SOUMEN SEN,J. - (1.) The Court: The petitioner is the owner of sound recording and underlying literary and musical works in the said sound recordings forming part of the films produced by the said producers and/or production houses in terms of several deeds of assignment entered into between the petitioner and the said producers and/or production houses. The particulars of the feature films, in respect whereof such assignments were made in favour of the petitioner, are mentioned in paragraph 4 of the petition. The petitioner states that the defendant no.1 without obtaining necessary consent and/or payment of any consideration amount has unauthorizedly and wrongfully copied the sound recordings and underlying lyrics and music of the said songs. The matter was brought to the notice of the respondent no.2. The respondent no.2 contended that they could only stop further viewing of the said songs provided any restraint order is passed in favour of the petitioner. The petitioner has disclosed several agreements in the petition where the words 'work' and 'record' have been defined and the nature of right assigned to the petitioner by the producer has been stated. All the agreements contain same and /or similar clauses. One of such agreement dated 11th May, 1966 between the petitioner and M/s. Vijayachamundeswari Picture may be referred to for the purpose of appreciating the arguments made by the parties.
(2.) The relevant clauses of the said agreements are clauses 8, 9, and 11 which are reproduced below. "8. The Clients hereby agree that they assign their gramophone recording rights in all works to be recorded or re- recorded under the provisions of this Agreement to the Company and hereby agree further to indemnify and keep indemnified the Company in the case of such works as aforesaid from and against all actions, claims and damages which the Company may incur by reason of the recording, issue, and sale of such works. 9. In consideration of the assignment set out in Clause 8 hereof the Company shall pay to the Clients a Copyright royalty on nett sales made in any part of the world of the works recorded or re-recorded under the provisions of this Agreement calculated on the retail selling price in the country of manufacture for the time being at the following rates:- (a) In the case of a double-sided record:- (i) A work or works owned by the Clients and reproduced on any one side of a record 2 1/2% per side (ii) A work or works owned by the Clients and reproduced along with on or more other works not owned by the Clients on any one side of a record, a share proportional to the number of works of 2 1/2% per side (b) In the case of any other record, the same shall be deemed to consist of Sections, each Section comprising the equivalent of a double-sided 78 rpm record and royalty shall be calculated on the same basis as provided under (a) (i) and (ii) above on each such Section reproducing the works owned by the Clients. 11. The company shall be the owner of the original plate within the meaning of The Copyright Act , 1957 and any extensions or modifications thereof of each title recorded or re- recorded under the provisions of this Agreement at the time when such plate shall be made. The Company shall also be entitled to the sole right of production, reproduction, sale, use and performance (including broadcasting) throughout the world by any and every means whatsoever of the records of the works performed by the artistes and musicians etc., under this Agreement. The Company shall in its absolute discretion be entitled to authorise any other person, firm or corporation in any part of the world to manufacture, sell and/or catalogue records of all or any of the titles recorded or re-recorded under the provisions of this Agreement when royalties shall become payable to the Clients as mentioned in Clauses 7 and 9 hereof."
(3.) The petitioner submits that the respondents have wrongfully copied the sound recording and the underlying lyrics and music of the petitioner's sound, particulars whereof are given in Annexures C and E of the petition without the petitioner's consent or authority. It is alleged that the respondents have copied the sound recordings and the underlying lyrics and music of the petitioner's said sound in its entirety. The respondents have also copied the tunes of musical work of the petitioner's said songs thereof amounting to substantial reproduction of the said musical works.;