Case Note & Summary
The present proceeding arose from two commercial IP suits filed by Tips Industries Ltd. (plaintiff) against Wynk Music Ltd. and another (defendants) before the Bombay High Court, seeking interim injunctions to restrain the defendants from communicating the plaintiff’s sound recordings to the public and from offering download/purchase services of those recordings. The plaintiff claimed ownership of copyright in over 25,000 sound recordings (the ‘plaintiff’s repertoire’). The defendants operated WYNK, an over‑the‑top digital music platform available via internet and mobile applications, allowing users to stream music online and, upon payment, to download tracks for offline listening or permanent ownership. A prior license agreement between the parties through the copyright society Phonographic Performance Limited had expired on 31 August 2016. Subsequent negotiations for a renewed license failed; the plaintiff alleged that a minimum guarantee of ₹4.5 crores was agreed upon but the defendants disputed this, and ultimately the plaintiff repeatedly requested removal of its content from the WYNK platform. The defendants continued to use the repertoire, asserting in November 2017 that they were a ‘broadcasting organization’ entitled to a statutory license under Section 31-D of the Copyright Act, 1957 to broadcast the works to the public. The plaintiff then filed the two suits on 29 January 2018, claiming infringement and challenging the invocation of Section 31-D. The court, after hearing extensive arguments, identified nine issues: (i) whether the defendants’ services infringed the plaintiff’s copyright under Section 14(1)(e); (ii) whether customer download and streaming constituted fair use under Section 52(1)(a)(i); (iii) whether storage on user devices was transient or incidental under Section 52(1)(a)(b); (iv) whether Section 31-D could be invoked for the download/purchase business; (v) whether Section 31-D could be invoked for internet broadcasting; (vi) the validity of Rule 29 of the Copyright Rules, 2013 and its third proviso; (vii) the bearing of an Office Memorandum dated 5 September 2016; (viii) whether the defendants could be permitted to use the repertoire pending suit upon deposit; and (ix) whether the plaintiff was only interested in money, thereby disentitling it to an injunction. The judgment text provided is truncated before the court’s reasoning and decision, and therefore the final determination on these issues is not available in the excerpt.
Issue of Consideration
Whether the defendants’ online streaming and download services infringe the plaintiff’s copyright; whether fair use and statutory license under Section 31-D apply; validity of Rule 29 of the Copyright Rules, 2013; and whether interim injunction should be granted.
Law Points
- Copyright infringement
- statutory licensing
- fair use
- broadcasting organization
- online streaming
- download services
- Section 31-D
- Section 52
- Rule 29 Copyright Rules 2013
Case Details
2019 LawText (BOM) (04) 118
Commercial IP Suit (L) Nos. 113 and 114 of 2018 with Notice of Motion (L) Nos. 197 and 198 of 2018
Mr. Ravi Kadam, Mr. Venkatesh Dhond, Mr. Rohan Kadam, Mrs. Ujawala Kamat for Plaintiff; Mr. Aspi Chinoy, Ms. Vanditta Hedge, Ms. Ekta Asrani, Ms. Sayli, Singh and Singh and Malhotra and Hedge for Defendant No.1 in COMIP(L) 114/2018; Dr. B.B. Saraf, Ms. Vaditta Hedge, Ms. Ekta Asrani, Ms. Sayli, Singh and Singh and Malhotra and Hedge for Defendant No.1 in COMIP(L) 113/2018
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Nature of Litigation
Commercial Intellectual Property Suit for copyright infringement and interim injunction
Remedy Sought
The plaintiff sought temporary injunctions restraining the defendants from exploiting reproduction, issue, communication to the public, and commercial rental rights over the plaintiff’s sound recording repertoire.
Filing Reason
Dispute over licensing of sound recordings; defendants continued using plaintiff’s repertoire after license expiry and invoked statutory license under Section 31-D without agreement.
Issues
Whether the defendants are infringing the plaintiff’s copyright within the plaintiff’s repertoire as provided for in Section 14(1)(e) of the Copyright Act, 1957
Whether the use of the plaintiff’s repertoire by the defendants’ customers be considered fair use under Section 52(1)(a)(i) of the Act
Whether the storage of sound recordings upon the defendants’ customers’ devices can be considered transient or incidental as provided in Section 52(1)(a)(b) of the Act
Whether the defendants can invoke Section 31-D of the Act to exercise a statutory license in respect of their download/purchase business
Whether the defendants can invoke Section 31-D of the Act to exercise a statutory license in respect of the plaintiff’s repertoire for internet broadcasting
Whether Rule 29 of the Copyright Rules, 2013 and the third proviso thereto are invalid
What is the bearing of the Government of India’s Office Memorandum dated 5th September 2016 on the present matter
Whether pending the suit, the defendants may be permitted to use the plaintiff’s repertoire upon payment of deposit
Whether the plaintiff is only interested in money and thus injunction should not be granted
Judgment Excerpts
The Defendants… invoked Section 31-D of the Copyright Act, 1957 … claiming themselves to be a broadcasting organisation / broadcasters.
The rapid technological advancement in the music industry, has phased out the traditional purchase of records, cassettes, compact discs, etc. The innovation of online streaming services such as the services provided by the present Defendants, have rendered the same obsolete and antiquated.
Procedural History
1. Plaintiff Tips Industries owned copyright in over 25,000 sound recordings. 2. A license agreement with Defendant Wynk through PPL expired on 31 August 2016. 3. Negotiations for renewal failed; Plaintiff requested deactivation of its content in April/May 2017. 4. Plaintiff issued a cease and desist notice on 17 November 2017. 5. Defendants invoked Section 31-D on 24 November 2017, claiming statutory license as a broadcasting organization. 6. Plaintiff filed two commercial suits on 29 January 2018 seeking permanent injunction and interim relief. 7. The court heard the interim applications and identified issues for determination; the judgment excerpt ends before the final order.
Acts & Sections
- Copyright Act, 1957: 14(1)(e), 52(1)(a)(i), 52(1)(a)(b), 31-D
- Copyright Rules, 2013: Rule 29
