to the licence period of five years, the rights to manufacture and the sell prerecorded cassettes to various companies such as Raja Cassettes Recording Company, Eknath Audio, Bharat Film Distributors and the Master Recording Company and that the rights holder is the copyright owner of, having acquired them from various producers, the audio rights of films for which it had licenced out for a period of five years etc. https://hcservices.ecourts.gov.in/hcservices/ 24.In an agreement dated 24.02.1992 between the M/s.Raja Cassette Recording Company and the 5th respondent/ 4th defendant, M/s.Eknath Audio clause 6 speaks of the Assignors declaration (Raja Cassette Recording Company) that they will not exploit the market, or otherwise deal with the Audio Rights, thus granted to the Assignee (5th respondent/4th defendant) during the period of the agreement. 25.The Agreement dated 17.06.1993 entered into between the appellant/5th defendant and the 5th respondent/4th defendant refers to the averments which are as follows: "WHEREAS the party of the second part has acquired Indian Rights of the audio rights, manufacturing and marketing of Audio Cassettes and Gramaphone recording only with respect to various movies from various producers under different dates of agreements for a period of five years from the date of original agreement to the party of the second part (5th respondent/4th defendant). The party of the second part (5th respondent/4th defendant) hereby grant, assign and agree to transfer to the party of the first part absolutely free from all encumbrances for the remaining period of five years in the party of the second part in respect of the films set out in the Annexure to make Gramaphone records and Audio Cassettes of songs and dialogues for Indian Territory only, in consideration of the party of the second part having made a payment of Rs.16,99,000/- The right vested in the party of the second part to the party of the first part is detailed in the Annexure to this agreement". Further, the clause 4 and 5 of the aforesaid agreement enjoin as follows: "4.It is also agreed between the parties that the party of the second part shall not from this date of agreement make any further records and cassettes of songs and dialogues from recording and shall also return to the party of the first part all the unused cassettes of total No. for the rates and value agreed upon between the parties of Total amount 2.81,711.5 and also made the payment by way of cheque No.653466 and 653467 dated 3.7.93 and 10.9.93 drawn on Federal Bank Limited, Bangalore. 5.The party of the second part also agrees that they shall destroy all the unused labels and also agrees not to use the same from the date of this agreement". https://hcservices.ecourts.gov.in/hcservices/ 26.In C.S.No.385 of 1998 a decree was passed by this Court on 17.04.2000 as against the second defendant as per the clauses found therein as per the memorandum of compromise and as against other defendants and suit was ordered to be pending. 27.In C.S.No.385 of 1998 on 17.11.2000 this Court has dismissed the suit against the second defendant since an understanding was arrived at between them and that the said suit was adjourned to 24.11.2000. 28.As far as the present case is concerned that though the first respondent/plaintiff has taken a plea in the suit that the appellant/5th defendant after its period of assignment expired is continuing to exploit the audio rights in the pictures described in the schedule to the plaint by infringing the first respondent/plaintiff's limited copyright and the same being denied by the appellant/5th defendant stating that it has stopped exploiting, manufacturing or marketing after period of its assignment was over and further that the appellant has stopped manufacturing cassettes after the expiry of the period of its copyright, there is no evidence of manufacturing or marketing or selling the audio rights or audio cassettes by the appellant/5th defendant after the expiry of assignment period and further that whatever that were in the market that will be sold by the distributors every day, the first respondent/plaintiff is not entitled to claim the relief of permanent injunction in so far as the appellant/5th defendant is concerned, in our definite conclusion. 29.Regarding the misjoinder of cause of action or the misjoinder of party, it is to be noted that the plaintiff can join several cause of action in one suit to avoid multiplicity of proceedings and as far as the appellant/ 5th defendant is concerned, the suit filed by the first respondent/plaintiff is maintainable in law notwithstanding the fact that the appellant/5th defendant is concerned only with 42 films mentioned in Serial No.1 to 42 in Schedule A to the plaint. 30.Therefore, in sum and substance, there is no illegality in the suit filed by the first respondent/ plaintiff joining several causes of action in one suit against the defendants and the same is permissible under Or.1 R.3 and Or.2 R.3 of C.P.C. which postulate that the question of joinder of parties also involves the joinder of causes of action as per decision (1999) 3 SCC 457 Isuar Bhai C.Patel alias Bachu Bhai Patel V. Harihar Behra and Another. In https://hcservices.ecourts.gov.in/hcservices/ regard to the declaratory relief that the first respondent/plaintiff is the absolute owner of copyright, the finding of the learned single Judge in this regard in so far as the appellant/5th defendant is concerned, we are not interfering with the same. However, in regard to the relief of permanent injunction as against the appellant/5th defendant, we are of the opinion that the first respondent/ plaintiff has not established conclusively to satisfy the conscious of this Court that the appellant/5th defendant has manufactured or marketed or sold the audio rights or audio cassettes after the expiry of the assignment period and in that view of the matter, we set aside the Judgment of the learned single Judge granting the relief of permanent injunction against the appellant/5th defendant and dispose of the present appeal in above terms. Bearing in mind the facts and circumstances of the case, there shall be no order as to costs. sgl Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To The SAR, Original Side, High Court, Madras. 1 cc to M/s.Surana & Surana, Advocate, SR.11695 1 cc to Mr.C.Ramesh, Advocate, SR.11833 la (co) dv/20.3. Judgment in O.S.A.No.19 of 2002 https://hcservices.ecourts.gov.in/hcservices/