The concept of Copyright pronounces itself to be a "bundle of rights". In this bundle, parties often find themselves entangled in disputes whereby they perceive the other party to be infringing their right. The copyright statute in India, being extensive in nature, covering a wide arena of inclusions and exclusions, often finds a place in judicial ponder. The existence of an act of infringement, engulfing a discussion on a varied class of rights, cropped up as a point of debate in Super Cassettes Industries v. Nirulas Corner House (P) Ltd. [2008 (37) PTC 237 (Del.)] This decision of the Delhi High Court, is yet another in a series of verdicts deliberating upon the aspects of "communication to public" and "infringement."
Super Cassettes, a popular music company holds copyrights in a variety of literary and musical works, sound recordings, music videos and cinematographic videos. They sell VCDs, DVDs and cassettes while also granting the license to exploit them. Nirulas are involved in the business of hotels and restaurants in New Delhi.
Super Cassettes suggested that on learning of the infringement of its copyright, an investigator was appointed to inspect Nirulas' premises in order to determine the extent of viewing of its works. On taking such a step, they were intimated by the investigator that audio clips of songs in which they held copyright were being played on different channels on a television in a room of the hotel. The investigator swore his findings on an affidavit.
Super Cassettes urged that such transmission of a copyrighted work, in which a license was absent, amounted to infringement, as there was communication of works to the public, by playing it in hotel rooms without proper license. He urged that the exclusive rights granted under Section 14 of the Copyright Act were being flouted, and that the edict on infringement (incorporated in Section 51 of the Act) squarely brought the action of Nirulas under the scope of infringement. They further submitted that the guests in Nirulas' hotel room would constitute "public" and differentiated the action of Nirulas from that of a cable operator.
Nirulas however, submitted that the affidavit had not disclosed whether they were playing recorded music and whether in fact those clippings were Super Cassettes' copyrighted works. They pointed out that the affidavit mentioned of songs on various channels, being aired through a cable operator and not by Nirulas themselves. Nirulas asserted that no cause of action existed in the suit, and that the broadcast not being illegal, vested the broadcaster with broadcasting rights as under Section 37 of the Copyright Act.
The counsel for Nirulas contended that the broadcast itself or receiving of such a broadcast did not constitute infringement as under Section 51 of the Copyright Act. Nirulas clarified that since the legality of the broadcast made by the cable operator was not in question, an allegation of infringement could not be made, since the consent of the cable operator to receive such content was present. Further, they stated that concealment of details of arrangement with the broadcasting organization had not been disclosed intentionally, as also the channels from which the songs had been recorded on the CDs, since doing so would have destroyed the case made out by Super Cassettes.
On the issue of locus standi, Nirulas stated that Super Cassettes had no locus standi to file the present suit as an independent copyright subsists in the broadcaster. They stated that a suit for infringement could not be filed, when a copyright did not subsist in the party making the allegation. Further, they contended that no additional income accrued to Nirulas, owing to the television being viewed by the customers. Therefore, they stated that the allegation as under Section 51 was nullified.
The Court examined all the relevant sections alongside the precedents in law. They opined that the exclusion of "hotels" and "other commercial establishments" reflected legislative intent to restrict the ambit of the law. The Court concluded that Nirulas being a hotel and the display of songs, videos etc. being a manner of "communication to the public", the balance of convenience prima facie lay in the favour of Supercassettes and hence a case of infringement had been made out.
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