- (1.) Mr. Anindya Kumar Mitra, learned senior advocate resumes his submissions. He draws attention to the plaint on reiterating that defendant no.1 is a member of his client's society. He places paragraphs 2, 5, 6, 11 and claims. He submits, plaintiff's assertion of fact that his client got registration on 28th November, 2017 is correct. His client's claim for exploitation of works, literary and musical, of its members, commenced from that date. Rate of royalty to be paid for exploitation is 8% of net service fee obtained by licensor. He demonstrates from the plaint, reliance therein on master agreement dated 14th March, 2014 and, inter alia, one annex agreement also dated 14th March, 2014. Master agreement says each annex shall be deemed a separate contract on terms set out in the master agreement and applicable to the annex, the latter containing, inter alia, special conditions. Referring to one of the annex agreements dated 14th March, 2014, he points out, that was to commence from 1st April, 2013 and expired on 31st March, 2016. This expired annex agreement was renewed on 16th June, 2016, which document plaintiff suppressed. The document stands disclosed in affidavit-in-opposition affirmed on 16th July, 2018 on behalf of defendant no.1. This renewed annex agreement also expired on 31st March, 2018. It had in it sub-clause (13) under clause 5, which is reproduced below:- "Notwithstanding anything to the contrary contained herein Vodafone may be required to procure licenses from any copyright society/organization operating in any part of the Territory during the Term. Procurement of any such copyright society/organization licenses shall be the sole responsibility of Vodafone at its sole cost and The Service Provider shall not be held responsible for the same in any manner whatsoever." Plaintiff has, therefore, sued on expired agreements, being separate agreements, to claim declaration in the negative and perpetual injunction restraining defendants, in effect, from initiating any proceeding against plaintiff in relation to fees payable in terms of agreements being Annexures A, B and C in the plaint. The plaint does not disclose subsisting agreement as on date of filing of the plaint or before 9th February, 2018.
(2.) He draws attention to amended provisions of Copyright Act , 1957 (amendment of year 2012). Section 18 had inserted in it three provisos by amendment. Second and third provisos restrict authors from, inter alia, assigning their rights to receive royalties, except to legal heirs of the authors or to a copyright or collecting society. That read with section 33 would make his client the only person who can grant license, provided that an owner of copyright, being member of his client, can do so in his individual capacity in respect of his own works, consistent with his obligations as member. Going back to sub- section (8) in section 19 , he submits, the statute mandates, assignment of copyright in any work, contrary to terms and conditions of rights already assigned to a copyright society, in which the author of the work is a member, shall be void. Section 30 provides for licenses granted by owners of copyright, while section 30-A makes provisions of section 19 apply in relation to a license under section 30 with necessary adaptation and modification, as they apply in relation to assignment of copyright in a work.
(3.) The law when applied to the facts, has effect that renewed annex agreement dated 16th June, 2016 is a license granted by defendant no.1 consistent with its obligations as a member of his client. Sub-clause (13) under clause 5 in that agreement, extracted above, is the term to show defendant no.1 acted consistently with its obligations arisen as member of its client upon his client being registered under Copyright Act ,1957, on 28th November, 2017. As such, he reiterates, plaintiff's suit is liable to be dismissed on plaintiff not having cause of action. In no circumstances can plaintiff maintain injunction obtained against his client. He submits, on next occasion he would like to rely on a couple of authorities.;