ISRA wins yet another case at the Delhi High Court
The Indian Singers’ Rights Association (ISRA) on 30th September won yet another case at the Delhi High Court against Night Fever Club & Lounge, Delhi. This is the second of its kind in recent times with the first being two months ago against Chapter 25 Bar and Restaurant, Delhi where performers rights were upheld. You can read the brief of the case here. The facts of both the cases bear a striking resemblance wherein the Performers rights were challenged at the Delhi High Court and the ISRA won at both instances.
In the present suit, the plaintiff, ISRA filed a suit against Night Fever Club and Lounge at G-1 and G-2, near Fun Cinema, North Square Mall, Netaji Subhash Place, New Delhi along with an application under Order XXXIX Rule 1 and 2 of Civil Procedure Code alleging infringement of the plaintiff member’s performers rights. The plaintiff contended that live performances were being organized at the defendant’s premises using plaintiff’s repertoire. In November 2014, the plaintiff by means of an investigation collected evidence proving the defendant’s continuous act of communicating music to the public from the plaintiff’s repertoire. The plaintiff had in furtherance sent a cease and desist letter requesting the defendant to obtain requisite clearance namely the “Performers Rights Clearance Certificate”. The Plaintiff’s application was considered by the Delhi High Court on December 23, 2014 wherein it restrained the defendant from communicating to the public the plaintiff’s repertoire comprising of performance of all its members without obtaining licence from the plaintiff or doing any other act infringing the plaintiff’s members’ performance rights till further orders. Furthermore, the plaintiff sought a permanent injunction from the defendant, claimed damages and sought an order for rendition of accounts illegally earned by the defendant.
The counsel for the plaintiff submitted that the Plaintiff was one of the first Copyright Societies to be registered by the Central Government after the 2012 amendments to the Copyright Act. Further, light was shed on the amendments made to the performers rights as reflected in the S.18, 19, 38, 38-A, and 39-A of the Copyright (Amendment) Act, 2012. Under section 38 A (1) of the Act, performers’ right is an exclusive right which includes the right to make a sound recording or a visual recording of the performance including “communication of it to the public”. The proviso to Section 38 (2) of the Act further states that notwithstanding anything contained in the said sub-section “the performer shall be entitled for royalties in case of making of the performances for commercial use.” The fourth proviso to Section 18(1) states that “Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.” Section 38-A provides each singer the inalienable Right to Receive Royalty (R3) for the commercial exploitation of their performance as a Singer. The plaintiff submitted that all its members have executed deeds of exclusive authorization, authorizing the plaintiff to receive royalty from the exploitation and / or usage of the exclusive right of performers under Section 38A of the Act of 1957 and therefore the plaintiff is exclusive owner of the Performer’s Rights to the extent of R3.
The counsel for the plaintiff emphasized on the violation of the plaintiff member’s rights and further relied on the Delhi High Court’s previous judgement which I have mentioned above. It was therefore submitted that the defendant, Night Fever Club and Lounge had been using the plaintiff’s society’s repertoire in the absence of a ‘Performers Rights Clearance Certificate’ and were accordingly in violation on their member’s R3. Justice Kameswar Rao was in consensus with the Plaintiff’s submissions and ordered that the defendants were infringing the plaintiff member’s right to receive royalties. He also noted that the plaintiff and through the plaintiff its members are suffering loss of their legitimate dues because the defendant’s refusal to pay the royalties due to the plaintiff.
The Delhi High Court decreed the suit in favour of the plaintiff society and the defendants were thereby restrained by way of permanent injunction from using the Plaintiff member’s songs and in addition were asked to render the accounts of all the monies earned from using the Plaintiff’s songs. The Plaintiff’s plea for damages was declined by the Court due to lack of evidence. However, Justice Kameswar Rao gave the plaintiff the liberty to institute an independent proceeding for it after rendition of accounts by the Defendant. Therefore, the suit was decreed as above with cost of Rs. 20,000/- to be paid to the plaintiff within eight weeks.