Saregama India Limited vs Puneet Prakash Mehra and Others

Patherya, J.—By an order dated 16.4.2010 an order was passed in terms of prayers [f], [g], [h] and [i] till 20.4.2010. The petitioner seeks extension of such interim order while the respondents seek vacating thereof.

Counsel for the petitioner submits that Clause 3A of the agreement of 1981 assigned to it -[i] the copyright for making records of all contract works and [ii] the copyright, performing right and all other rights, title and interest in the literary, dramatic and musical works. Therefore, it was entitled to execute the agreement dated 11.2.2010. Clause 4[a] and [c] recognises the other rights assigned by the producer in favour of the company. In fact all rights and obligations to the agreement were to apply to the works included or to be included in the producer''s film commenced or under production. Royalty both physical and non-physical has been paid to the Mehras. From a reading of the statement of royalty it will appear that synchronization fees or fees on account of films has also been paid and the same has been accepted. Therefore, the agreement is not restricted to payment of royalty in respect of records or manufacture and sale of records alone. All other rights, title and interest, therefore, be not given a restricted meaning and in view of Section 2[a][iv] and [v] which defines adaptation all that has been done by the agreement of 11.2.2010 is to allow re-recording and synchronization of the works which it is entitled to as per the agreement. The agreement in present form came up for consideration in the case reported in Gramophone Company of India Limited Vs. Shanti Films Corporation and others, and has been approved. By virtue of Section 14[a][iv], [vi] and [vii] the company has exclusive right to make any adaptation of the literary, dramatic or musical works assigned to it and all that is done by the said agreement is to adapt the lyrics and music. Therefore, for all the said reasons, the interim order passed be continued.

Counsel for the Mehras submits that by the agreement of 1981 all that was assigned was the sound recording and the said was also understood by the company as it obtained registration only in respect of the sound recording from the Registrar of Copyrights in 2000. By virtue of such copyright the company was vested with a right to make records of all contract works. Besides the aforesaid the company also was given the copyright, performing right and all other rights in the literary, dramatic and musical works embodied in the producer''s films. Therefore, the company was entitled to exercise rights in respect of such contract works as in the producer''s films. It was for purposes of manufacture and sale of records that the sound track was to be exclusively made over to the company by the producer Mehra and it is in respect of the records that royalty was paid. The additional royalty paid was in respect of performances of contract works and, therefore, was in addition to the royalty paid on account of records. By virtue of the said agreement, therefore, the petitioner company is not entitled to allow the said works to be exploited in the film "Houseful". The word ''synchronization'' as held in Indian Performing Right Society Ltd. Vs. Eastern Indian Motion Pictures Association and Others, is the combination of the visual portion and the audio portion. No specific clause has been disclosed by the company, which warrants exploitation of the said song in the film "Houseful" although sought by letter. The suit of the company is based on groundless threats and, therefore, restrain of civil remedy sought. Suits have now been filed by the Mehras initially in the Mumbai High Court and on the undertaking to withdraw the same a suit has also been filed in this Court. Therefore, restrain orders be vacated.

Having considered the submissions of the parties, the only document that needs to be construed at this stage is the agreement of 1981 and the rights, which flowed therefrom. From a reading of the said agreement of 1981 under Clause 3A producer Mehra transferred and assigned absolutely to the petitioner company - [i] the copyright to make records of all contracts works and [ii] the copyright, performing right and all other rights in the contract works embodied in its film. The phrase, which needs consideration, is "all other rights". The business of the petitioner as pleaded in paragraph 2 is sale and manufacture of sound recordings. Under the agreement of 1981 too, the petitioner company acquired a right in the sound track and, therefore, was assigned rights vis-a-vis such sound track as embodied in the producer''s films. It was for such physical and non-physical rights that royalty was paid. In fact, from a reading of Clause 5 of the agreement of 1981 it appears that the producer was to make available exclusively to the petitioner company the sound track and both the parties were to ensure the security of such sound track. To assume that such right extended to allow exploitation of the sound track in another film would be contrary to the terms agreed between the parties.

The agreement of 11.2.2010 is between the petitioner company and one Super Cassettes Industries Ltd. and Nadiadwala Grandson Entertainment Pvt. Ltd. Such agreement is in the nature of a licence and if it was restricted to re- recording the agreement could not have been faulted. The agreement does not stop there. In fact, it has proceeded to allow exploitation of the said song in the film "Houseful" This exploitation in the film is dehors the agreement between the company and Prakash Mehra Production. Accordingly, the order passed in terms of prayer [i] of the Notice of Motion is vacated. In view of the suit filed by the Mehras although the reliefs in such suit is not known, the orders passed in terms of prayers [f], [g] and [h] is on the premise that the threats are baseless. In view of the proviso to Section 60 the orders passed in terms of prayers [f], [g] and [h] cannot be continued and, is accordingly, vacated.

Another reason for vacating the order is the meaning given to adaptation in Section 2[a][iv] and [v] of the Copyright Act, 1957 which involves re-arrangement. Such re-arrangement would only be in respect of the contract works embodied in the producer''s films and none else.

The findings above are prima facie.

Accordingly, directions are given for filing affidavits. Affidavit in opposition within three weeks from date; reply thereto, if any, within two weeks thereafter. Matter to appear in the list six weeks hence.

Statement of royalty be kept on record.

Prayer for stay made is considered and refused.

All parties concerned to act on a photostat signed copy of this order on the usual undertakings.