The concept of "Communication to Public" is central to Copyright and a subject of intellectual property protection. The question as to what constitutes communication to public depends on the particular act of communication. The exhibition of any copyrighted work in a closed circle of family or friends or personal viewing is outside the purview of infringement. However, when such an exhibition is to an audience who avail the facility in hotels, it amounts to communication to public, which if done without licence or permission of copyright holder may invite infringement proceedings. The present case brings out the same issue.1
Plaintiff Super Cassette Industries Limited is copyright holder of an array of literary and musical works, sound recordings, music videos and cinematographic videos and manufactures and sells VCDs, DVDs and Cassettes containing these works. It also licenses the right to exploit its works. The defendants are engaged in the business of hotels/restaurants. The plaintiff alleged infringement of its copyright in musical works by the defendant by transmitting them to its guests in their restaurant/ hotels and sought interim injunction against them which was granted by the court.
Plaintiff contended that titles in which it had copyright
were being played in the hotel rooms, without a proper licence.
Such usage would amount to public performance/communication to
public of the work, the exclusive rights to which were granted
only to the copyright holder or a duly licensed person under
the Act. The explanation to Section 2 (ff) of Copyright Act
inserted in 1995 specifically mandates that making a work
available by simultaneous means of communication in hotels
rooms would amount to a communication to the public. Plaintiff
relied on Sections 14, and 51 of the Copyright Act to make out
a case of infringement. It was submitted that guests in the
defendant's hotel rooms would amount to a distinct
public audience, since the defendant and not the cable operator
provides the service directly to the customers. The
television
sets installed in the rooms by the defendant are the means
through which electronic signals are converted into audio and
video signals, and therefore constitute a separate act of
communication to the public distinct from the act of the cable
operator. He relied on the judgment delivered in Performing
Right Society v. Hammonds Bradford Brewery Co. Ltd.,
(1934) Ch. 121 where it was held that the hotel who
through its wireless set makes available to its guests acoustic
presentations was in fact communicating it publicly. He also
cited the judgment of Garware Plastics and Polyester
Ltd. v. Telelink, AIR 1989 Bom 331,
where the Court held that broadcasting of content through cable
channels to various households etc. amounts to public
performance.
The defendant in its written statement demanded rejection of
plaint stating therein absence of a cause of action as required
by Order 8 Rule 11 of the CPC. They averred that the broadcast
itself and the receiving of such broadcast, would not amount to
infringement under section 51 of the Act. He submitted that he
was merely receiving the signals transmitted by the cable
operator, and because the plaintiff does not dispute
the legality of the cable operator's content, the defendant
itself could not be held liable for infringement of the work
through communication to the public, since it has obtained the
consent of the cable operator to receive such content.
The issue here is whether communication via playing a television channel, the contents of which were broadcasted by the cable operator or the channel itself could be held as infringement of the copyright? The court decided this issue in the affirmative and held that such a communication being in the control of the defendant was an infringement of copyright, by virtue of the provisions of Section 52 and 2(ff). The Parliamentary intention was to exclude commercial establishments from the benefit of non-infringement, thus the court would also not extend the law beyond its meaning to take care of any perceived broader legislative purpose. The court also considered the question of proportions saying that "the placing of a common television in a motel reception, accessible to all but without keeping a television set, in each hotel room, or placing such a set in a grocery shop for the recreation of the owner, or a wayside restaurant, may not fall within the mischief of the definition of infringement. Proportion in this context, would necessarily imply the nature of the activity of the establishment and the integral connection the infringement complained of has with it."
The plaintiff was thus able to prove copyright infringement in that defendants were using cable connection and extending facilities of television to their patrons in the hotel rooms, for payments received. Prima facie, the content of songs and videos broadcast were communications to the public.
Accordingly, the court referring to Popat and Kotecha Property v. State Bank of India Staff Association 2005 (7) SCC 510 held "it cannot be said that the plaint does not disclose any cause of action; equally, the court cannot go behind the pleadings to hold that the materials or pleadings do not disclose any triable cause of action." It has also been held that there cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. The court cannot reject a part of the plaint, if defects are noticed in any part of it. Therefore, the defendant's application for rejection of plaint could not succeed.
The case is a forerunner in extending the principles of copyright protection to public exhibitions of copyrighted material even when the broadcasting rights are held by television channels.
Footnote
1 Super Cassette Industries V. Nirulas Cornerhouse (P) Ltd. I.A. No. 10742/2007 and I.A. No. 6882/2007; CS (OS) NO. 1096/ 2007; High Court of Delhi at New Delhi.
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