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In the High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction in Its Commercial Division Notice of Motion (L) No

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In the High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction in Its Commercial Division Notice of Motion (L) No WWW.LIVELAW.IN Nitin 1 / 104 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION NOTICE OF MOTION (L) NO. 197 OF 2018 IN COMMERCIAL SUIT IP (L) NO. 11 OF 2018 AND NOTICE OF MOTION (L) NO. 198 OF 2018 IN COMMERCIAL SUIT IP (L) NO. 113 OF 2018 Tips Industries Ltd. … Plaintif Versus Wynk Music Ltd. & Anr. … Defendants Mr. avi "adam$ Seni&r Ad!&cate a/' Mr. Venkates( D(&nd$ Seni&r Ad!&cate al&n)'it( Mr. &(an "adam$ i/* Mrs. +ja'ala "amat f&r t(e Plaintif. Mr. Aspi -(in&y$ Seni&r Ad!&cate al&n)'it( Ms. Vanditta Hed)e$ Ms. /kta Asrani and Ms. Sayli i/* Sin)( and Sin)( and Mal(&tra and Hed)e f&r t(e Defendant N&. 0 in -1MIP2L3 Nl. 004 &f 5607 Dr. 8.8. Saraf a/' Ms. Vaditta Hed)e$ Ms. /kta Asrani and Ms. Sayli i/* /* Sin)( and Sin)( and Mal(&tra and Hed)e f&r t(e Defendant N&. 1 in -1MIP2L3 Nl. 113 &f 5607 CORAM" S.J. #ATHA$ALLA% J. DATE" 2! &' APRIL% 2019 JUDGMENT " SR.NO. PARTICULARS PAGE NOS. 1 EVENTS LEADING TO THE TWO SUITS ( ::: Uploaded on - 06/05/2019 ::: Downloaded on - 07/05/2019 00:40:08 ::: WWW.LIVELAW.IN Nitin 2 / 104 2 NATURE OF DEFENDANTS’ SERVICES IMPUGNED BY THE PLAINTIFF 10 ! ISSUES 11 ISSUE A 12 WHETHER THE DEFENDANTS ARE INFRINGING UPON THE PLAINTIFF’S COPYRIGHT WITHIN THE PLAINTIFF’S REPERTOIRE AS PROVIDED FOR IN SECTION 14(1)(e) OF THE ACT ? ) ISSUE A (i) 28 WHETHER THE USE OF THE PLAINTIFF’S REPERTOIRE BY THE DEFENDANTS’ CUSTOMERS BE CONSIDERED “FAIR USE UNDER SECTION 52(1)(#)(i) OF THE ACT? ( ISSUE A (ii) !) WHETHER THE STORAGE OF SOUND RECORDINGS UPON THE DEFENDANTS’ CUSTOMERS’ DEVICES CAN BE CONSIDERED TRANSIENT OR INCIDENTAL TO THE SERVICES PROVIDED BY THE DEFENDANTS$ AS PROVIDED IN SECTION 52(1)(#)(%) OF THE ACT? 7 ISSUE A (iii) 0 WHETHER THE DEFENDANTS CAN INVO&E SECTION ::: Uploaded on - 06/05/2019 ::: Downloaded on - 07/05/2019 00:40:08 ::: WWW.LIVELAW.IN Nitin 3 / 104 '1-D OF THE ACT TO E)ERCISE A STATUTORY LICENSE IN RESPECT OF THEIR DOWNLOAD*PURCHASE BUSINESS ? 8 ISSUE B ( WHETHER THE DEFENDANTS CAN INVO&E SECTION '1-D OF THE ACT TO E)ERCISE A STATUTORY LICENSE IN RESPECT OF THE PLAINTIFF’S REPERTOIRE FOR INTERNET BROADCASTING ? 9 ISSUE C 81 WHETHER RULE "+ OF THE COPYRIGHT RULES$ ",13 (“THE RULES ) AND THE THIRD PROVISO THERETO ARE INVALID? 10 ISSUE D 8) WHAT IS THE BEARING OF THE GOVERNMENT OF INDIA’S OFFICE MEMORANDUM DATED !TH SEPTEMBER ",16 ON THE PRESENT MATTER ? 11 ISSUE E 88 WHETHER PENDING THE SUIT$ THE DEFENDANTS MAY BE PERMITTED TO USE THE PLAINTIFF’S REPERTOIRE UPON PAYMENT OF DEPOSIT ? 12 ISSUE F ::: Uploaded on - 06/05/2019 ::: Downloaded on - 07/05/2019 00:40:09 ::: WWW.LIVELAW.IN Nitin 4 / 104 WHETHER THE PLAINTIFF IS ONLY INTERESTED IN 9) MONEY AND THUS IN.UNCTION SHOULD NOT BE GRANTED ? 13 CONCLUSION 10! 1. T(e :uesti&n '(ic( is *ein) ans'ered *y t(is -&urt in t(e present #atter is ass&ciated 'it( t(e issue &f easy / ready access t& #usic / s&und rec&rdin) vis-a- vis t(e restricti&ns '(ic( can *e put &n t(e same *y t(e bonafide &'ners &f c&pyri)(t in t(e said #usic and / &r s&und rec&rdin). T(e ad!ent &f t(e internet (as irre!ersi*ly #ade a )l&*al i#pact up&n t(e functi&nin) &f s&ciety and t(e #usic industry is n& e;cepti&n. In t(e past$ a #usic&p(ile<s desire t& access t(e latest s&n) al*u# &r fa!&urite classic '&uld ine!itably lead (i# t& t(e d&&rstep &f a rec&rd st&re &r (a!e (i# siftin) t(r&u)( t(e radi& c(annels &n a traditi&nal radi& / transist&r. W(ereas t&day$ any s&n) is just a c&uple &f clicks a'ay. T(e rapid tec(n&l&)ical advance#ent in t(e #usic industry$ (as p(ased &ut t(e traditi&nal purc(ase &f rec&rds$ cassettes$ c&#pact discs$ etc. T(e inn&!ati&n &f &nline streamin) services suc( as t(e services pr&vided *y t(e present Defendants$ (a!e rendered t(e sa#e &*s&lete and anti:uated. M&st users (a!e s'itc(ed t& #&dern platf&r#s f&r t(eir #usic de#ands. T(e Le)islature$ *ein) c&nsci&us &f t(e s(ift in t(e industry$ resp&nded 'it( an amend#ent t& t(e -&pyri)(t Act$ 0=>? 2T(e ::: Uploaded on - 06/05/2019 ::: Downloaded on - 07/05/2019 00:40:09 ::: WWW.LIVELAW.IN Nitin 5 / 104 -&pyri)(t A#end#ent Act$ 56053. .&'e!er$ a fe' pr&visi&ns &f t(e c&pyri)(t la'$ '(ic( are t(e su*ject #atter &f t(is pr&ceedin) / decisi&n and pertain t& t(ese services re:uire delineati&n. 5. T(e Plaintif is presently seekin) an &rder &f te#p&rary injuncti&n against t(e Defendants in ter#s &f prayer clauses 2a3 &f *&t($ N&tice &f M&ti&n 2L3 N&. 0=? &f 5607 in -&##ercial IP Suit 2L3 N&.114 &f 5607 and N&tice &f M&ti&n 2L3 N&. 0=7 &f 5607 in -&##ercial IP Suit 2L3 N&.113 &f 5607$ '(ic( are repr&duced (ereunder@ N*+,-. */ M*+,*0 (L) N*. 197 */ 2018 ,0 C*11.&-,23 IP S4,t (L) N*.11 */ 2018 2a3 Pending hearing and final disposal of the Suit, a temporary Order and injunction restraining the Defendants, their servants, directors, agents or any other persons/entity claiming through or under them from in any manner, directly or indirectly, exploiting the reproduction rights, issue rights and commercial rental rights/rights of sale underlying the Plainti !s copyright in its "epertoire #at $xhibit %&' by (ay of providing download services/features on the musical portal www.wyn*)in and +,P/mobile sites and +-./ applications via the consumer o erings and/or any other feature/application providing enabling/permitting/do(nload of the Plainti !s copyrighted (orks or on / via / through any other (ebsite / portal / device / application / technolo0 etc) N*+,-. */ M*+,*0 (L) N*.198 */ 2018 ,0 C*11.&-,23 IP S4,+ (L) N*.11! */ 2018 ::: Uploaded on - 06/05/2019 ::: Downloaded on - 07/05/2019 00:40:09 ::: WWW.LIVELAW.IN Nitin 6 / 104 #a' Pending the hearing and final disposal of the present Suit, a temporary order and injunction restraining the Defendants, their servants, directors, agents or any other persons/ entity claiming through or under them from in any manner, directly or indirectly, communicating to the public by any medium, device, wire or wireless means, and by any mode whatsoever, performing, using for interactive streaming and branded non interactive curated streaming to the end users on internet enabled digital devices via the Defendants! player on the musical portal www.wynk.in and +-./ +,P / mobile sites and +-./ ,pplications via the consumer o ering or on / via / through any other (ebsite / portal / device / application / technolo0, etc., the Plainti !s "epertoire of sound recordings and images, details and particulars of which are given at $xhibit 1%! and 23& to the Plaint #pgs) 40, 69 and 85') EVENTS LEADING TO THE TWO SUITS 9. T(e Plaintif A Tips Industries Ltd., clai#s t& *e t(e &'ner &f t(e c&pyri)(t in &!er 5>$666 s&und rec&rdin)s 2BP32,0+,567 R.8.&+*,&.C3. T(e Defendants &'n and &perate WDN"$ an 1!er t(e T&p Ser!ice available &n t(e internet$ s#artp(&nes and s#art #edia. T(r&u)( t(is service$ up&n pay#ent &f a su*scripti&n fee$ t(e Defendants< cust&#ers / su*scri*ers can access nu#er&us s&und rec&rdin)s and audi&Avisual rec&rdin)s includin)$ inter alia, t(e Plaintif<s epert&ire. T(e Plaintif<s epert&ire 'as earlier licensed t& t(e Defendants *y t(e c&pyri)(t s&ciety A P(&n&)rap(ic Perf&r#ance Li#ited 2BPPLC3$ under a 'ritten License A)ree#ent dated 55nd Au)ust 5604. T(e license fee ::: Uploaded on - 06/05/2019 ::: Downloaded on - 07/05/2019 00:40:09 ::: WWW.LIVELAW.IN Nitin 7 / 104 app&rti&nable t& t(e Plaintif<s c&ntent 'as Rs.1.31 Cr&res 2 upees 1ne Cr&re T(irty 1ne Lakh &nly3 per year. .&'e!er$ t(is a)ree#ent e;pired *y eEu; &f ti#e &n 90st Au)ust 5616. 4. In &r ab&ut Au)ust 560F$ ne)&tiati&ns ensued *et'een t(e Plaintif and Defendant N&. 0 t& arri!e at ter#s f&r a fres( / rene'ed license. An extensi&n letter 'as e#ailed t& t(e Plaintif *y t(e Defendants &n 54th Au)ust 560F$ t& extend t(e af&resaid license agree#ent till 90st 1ct&*er 5616. T(e Plaintif '(& re!erted 'it( a si)ned c&py &f t(e letter &n 0st Septe#*er 560F$ agreed t& extend t(e license till 90st 1ct&*er 5616 &n a c&nditi&n t(at a 'ritten agree#ent '&uld *e e;ecuted *y t(en$ failin) '(ic($ use *y t(e Defendants '&uld *e disc&ntinued *y ?th N&!e#*er 560F 'it( a liability t& pay f&r usage durin) t(is peri&d.
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