Delhi High Court orders Zee Telefilms Ltd. to compensate T-Series

By Bollywood Hungama -

August 27, 2009 - 12:00 AM IST

The Honourable Delhi High Court has recently passed an order in IA No. 5670 of 2009 in Civil Suit No. 769 of 2009 which would act as a deterrent against willful infringement of copyright content owners by Satellite Television Channels. The Suit was filed by T-Series against M/s Zee Telefilms Ltd., asking for permanent injunction and damages against infringement of its copyright. In this Suit, an Interim Application was moved by T-Series praying for an interim injunction since Zee was using its copyright content without a valid license. The Court was pleased to pass an order directing Zee to pay an amount running into several crores in favour of T-series, as an interim measure. This order of Hon'ble High Court will act as a big deterrent for others who feel that the copyrighted content could be infringed with impunity without payment of license fee/royalty. In the hotly contested matter T-Series was represented by Mr. Dushant Dave, Senior Advocate for T-Series while Zee was represented by Mr. Harish Salve, Senior Advocate with Ms Pratibha M Singh. The dispute between the parties concerned relates back to the month of April 2009. In the earlier years, Zee had entered into a licensing arrangement with T-Series for using its copyrighted content in its programmes especially music based shows such as 'Sa Re Ga Ma Pa'. However, once the period of said license was over on 31st March 2009, renewal arrangement could not be entered into for the period commencing from 1.4.2009 as Zee was not willing to pay the license fee which other contemporary Satellite Channels such as Sony, Star, Colors, etc. were paying to T-series. Not only that, Zee was also not willing to pay the outstanding dues of Rs.69 lacs originating from the earlier agreement which expired on 31.3.2009. Since Zee continued to use the copyrighted content of T-Series even after the expiry of the license agreement on 31.3.2009, being aggrieved, T-Series was constrained to file a Suit for permanent injunction and damages before the Hon'ble Delhi High Court. The matter was hotly contested before the Court by both the parties. T-Series pressed for an interim injunction against the violations being committed by Zee by using its content without a valid license. Alternatively, T-Series contended that if Zee wanted to use its content, payment should be made on the basis of its tariff card which was uniformly applicable for all Satellite Channels. The defence raised by Zee, inter alia, included that since the application for compulsory license under section 31 of the Copyright Act is pending before the Copyright Board, an injunction at this stage would be detrimental to its business and especially for its popular programmes such as 'Sa Re Ga Ma Pa', which was a show for encouraging new talent. Another argument put forth by Zee was that T-Series was not owner of copyrighted content being used by Zee and, therefore, no case for infringement was made out. After hearing arguments of both the parties, a very important proposition of law was laid down by the Hon'ble Delhi High Court holding that there is no implied ouster and implicit bar on the Court to grant relief against infringement by mere filing of an application for compulsory license before the Copyright Tribunal at the behest of the Defendants. The reliance being placed by Zee on the decision of Apex Court in Entertainment Networks case was held to be misplaced by the Hon'ble Delhi High Court as it held that the decision of the Apex Court does not discuss/lay down this proposition in the manner relied upon by the Defendants. The Hon'ble Delhi High Court also reached a finding that the act of Zee in using the copyrighted content of T-Series are unlicensed acts for the year 2009-10 and, therefore, prima facie infringing acts within the meaning of Copyrights Act, 1957. The Court also dismissed the plea of the defendants that prima facie infringing acts constitute fair dealing as they are for promotion of talent or imparting training. The last plea raised by the Defendants that T-Series does not have any valid rights of works and, therefore, no case of infringement was made out was also dismissed by the Court by holding that there are several circumstances which established that these submissions are not correct such as - entering into earlier license agreement with T-series, paying license fee in the past and filing an application to the Copyright Board for compulsory license. It was finally held by the Court that a prima facie case had been made out for grant of injunction against infringing activities of Zee but on account of mitigating factors such as the injunction if granted would result in stoppage of popular programmes such as 'Sa Re Ga Ma Pa', the Court maintained equity between the parties by directing Zee to pay past dues to T-Series and license fee amount running into several crores for the Financial Year 2009-10, after expiry of which, T-Series is at liberty to file a fresh application for injunction. Further Zee has been directed to furnish accounts pertaining to usage of copyrighted content owned by T-Series for the period 1st April 2009 to 1st August 2009 within two weeks of the date of the order and shall continue filing the same on monthly basis. The final quantum of damages on the basis of rate card of T-Series shall be determined by the Court and will be considered at the time of final stage of the Suit. The above order of Hon'ble Delhi High Court would act as deterrent for people who have scant respect for copy right law and will be a welcome relief to the copyright owners who invest substantial amounts in acquiring/creating original music.