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TMI Blog2001 (9) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... by the High Court affirming the order of the Trial Court granting temporary injunction. It is open to the parties to raise appropriate pleadings by amendments or otherwise. We also make it clear that it is open to the parties to seek appropriate interim orders after amendment of pleadings. - CIVIL APPEAL NO. 6122 OF 2001 SLP (C) NO. 2120 OF 2000 - - - Dated:- 3-9-2001 - S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ. R.F. Nariman, P. Chiddambaram, Chander M. Lal, Gopal Jain and Maninder Singh for the Appellant. Kapil Sibal, Dushyant Dave, Praveen Anand, Sai Krishna, Bina Gupta, Vanita Bhargava, Neel Mason, N.K. Bhardwaj, S. Sarkar, Vishwajit Singh, and Tripurari for the Respondent. JUDGMENT Rajendra Babu, J. - Leave granted. 2. The respondent No. 1 brought a suit in O.S. No. 4792 of 1998 in the Addl. City Civil Court at Bangalore on the following pleadings: "The plaintiff during the course of their business, were willing of sound recording into audio cassettes of three titles viz., kallusakkare kolliro , maduve maduve maduve and chinnada hadugalu . The copyrights of the songs containing in these three sound recording cassettes vest with the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court proceeded to further state that section 52(1)( j ) does not require prior consent from the owner of the copyright and that the owner is entitled to royalty fixed and a notice of the intention of the respondent No. 1 to make the cassettes. It is made clear that the intention of respondent No. 1 is not copying but making sound recording and in this case admittedly the musician is different singer is different, only the respondent No. 1 is using the lyrics owned by the appellant. The High Court noticed that section 52(1)( j ) recognises the right of the copyright owner and since the respondent No. 1 was making an independent recording, the recording of the respondent No. 1 and that of the appellant are different. Quality of sound recording is also different from each other. Section 20 of the Act which gives the right to the owner for 60 years which is subject to the provisions of section 20, the respondent No. 1 having complied with the requirements of section 52(1)( j ), it has to be construed that there is a deemed provisions of having given consent and, therefore, the Trial Court was right in holding that sub-clauses ( i ) and ( ii ) of section 52(1)( j ) should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in this case brings about an involuntary license by misreading section 52(1)( j ). He submitted that on a correct reading of section 52(1)( j )( i ) would be that sound recordings of that work have been made by the license of the owner of the copyright in the work, or with the consent of the owner of the right in the work. The term by license also finds a mention in section 30 of the Act. He submitted that prior to the 1994 amendment of section 52(1)( j ), the expression previously was used in sub-clause ( i ) and which has been subsequently omitted. The entirety of the case argued on behalf of the respondent No. 1 is on the pre-amended position and, therefore, the High Court and the Trial Court were wrong in their conclusion. The contention put forth on behalf of the respondents that the present case is a case of version recording and they are referred to as debased versions ; a different singer, a different orchestra and a different studio only perpetuates and compounds the act of piracy and the case put forth on behalf of respondents does not find support in any literature. He referred to an enormous amount of legal literature on the matter. 7. Shri Kapil Sibal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s sound recording copyright, it was submitted that the respondent No. 1 has merely produced a version recording which is a fresh recording using a different set of performers, musicians and artists in a studio of their own and producing a record entirely different from the original recording. Thus, it is submitted that it is important to bear in mind that a copyright in a sound recording cannot be infringed by the making a sound alike recording. A close imitation of an existing recording using alternate performers is not a copyright infringement. Further, it is submitted that section 2( m ) of the Act clearly states that in respect of a literary, dramatic or musical work, it is a reproduction with amounts to an infringement while in the case of a cinematographic film, it is a copy of the film embodying the recording in any part of the sound track associated with the film. Similarly, in the case of a record, it is only such record which embodies the same recording. Thus the use of the words records embodying the record or the record embodying the same record clearly mean that it is only when the same signal has been kept, would there be a violation. If another signal is crea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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