SOUMEN SEN,J. - (1.) The Court: In an action for copyright infringement, the plaintiff has filed this interlocutory application praying, inter alia, for appointment of a Special Officer to visit the office/offices of the respondent and retrieve from the respondent's computer software and hardware memory the user data of the respondent's past exploitation of the petitioner's works and the petitioner has also prayed for mandatory injunction directing the respondent to remove from its Value Added Service platform (VAS) and other platforms all cinematograph films, sound recordings and the like where the underlying copyright in literary and musical works belong to the petitioner save and except the petitioner's rights flowing from the sound recordings belonging to Saregama India Limited.
(2.) The petitioner in short IPRS is a non profit body originally established on 23rd August, 1969 to monitor, protect and enforce the rights, interest and privileges of its members comprising of more than 4000 authors (lyricists), music composers and publishers of musical works and literary works (i.e. lyrics) associated with musical works. The petitioner contends that the respondent as part of its telecommunication services also provides Value Added Services (VAS) such a caller ring back tones CRBT wherein a subscriber to respondents' services may select certain sound recordings, as a caller tone for another caller who dials the subscriber's number. Similarly, the respondent as a part of its VAS mobile applications like 'vodafone play', 'idea music' and 'idea movies and TV' which provides a platform for the streaming of live TV, Movies, popular TV shows and music videos. The respondent provides platforms under the vodafone and idea brands through which VAS services are provisioned and provided to their subscribers and generate a substantial revenue form making available such services to their subscribers. The members of the petitioners have assigned their copyrights in the literary and musical works to the petitioner. The petitioner alleged that as on 29th December, 2017 the petitioner has requested the respondent to obtain licence for utilization of musical works and/or associated literary works included in the songs and films as part of mobile VAS and other services in India. In the said notice the petitioner has alleged that in view of 2012 amendment to the Copyright Act, the utilzation of musical, literary works in any form and for any purpose require payments of royalty to the authors and owners of the said works as a telecom operator providing basic voice services and non-voice services having content based services which allows customers to access and consume various genre of entertainment, sports, devotional and other utility based services, IVR based services, caller ring back tone(CRBT), Real tone, mobile TV etc. It is necessary that the respondent takes appropriate steps to secure a licence to enable it to exploit musical works and associated literary works in its services by it in consonance with the IPRS tariffs enclosed with the said communication.
(3.) The petitioner again requested the respondent on 13th June, 2018 after obtaining a revised certificate of registration to have a discussion on the licensing arrangement or exploitation of such musical rights. The petitioner complains that although the respondent in its communication dated 23rd January, 2018 has agreed to have a discussion on the said issue and its parent association, Cellular Operators Association of India, that the discussion for licensing arrangement with regard to licensing arrangements and/or associated literary works including the sons and films as part of MVAS and other services in India would take place shortly and appropriate steps would be taken in that regard. But unfortunately, the respondent till date has not obtained necessary licence from the plaintiff and is using such musical works, sound recordings and musical works in the form of caller ring back tones.;