The case of Super Cassette Industries v. Nirulas Cornerhouse (P) Ltd. in the Delhi High Court deals with infringing the copyright of works which are broadcast via cable (without their copyright being infringed) by subsequently communicating them to the public.
The plaintiff, Super Cassette, is the copyright holder of a number of works many of which it licenses. The defendant, Nirulas, runs restaurants.
The defendant transmitted the plaintiff’s works (which it had received via cable) to its guests without a licence from the plaintiff which caused the plaintiff to allege that its copyright in the works had been infringed. The plaintiff successfully sought an interim injunction against the defendant.
The plaintiff relied on the explanation to Section 2 (ff) of Copyright Act which says that making a work available by simultaneous means of communication in hotels rooms amounts to ‘communication to the public’ and Sections 14, and 51 of the Copyright Act which define copyright and speak of the infringement of copyright.
With reference to Performing Right Society v. Hammonds Bradford Brewery Co. Ltd.,[ (1934) Ch. 121] the plaintiff contended that the provision of a cable channel to guests was analogous to making acoustic presentations to hotel guests through the wireless and that it amounted to ‘communication to the public’.
The plaintiff also cited Garware Plastics and Polyester Ltd. v. Telelink [AIR 1989 Bom 331] where it had been held that the broadcasting of content through cable channels to households etc. amounts to public performance.
The defendant first unsuccessfully tried to have the plaint rejected under Order 8 Rule 11 of the CPC and later tried to avoid distinguishing between the cable operator (legally) transmitting signals to it, and its subsequently transmitting those same signals to its guests.
The High Court of Delhi held that the defendant had infringed the plaintiff’s copyright since Parliament intended ‘to exclude the operation of such categories of [commercial] establishments from the benefit of what are obviously deemed not infringements. Such provisions should receive a restricted interpretation, having regard to the nature of the expressions used. Thus, the Court will not extend the law beyond its meaning to take care of any perceived broader legislative purpose.’
In addition to this, as held in Hubbard v Vosper, [1972 (1) All ER 1072] ‘the court must consider the question of proportions, in the case of a copyright infringement action. Therefore, for instance, 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’.
Source: Copyright Infringement In Playing Television Channel by Manisha Singh Nair www.mondaq.com/article.asp?articleid=58634 and the Delhi High Court website
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