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TMI Blog2016 (8) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... t without obtaining the Performer’s Rights Clearance Certificate thus constitutes an infringement of the R3 of the members of the Plaintiff Society. In that view of the matter, the suit is decreed and a decree of permanent injunction is issued restraining the Defendant, its officers, servants, agents and representatives and all others acting for and on its behalf from communicating to the public the Plaintiffs repertoire comprising of Performer's performances of all its members and that of the members of its sister societies which it is authorized to administer in India, without paying royalties to and obtaining a clearance from the Plaintiff Society or doing any other act infringing the Plaintiffs Performer's rights through any medium i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf from communicating to the public the Plaintiff s repertoire comprising of Performer's performances of all its members and that of the members of its sister societies which it is authorized to administer in India without paying royalties to and obtaining a clearance from the Plaintiff Society or doing any other that will infringe the Plaintiff s Performer's rights through any medium including but not limited to Radio Stations, TV and usage by Mobile Companies and violating the Right to Receive Royalties (the R3) and their Performer's Rights. 3. The suit was filed along with an application for interim injunction. Summons was issued in the suit and notice in the application for stay on 18th August 2015. The order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the first societies to be registered for protection of Performers Rights described under Section 38 of the Copyright Act, 1957 ( Act ). 7. Under Section 38 A (1)(a)(iii) of the Act, the performer s right which is an exclusive right includes the right to make a sound recording or a visual recording of the performance including communication of it to the public . The proviso to Section 38 (2) of the Act states that notwithstanding anything contained in the said sub-section the performer shall be entitled for royalties in case of making of the performances for commercial use. 8. Section 39 A (1) of the Act inter alia states that Section 18 shall with necessary adaptations and modifications apply in relation to the reproducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known singers are also its members. The Plaintiff has two categories of members i.e. ordinary members who are individual performers and associate members who are the legal heirs of the deceased performer above the age of 18 years. Each member of the Plaintiff has a separate Deed of Exclusive Authorisation (DEA) authorising the Plaintiff in respect of their R3 under Section 38A of the Act. This is in respect of their performances including performances in future. The Plaintiff is, therefore, the exclusive owner of the performance rights to the extent of the R3 under Section 38A of the Act in respect of its members. Sample authorisation deeds have been exhibited as Ex. PW-1/9 collectively. 11. It is stated that the Plaintiff s tariffs work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed DEAs for the administration of their Performer s Right in respect of their performances including future performances in favour of the Plaintiff. 14. The Plaintiff addressed a cease and desist letter dated 16th April 2015 to the Defendant asking it to obtain from the Plaintiff a Performers Rights Clearance Certificate . The notice is exhibited as Ex.PW-1/15. The Defendant, however, did not come forward to obtain such certificate. It is stated that the public performance of the Plaintiff s repertoire at the Defendant s Bar and Restaurant without permission of the Plaintiff and without payment of royalties is an infringement of the Plaintiff s Performer s Right and violation of the R3. It is stated that the Plaintiff and throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Court is satisfied that the Plaintiff has been able to prove the infringement by the Defendant of the R3 of the members of the Plaintiff Society in the performances as recorded in the CDs prepared by the Plaintiff s Investigator. The playing of songs by the Defendant in its restaurant without payment of royalty to the Plaintiff is a violation of the R3 of the performers who are members of the Plaintiff. The exploitation of the performances of the members of the Plaintiff by the Defendant by playing the said performances in its bar and restaurant without obtaining the Performer s Rights Clearance Certificate thus constitutes an infringement of the R3 of the members of the Plaintiff Society. 17. In that view of the matter, the suit i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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