Sony Music gets ad-interim relief from Bombay High Court in copyright infringement suit against KAL Radio

The Bombay High Court recently granted restrained KAL Radio Ltd. from broadcasting any songs copyrighted by Sony Music Entertainment India Pvt. Ltd. (Sony) on their FM Radio stations till July 2, 2021..The order was passed by Justice Gautam Patel in a copyright infringement suit filed by Sony..Senior Advocate Janak Dwarkadas appearing for Sony sought urgent ad-interim restraining order on the ground that KAL did not have a license and, therefore, the act of broadcasting their songs without permit was infringement and immediately actionable. .Advocate Abhishek Malhotra representing KAL opposed the prayer stating that KAL was entitled to use Sony India's work as per Section 31-D (statutory license and procedure for that) of the Copyright Act 'the moment it sends a notice and payment'. He submitted that Sony India could also always be compensated in money later for the irretrievable prejudice.Malhotra also submitted that there had been sufficient compliance with the Act and the Copyright Rules. He argued that parts of Rule 29 will have to be "read down" so that strict compliance is unnecessary. .The Court observed that this argument was untenable as KAL could not decide which parts of the Rules it wants to apply and which it does not and simply discard those Rules that it finds inconvenient."In opposition to Sony India’s copyright infringement civil action, it (KAL) cannot mount a challenge to the validity of the (Copyright) Rules, or seek that these be read in any manner other than what their plain language and meaning demand," Justice Patel said. He further added that if Malhotra's submissions are to be accepted "one might as well do away with all copyright protection"."In effect, his submissions amounts to saying that his client can interpret the statute and the rules as loosely as it wishes, need not conform to the statutory regime, and none can deny his client a ‘right’ to use someone else’s copyright-protected material," Justice Patel said in response to Malhotra's submission..KAL had obtained certain licenses to use Sony India's copyright protected work form the Phonographic Performance Limited of which Sony India was a member. The Copyright Board in 2010 had determined the license fee in regard to the compulsory licensing regime under Section 31-D. .On February 5, 2021, KAL Radio sent an email to Sony India seeking information about its copyright protected works. Sony India replied that its copyrighted works had been part of KAL Radio's broadcasts for many years, but nevertheless, sent a list.Thereafter, KAL emailed a notice to Sony India, purported to be a notice under Section 31-A claiming entitlement to a statutory license with an advance payment of Rs. 64,570. .Sony India claimed that the amount had been quantified without any basis and was bereft of details which was required as per Section 31-D provision. In view of that, the cheque was returned with a demand to KAL to comply with the rules. However, in March 2021, while monitoring KAL Radio's broadcast, Sony India's representatives found KAL broadcasting Sony India's recordings on their various FM Radio stations.KAL emailed to Sony India with their royalty calculation which amounted to Rs. 67,514 and a log file of its radio channels which showed that it has been using Sony India's copyrighted works In response, Sony India filed the present copyright infringement suit against KAL seeking injunction and damages..Interpreting the Section 31-D, Justice Patel observed that the provision compels copyright owner to grant license on terms and conditions provided in the statutory regime itself.He noted that the provision seemed to be rigidly controlled by the statute as it deprived the copyright owner from a freedom of choice.The corollary, Justice Patel observed, was that the the statutory licensee was also compelled negatively to not use copyright-protected works unless it has obtained a statutory license..From the limited documents pointed out for seeking ad-interim reliefs, Justice Patel absurd that Sony India hadn't refused license at all.He observed that:the notice under Section 31-D was defective and non-compliant; basis of computing the royalty/ advance was undisclosed; and KAL Radio admittedly broadcasting Sony India's copyrighted works without statutory license could not be permitted to continue..In view of the submissions and the documents, Justice Patel was satisfied that ad-interim injunction could be granted and he restrained KAL from broadcasting Sony's copyrighted works till July 2, 2021. [Read order]