The Bombay High Court Has Banned The Performance Of Songs That Are Protected By Copyright At A New Year's Eve Event At Lucknow's Ramada Hotel.

CASE TITLE:

Phonographic Performance Ltd. vs Kaamakazi Solution Pvt. Ltd. & Ors.

DATE OF ORDER:

22^ND Decemeber,2023

BENCH:

HON’BLE MR. JUSTICE R.I. CHAGLA

PARTIES:

Plaintiff: Phonographic Performance Ltd.

Respondent: Kaamakazi Solution Pvt. Ltd. & Ors.

SUBJECT:

5. The plaintiff in this case is Phonographic Performance Limited, which issues licenses for the public performance and dissemination of sound recordings based on assignments given to it by its members, record labels, who are the owners of copyright in those recordings. The plaintiff is requesting an injunction against the defendants, look part Exhibitions and Events Private Ltd., an event management company that offers DJ services for a range of social events, including weddings.
5. A portion of the submissions for application I.A.4772/2022 have been heard.  Looking for internal junction. Senior Counsel, Mr. Akhil Sibal, has submitted on behalf of the plaintiff.

OVERVIEW:

5. The Affidavit of Service, dated December 21, 2023, was tendered by Mr. Jagtiani, the Plaintiffs' learned Senior Counsel. It documents the service of process on the Defendants via email and speed post on December 21, 2023. It is recorded that the Affidavit of Service was given.
5. The Plaintiff filed a lawsuit against Deep Distilleries and Breweries Pvt. Ltd. and Ors. in Com IPR Suit (L) no. 34604 of 2023, in which the Interim Application (L) No. 34685 of 2023 was filed. This lawsuit must be referred to. This Court took into consideration the claim made by Dr. Tulzapurkar, the knowledgeable Senior Counsel representing the Defendants in that case, stating that Kamakazi Solution Private Ltd., not Defendant No. 1, was hosting the relevant new year 2024 event, despite what had been stated on Defendant No. 1's Instagram handle. This assertion was approved.
5. Consequently, Kamakazi Solution Pvt. Ltd. is the target of the present lawsuit and interim application filed by the plaintiff in this case.
5. In light of the defendants' hosting of the aforementioned 2024 event at the Ramada Hotel, which is owned by Deep Distilleries and Breweries Pvt. Ltd., where Defendant No. 1 will be presenting to the public the repertoire of sound recordings of the Plaintiff that form part of the Plaintiff's copyrighted works without obtaining a license from the Plaintiff, Mr. Jagtiani is seeking urgent ad-interim relief at this stage in terms of prayer Clause (a) of the Interim Application.
5. Mr. Jagtiani has made reference to Exhibit C, a CD that lists music labels, contracts, and sound recordings that are the plaintiff's copyrighted works. As a result, he has claimed that despite having been served, the defendants have decided not to appear

ARGUMENTS ADVANCED BY THE PARTIES

5. Since the Plaintiff owns and/or controls more than 70% of the sound recordings, Mr. Jagtiani has argued that the Defendants cannot be heard to argue that the Plaintiff's sound recordings will not be shared with the public. Furthermore, the intention to play the sound recordings is conveyed by the advertisement posted on Ramada's Instagram page. As a result, there is grave concern that the Defendants will converse and violate the Plaintiff's audio recordings.
5. Mr. Jagtiani has further argued that Defendant No. 1 previously held a license to disseminate the Plaintiffs' sound recordings to the general public; an example of this license is included in the Plaint's Exhibit E.
5. After taking into account the submissions, the Plaintiff asserts that it is the exclusive licensee or assignee of approximately 400 music labels, with over 45 lakh sound recordings both domestically and internationally, and that it owns and/or controls those rights for public performance. In addition, the plaintiff asserts that Section 30 of the Copyright Act, 1957 gives them the sole right to license the public performance repertoire for public dissemination. The agreements, sound recordings, and music labels with specifics pertaining to the "Plaintiff's Copyrighted Works" are appended as Exhibit C to the Plaint.

JUDGEMENT ANALYSIS:

5. This Court acknowledges that it is it that is making the primary decision regarding whether Section 30 of the Copyright Act, 1957 applies to the Plaintiff in this particular lawsuit. The Plaintiff in the court’s view, however, has established a prima facie case for the grant of ad-interim relief in terms of prayer Clause (a) to the Interim Application, given that the aforementioned New Years 2024 event is being hosted by Defendant No.1, as evidenced by the print out Instagram handle and further evidenced by the statement made by Dr. Tulzapurkar appearing for the Defendants in Commercial IPR Suit (L) No.30604 of 2023, which was accepted by this Court via order dated December 20, 2023.
5. According to the court's initial assessment, Defendant No. 1 will violate the Plaintiff's copyrighted works by disclosing the Plaintiff's sound recordings to the public without the Plaintiff's consent, should the ad-interim relief under Prayer Clause (a) be denied. Exhibit E to the Plaint attests to the Defendant No. 1's prior acquisition of a license from the Plaintiff. Additionally, in similar suits filed by the Plaintiff, this Court has occasionally granted ad interim orders in favor of the Plaintiff, wherein the Plaintiff has requested the same relief as in prayer Clause (a) against the Defendants, who were communicating the Plaintiff's sound recordings to the public
5. Should there be no ad-interim relief, the Plaintiff will incur severe and irreversible damages. a preliminary claim based on the possibility that the plaintiff's copyrighted works would be violated. This Court is of the prima facie opinion that the Plaintiff has the advantage in terms of convenience, and the Defendants have opted not to appear in spite of service. Therefore, the temporary relief is being provided.
5. Considering the aforementioned, prayer clause (a) of the interim application, which states as follows, shall provide ad-interim relief.
5. That this Honourable Court be pleased to issue an order of injunction against Defendant, its partners, directors, their servants, employees, agents, assignees, licensees, representatives, third-party event management companies, or otherwise, and / or any person claiming through them or acting on their behalf, from publicly performing or in any manner communicating the sound recordings of the songs assigned and authorised to the Plaintiff, or from permitting their premises, or any premises under their control, to be used for the said purposes, without obtaining from the Plaintiff non-exclusive public performance rights in sound recordings, or from infringing upon the copyright in any work owned and protected by the Plaintiff.
5. The Plaintiff's Advocates will promptly notify the Defendants of this Order.
5. On January 5, 2024, the interim application will be submitted for additional consideration.

CONCLUSION:

5. PPL served a notice, but nobody showed up for the Kaamakazi.
5. The High Court observed that a more general question regarding the applicability of section 30 of the Copyright Act—which addresses copyright owners' licenses—is presently being decided.
5. The high court had previously "from time to time granted ad-interim orders in favour of the Plaintiff in similar suits," the judge also noted. 
5. The HC has barred the defendant, its directors, and partners' representatives from playing the PPL-assigned song recordings while the lawsuit is still pending a hearing.