No subject

mere acceptance of remuneration or delivery of
manuscript does not constitute an assignment of
copyright. It is also clear that in determining,
whether there is only a licence to print, publish and
sell copies or there is partial assignment of
copyright, the Court has to look at the real meaning
of an agreement, rather than the particular choice of
words of the parties.

Section 19 deals with 'Mode of assignment'. From the
comments it is clear that the assignment of Copyright
in any work shall-

(i) identify such work, and 

(ii) specify the rights assigned, the duration,
territorial extent of such assignment and the amount
of royalty payable, and 

(iii) be in writing signed by the assignor or by his
duly authorised agent.

As far as licence is concerned, Chapter VI of the Act
deals with it. However, Sections 30, 30A and 31 are
relevant sections for the purpose of this case which
deal with 'Licenses by owners of copyright',
'Application of Section 19 & 19A' and 'Compulsory
licence in works withheld from public.

Section 51 deals with 'when copyright is infringed'.
Section 51 shall be read longwith Section 14 of the
Act which deals with the meaning of copyright which
says that '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:

Section 58 deals with 'Rights of owners against
persons possessing or dealing with infringing copies'.

Section 2 (f) deals with "cinematograph film" and
Section 2 (m) defines "infringing copy".

6. The learned counsel for the respondents however
argued that there is no dispute in regard to the facts
as stated by the appellant in this case. On the other
hand, he submitted that Section 51 deals with the
question as to when the copyright is infringed.
Section 52 on the other hand is an exception to
Section 51. Section 52(j) reads this:

(1) 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:"

As indicated above, there is no dispute that the
respondent has complied with the requirement of
Section 52 (j) (ii) r/w Rule 21 of the Rules by
issuing a notice of his intention to make a sound
recording 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 of Rs. 1,500/ each in respect of
all such sound recordings to be made by him and Rs.
1,500/- is the rate fixed by the Copyright Board in
this behalf. Sub-clause (ii) of Section 52 shall be
read in conjunction with Rule 2 of Copyright Rules,
1958, which deals with making of records.

7. The learned counsel for the appellant has
vehemently argued that if Section 52 (j) (ii) is read
separately, the very right of the appellant is deemed
to have been infringed as admittedly the respondents
have not obtained the permission of the appellant who
is the owner of the copyright. He further emphasised
that by merely sending a sum of Rs. 1,500/- towards
royalty and expressing his intention by notice to
produce the cassettes if held to be sufficient
compliance, the appellant cannot proceed against the
respondents even if it produces more than 1000 copies
and in actual fact, he submitted that under the guise
of sending Rs. 1,500/- towards royalty, the
respondents have produced more than 1000 cassettes and
the appellant is left without any remedy. Therefore,
he stated that taking into consideration the fact that
it is absolutely necessary for the respondent to
obtain prior consent or assignment by a valid
agreement. Section 52 (j) (i) & (ii) shall be read
together to give a full meaning and object to the Act.
According to him, only after compliance of Section 52
(j) (ii) r/w Rule 21, one has to wait for the licence
or consent of the owner of the right in the work. It
is absolutely necessary to mention here that under the
original Act, the word 'and' was added after the words
'in the work' under Sub-clause (i) of Clause (j) of
Section 52 and preceding Sub-clause (ii). However, by
the amended Act of 38 of 1994 which came into effect
from 10.5.95 the word 'and' has been deleted. From
this it is abundantly clear that the legislature
intended that these two provisions of law shall be
read separately thereby giving a meaning to the effect
that the exemption for infringement of copyright is
made available either by sending records of that work
is made by or with licence or consent of the owner of
the right in the work or the person making sound
recordings notice of his intention in compliance with
Sub-clause (2) of Clause (j) of Section 52 which is
re-produced. In consonance with this Section Rule 21
has been framed. From a perusal of Rule 21 it is clear
to obtain consent or licence, a person shall comply
with the necessary requirements of this rule.
Therefore, it is dealing only with Clause (j) of
Sub-section (1) of Section 52 and it does not refer to
Sub-clause (j) of Section (ii) of Section 52. If the
respondent were to take shelter under the Clause (j)
in Sub-section(1) of Section 52, he has to wait till
the consent or licence is given. The assignment of
copyright can be obtained by written agreement as
provided under Section 19. Licence or consent can be
obtained under Section 30 of the Act. If the licence
or consent is obtained under Section 30, naturally the
licencee is exempted from proceeding against him for
infringement of copyright. In the event such licence
or consent is not given, even after compliance of the
requirement of Section 52 (1) (j) (ii) within 15 days,
I am of the opinion that the licence is deemed to have
been granted and the person producing the cassette
after the expiry of 15 days is not said to have
infringed copyright. If Section 52 (j) (i) & (ii) arc
read conjointly, Section 52 (j) (ii) becomes redundant
and such narrow interpretation cannot be given to
defeat the very object and purpose of Section 52 (1)
(j) (ii). From a perusal of Rule 21 it is clear that
it is framed so as to enable a person intending to
make a sound recording to obtain consent or licence
from the copyright owner by complying with the
requirements of sending a notice of such intention to
the owner of copyright and to the Registrar of
Copyrights giving 15 days notice in defence of making
the sound records and also paying the required amount
and the rate of royalty is as fixed by the Copyright
Code in this behalf.

8. The learned counsel for the appellant has
vehemently argued that if the respondent is allowed to
make recording without there being a licence or
consent of the owner, the owner cannot proceed against
the respondent even if he makes more than 1000
cassettes in each case, having paid Rs. 1,500/- only
to safeguard the interest of the owner of the
copyright, a provision is made enabling the copyright
owner to examine the records maintained by the maker
to find out as to whether he has produced more than
what is allowed as per the royalty paid by him. It is
not in dispute that the royalty is not a thing to be
bargained as it is fixed by the copyright board with
particulars of the inlay cards. Section 52 (j) (ii)
does not require pre-requisite consent from the owner.
The owner is entitled for royalty fixed and a notice
of the intention of the respondent to make the
cassettes. It is also necessary to mention that the
intention of the respondent is not copying but making
sound recording. Admittedly, the musician is
different, singer is different, only the respondent is
using the lyrics owned by the appellant. Section 52
(j) (ii) does not go into the question of negotiation
thereby consent is not required. Section 52 (j) (i)
recognises the right of copyright owner. The
respondent has made an independent recording. The
recording of respondent and also the appellant are
different. Quality of sound recording is also
different from each other. Section 20 gives the right
to owner for 60 years which is subject to the
provisions of Section 20 which deals with transmission
of copyright in manuscript by testamentary its
position. Section 14 (a) (iii) reads thus:

"For 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:-

(iii) to perform the work in public, or communicate it
to the public;"
As far as this case is concerned, the 3rd clause is
relevant. Therefore, there is no dispute with regard
to application of this provision but Section 14 is
made subject to the provisions of this Act i.e.
including the exception provided under Section 52 (j)
(i). In this case, as indicated above, the respondent
has complied with the requirement of Section 52 (j)
(ii) and the refusal letter was received by the
respondent only after a lapse of 15 days. Therefore,
since the time of 15 days is mentioned in Rule 21, it
has to be construed that there is a deemed provision
of having given consent. Therefore, the Court below is
right in holding that Sub-clauses (i) & (ii) of
Section 52 (1) (j) shall be read disjunctively and not
co-jointly. Therefore, the learned counsel for the
respondent submitted that Section 52 (1) (j) (ii) is
an exception to the general provisions of this Act.
This argument according to me is well founded.

9. The learned counsel for the appellant further
argued that from a perusal of the entire act that the
right is given only to the copyright owner to go to
Court either by filing a civil suit or the criminal
case against the person who is infringing the
copyright. This argument cannot be accepted. The
respondent has complied with the requirement of
Section 52 (ii) (j) and his right has to he protected
and there is no prohibition in the Act prohibiting the
respondent from filing the suit. The
plaintiff/respondent only sought for injunction
against the appellant from seizing the cassettes
produced by him and naturally if these cassettes were
seized as apprehended by the respondents, they will be
without any remedy which is not the object of the Act.
If the respondent satisfies the requirements of the
relevant provisions of law, the same Act also provides
a right to protect his interest. Therefore, this
argument also is unsustainable.

10. The learned counsel has vehemently argued that the
inaly cards furnished to the appellant and also
produced in this case are misleading to the general
public as they would be under the impression that it
is the records produced by the appellant. This
question has been examined by the learned Court below
in greater detail.

11. The learned counsel for the respondents also
brought to my notice that in the front side the name
of the cassette is only mentioned with a picture of
Lord Krishna printed. On the left side of the cover in
the bottom in red colour the respondent has clearly
stated that it is printed from original sound track.
Further it is stated that the same is recorded as per
the provisions of Section 52 (j). It is specifically
stated 'not from original sound track'. The learned
counsel further argued that the photo of the original
singer also is shown which will misguide the public.
That itself is not sufficient. G.V.Atri who is the
singer of these songs with a lady singer Manjula
Gururaj is also mentioned. Therefore, there is no
possibility of the public mistaking it as the original
recording. This is not seriously disputed by the
appellant. (Paragraph 16).

12. The learned counsel for the appellant has also
drawn my attention to the decision reported in The
Gramophone Company of India Limited Versus Super
Cassette Industries Lid. (1999 PTC 2 (Del) wherein it
is held:

"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 dt. 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 royally 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 v/ho 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 .

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."