On a separate note, I am absolutely intrigued by the nature of orders being passed by the Delhi High Court. Of the 6 cases that I examined on the website of the Delhi High Court, ex-parte injunctions were granted in 3 three cases on the very first day itself while in the remaining 3 cases the Delhi High Court ordered the issuance of notice on the first day in order to give the defendants to represent themselves before being proceeded against.
It is a little disturbing to note the lack of uniformity within the Delhi High Court itself. While Justice Midha grants ex-parte injunctions to IPRS on the first day itself, Justice V.K. Jain does not grant interim injunctions without giving the defendant an opportunity to be heard.
Even more troubling is the wording of the orders granting interim injunctions. The following is the extract of one of the orders passed in C.S. (OS) No. 1491 of 2011 by Justice Midha against Mayank Sharma Pvt. Ltd.:
“2. The plaintiff has made out a prima facie case for grant of ex- parte ad-interim injunction and therefore, the defendants, its officers, servants, agents and representatives are restrained from performing or communicating to the public the plaintiff’s repertoire comprising of works of all its members and works of its sister societies which it is authorized to administer in India, without obtaining a licence from the plaintiff or doing any other act infringing the plaintiff’s copyrights till the next date of hearing.”
Two questions arise in this backdrop:
(i) Why does the order require the defendant to restrain from infringing not only the works of IPRS but also the works of its ‘sister societies’? What is this sister society? Is it PPL? It’s interesting to note that while IPRS has been filing infringement suits rather liberally, PPL (as per the Delhi HC website) filed its last such suit in December, 2010 – C.S.(O.S) No. 2664 of 2010. Is PPL one of the ‘sister-societies’ referred to in the order? Is PPL therefore subsidizing the cost of its own litigation by using the injunctions granted to IPRS to negotiate its own licences? Is this legally permissible under the Copyright Act, 1957? Or have these alleged infringers taken a licence from PPL but not IPRS? All questions, no answers though.
(ii) The second question pertains to the use of the words “plaintiff’s repertoire comprising of works of all its members”. It’s surprising that the Delhi High Court, often claimed to be the most IP-savvy court, does not use the language prescribed by the statute. In this case the appropriate terminology is not ‘repertoire’ but ‘register of owners’ as defined in Rule 14-I of the Copyright Rules, 1958. The definition which I reproduce in pertinent part in the following: “A register of owners of copyright and other rights to be called the “Register of Owners” in respect of which the copyright society has been authorised by the owners to issue or grant licences. The register shall contain the names of the owners, their addresses, the nature of rights authorised to be administered by the copyright society, date of publication of the work, the date on which the copyright society becomes entitled to and the duration of such right.” From the definition above it is but obvious that IPRS is required to maintain in the register of its owners, the works assigned by them to IPRS, the nature of the rights and the date from which such rights were licenced. However when IPRS submits its information to the Registrar of Copyrights under Rule 14-P it submits only the list of the names of its members, which is NOT the same as the definition of ‘Register of Owners’. The current format of the Register of Owners maintained by IPRS is available over here and here. The entire point of a ‘Register of Owners’ is to ensure a minimum degree of transparency which would enable content users to clarify the exact nature of rights held by IPRS. No ‘Register of Owners’, no transparency. Plain and simble.