Biswanath Somadder, J. - (1.) THE present appeal arises out of a judgment and order dated 26th April, 2006, passed by the Hon'ble First Court, whereby it refused to pass any order and was pleased to dismiss the Plaintiffs interlocutory application for injunction, wherein the following principal prayers were made: (a) The Respondent, its men, servants, agents and/or assigns be restrained from compelling the Petitioner to obtain any licence or demanding any payment from the Petitioner; (b) The Respondent be restrained from making threats of initiating proceedings against alleged infringement and/or threatened infringement of alleged copy right; (c) The Respondent, its men, servants, agents and/or assigns be restrained from initiating any proceedings in furtherance of its aforesaid and other threats against the Petitioner and other broadcasters similarly situate; ....
(2.) THE facts of the case, in brief, are stated hereinbelow: (i) The Plaintiff - Radio Today Broadcasting Ltd. (hereinafter referred to as 'RTB') instituted the suit against the Defendant - Indian Performing Rights Society Ltd. (hereinafter referred to as 'IPRS') praying, inter alia, for the following reliefs: (a) A declaration that the Defendant and/or its members have no right to issue licences or claim payment of licence fees in relation to the broadcasting of works embodied in sound recordings administered by PPL and other music companies; (b) Declaration that the Defendant and/or its members have no copyright in respect of any work comprising of and/or underlying the sound recordings in relation to which licences are granted by phonographic performance Ltd. and other music companies; (c) Declaration that the Plaintiff is not obliged to obtain licence from the Defendant or to make payment of any fees to the Defendant in relation to works broadcast by the Plaintiff; (d) Declaration that the threats made by the Defendant to the representatives of the Plaintiff is wrongful; (e) Declaration that the Plaintiff is not and will not be infringing any legal right of the Defendant; (f) A Decree of perpetual injunction restraining the Defendant and/or its members from making any wrongful threats or initiating proceedings against the Plaintiffs; (g) A Decree of perpetual injunction restraining the Defendant and/or its members from in any way or manner claiming any payment from the Plaintiff for the proposed broadcasting of sound recordings administered by Phonographic Performance Ltd. and other recording companies; (h) A Decree of permanent injunction restraining the Defendant and/or its members, servants, agents and/or assigns from initiating any proceeding against the Plaintiff and/or its officers in relation to the matters which are the subject matter of the instant suit; (ii) RTB also prayed for leave under Order 1 Rule 8 of the Code of Civil Procedure, 1908 and Clause 12 of the Letters Patent. (iii) The case made out by RTB in its plaint was that it had incurred substantial expenditure of around Rs. 30.5 crores towards setting up of radio stations in seven cities, including Kolkata. The radio stations, according to RTB, had been set up and broadcast is to commence. (iv) RTB has contended that IPRS, being a copyright society registered under Section 33 of the Copyright Act, 1957, was claiming that it had exclusive right to grant licence on behalf of lyricists, composers, etc. and without such licence sound recordings cannot be broadcast by any radio station and on that basis it had been issuing threats to companies owing radio stations intending to commence their business of broadcasting. (v) It was on this factual backdrop that the Plaintiff instituted the instant suit for the principal prayers, as quoted above. (vi) Pursuant to grant of leave to the Plaintiff -RTB under Order 1 Rule 8 of the Code of Civil Procedure, 1908 and after advertisement, six companies were added as parties to the suit and they are also Respondents in the instant appeal. (vii) At the time of moving the interlocutory application ex parte, for grant of injunction the Plaintiff - RTB, inter alia, contended as follows: If notice of the instant application be given the Respondent and its officers will take wrongful steps to act in furtherance of their threats and otherwise act to the detriment of the Petitioner and other persons who have been granted licences to make broadcast. Your Petitioner have came to learn on 8th April, 2006 that the Respondent is taking steps to file proceedings against the Petitioner and its officers in an attempt to harass and pressurize them into acceding to the wrongful and unjust demands of the Respondent. Accordingly, there is great urgency in the matter. (viii) The Respondent, IPRS, however, intervened through Counsel and on 12th April, 2006 the following order was passed by the Hon'ble First Court: THE COURT: This application is being moved by Mr. Banerjee with the leave of this Court and in course of hearing Mr. P.C. Sen, learned Senior Advocate instructed by Mr. Firoze Edulji, learned Advocate appears on behalf of the Defendant and submits that his client has not taken any legal action pursuant to the threat given. Therefore, he assures this Court his client will not initiate or cause to be initiated any criminal proceeding against the Petitioner till 20th April, 2006. The matter will appear as a "New Motion" on 19th April, 2006. This order is passed without prejudice to the rights and contentions of the parties. All parties are to act on a signed xerox copy of this order on the usual undertaking. (ix) Subsequently, a suit, being C.S. No. 632 of 2006, was filed before the Delhi High Court by IPRS against the Plaintiff - RTB, inter alia, claiming for damages for infringement of its copyright. In the said suit an interlocutory application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 was also filed, wherein IPRS inter alia prayed for an injunction restraining RTB from commencing and/or causing broadcast to be made without obtaining a licence from it. (x) Before the Delhi High Court it was contended on behalf of RTB that in so far as broadcasting was concerned, licence was yet to be issued by the Government of India, though the letter of intent had been issued in January, 2006 and the formalities to be completed before the broadcast started would take about four months. It was further contended by RTB that there was immediate threat for which interim order would be required and in case it proposed to start broadcasting an advance intimation of at least fifteen (15) days would be given to the court with intimation to the Plaintiff (IPRS) so that consideration of the interlocutory application could, be taken up expeditiously in that eventuality, Based on the above submission of RTB, the Delhi High Court on 18th April, 2006 did not pass any interim order in respect of the interlocutory application filed by IPRS. (xi) The Hon'ble First Court while passing the order impugned dismissing RTB's interlocutory application referred to the judgment of the Hon'ble Supreme Court in the case of Indian Performing Rights Society v. Eastern India Motion Picture Association and Ors., : AIR 1977 SC 1443 : PTC (Suppl) (1) 877 (SC) and taking into consideration the proviso to section 60 of the Copyright Act, 1957, was of the prima facie view that IPRS was entitled to claim royalty and were legitimately entitled to threaten RTB on its refusal to pay such royalty and were also entitled to initiate proceeding by taking recourse to process of law to protect the interest of their members. At the time of hearing of the appeal, the learned senior counsel appearing on behalf of the Appellant, took us to the facts of the case in detail and submitted that the Hon'ble First Court, despite noticing the law laid down by the Hon'ble Supreme Court in the Indian Performing Rights Society's case (supra) that a composer can claim copyright in his work only if there is an express agreement between him and the owner of the film preserving his right, held in the order impugned that IPRS was entitled to royalty from broadcasters unless it was shown that its members' rights, were expressly assigned in favour of members of Phonographic Performance Ltd. (hereinafter referred to as 'PPL'). According to the learned senior counsel for the Appellant, this was wholly contrary to the judgment of the Hon'ble Supreme Court referred (supra) as well as the judgment of this High Court, in the case of Eastern India Motion Pictures and Ors. v. Performing Right Society Ltd. and Ors., : AIR 1978 CAL 477. Referring to the paragraphs 17 and 18 of the plaint, learned senior counsel for the Appellant submitted that the Hon'ble First Court had been factually incorrect to observe that it was not the Plaintiffs case that the members of the IPRS did assign their rights to the producers. The learned senior counsel for the Appellant submitted that the specific case of the Plaintiff - RTB was that the lyricists and composers have no right over the music or lyrics as the same vest in the music producers and/or recording companies and the Hon'ble First Court had failed to notice the case made out by the Plaintiff -RTB.
(3.) IT was further submitted by the learned senior counsel for the Appellant that the Respondent IPRS and its members did not have any copyright in sound recording in law and in the absence of any right in law over sound recordings generally, it could not claim royalty in respect of all sound recordings intended to be broadcast. Relying further on the judgment of the Hon'ble Supreme Court in Indian Performing Rights Society's case (supra), he submitted that the Respondent and/or its members can have a right in some works, only if the same had been specifically reserved in relation to individual songs/works under agreements entered into by them. He submitted that in the instant case, no such agreement had been disclosed, hence the Respondent IPRS had failed to disclose that they had retained rights over any works embodied in specific sound recordings.;