- (1.) The Court : Mr. Mookherjee, learned senior advocate commences his argument. He draws attention to the plaint, paragraphs 2, 6 to 9, 10 to 17, 20 to 24, 26, 28, 33 and claims. He demonstrates, case made out by his client, inter alia, is, that which was licensed by defendant no.1 to plaintiffs, for purposes of provisioning of Value Added Services (VAS) to its subscribers, is content owned by it. In Master Agreement, said defendant's representation is recorded, that it has ownership over Intellectual Property Rights (IPR), including copyright and related rights for such VAS content and has all necessary permits, licenses and authorization for provisioning the same to plaintiff under it. That the content was to be placed on a third party platform directly by content provider being defendant no.1, to make it available for telecom subscribers of plaintiff, who would receive this as a Caller Ring Back Tone (CRBT) service. Defendant no.1 in the garb of renegotiating commercial terms, surreptitiously sought to introduce a clause, requiring plaintiff no.1 to procure further licenses from copyright societies with respect to exhaustive copyright, had by said plaintiff from defendant no.1. On plaintiffs not agreeing, disputes arose and, during pendency of which, said defendant is not raising appropriate tax invoices since April, 2017, though has not removed the content from the platform. There is connivance between defendants in the suit.
(2.) He refers to Master Agreement dated 14th March, 2014. He submits, terms of this agreement between plaintiff no.1 and defendant no.1 are to cover transactions in respect of use of copyrighted materials by any or all group companies of plaintiff no.1. The annexes are for purposes of introducing a new service or new content by defendant no.1 with any or all group companies of plaintiff no.1. There can be no dispute that the agreement commenced on 1st April, 2014. Even if it is taken to have expired on 31st March, 2019, it was subsisting in February, 2018 when the suit was filed. He refers to definitions and interpretation given in the agreement. He emphasizes meaning given to 'annex' as a contract, inter alia, for content and meaning of content to be information and materials to be provided by defendant no.1 as described in each annex. IPR have been given meaning to include copyright and related rights. These given meanings assume significance in the agreement executed post amendment to Copyright Act , 1957 made in year 2012. Meaning given to IPR of defendant no.1 is intellectual, acquired or licensed by it from third party either prior to or after date of Master Agreement. He demonstrates from warranties clause 9.1, said defendant warranted, it has already necessary permits, licences and authorizations, including those statutory, to enter into and perform the agreement. Going back for what is content of the agreement, he refers to clauses 1.2 and 1.5 which are reproduced below: "PART D: GENERAL CONTENT AND SERVICE TERMS (APPLICABLE TO EACH ANNEX) 1. GENERAL CONTENT AND SERVICE TERMS ... 1.2. SP shall comply with all SP Applicable Law and Applicable Law that applies to the Content and Services. ... 1.5. Vodafone shall have the right to refuse, reject, suspend, remove or cause to be removed any Service or Content that may be made available to Vodafone or Vodafone's customers, at its sole discretion, without assigning any reason whatsoever and SP shall comply with any such instruction expeditiously and in any event in accordance with the timeframes set out in Applicable Law."
(3.) He emphasizes clause 1.5 to submit, defendant no.1 can remove the content but it has not removed even as on date. His client's subscribers have access to content of defendant no.1 as still on the platform. For further emphasis, he relies on clause 4.1, which is reproduced below: "4.1. In the event of termination of an Annex, SP shall remove the Content and Services (and any related data) from its infrastructure (and any website) and will procure that the Content and Service are no longer available to Vodafone's customers." He the refers to clause 11.5 in the said agreement, which is reproduced below: "11.5. If a third party alleges that the Services or Content provided (or licensed) by or on behalf of SP infringes any Intellectual Property Rights then SP shall indemnify Vodafone for all Actions associated with these circumstances and, if the quiet enjoyment of Vodafone or its Users of such Services or Content is prevented promptly (i) secure the right for Vodafone to continue using the Services or Content; (ii) or replaced or modify the Services or Content to make it non-infringing (without degrading its performance or quality)." ;