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
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
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
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