COPYRIGHT INFRINGMENT BY HOTEL

Hon’ble High Court of Delhi in the case of Super Cassette Industries v. Nirulas Corner House (P) Ltd has held as under:(vide order dated 17.3.2008)

• The copyrights conferred under Section 14 of the Act consist of a bundle of rights. The owner of a copyright is entitled to assign and licence each of those rights separately or in bundles. The bundle of rights could vary in complexity depending upon the nature of the work literary, dramatic, musical recording or cinematographic films. In the case of music videos, which is essentially a cinematographic film, rights could subsist in the following works: lyrics of the song (literary), music composition (musical), choreography and performance (dramatic), the sets (artistic), the capturing of the musical work on tapes (sound recording) and the capturing of it all on a film (cinematographic film). Under section 14, the rights to reproduce, perform, adapt, translate, make copies of these works exists. Each of these rights could be assigned, reassigned and licensed. For example, the owner of the rights in a cinematographic film, can licence the literary and musical rights in the lyrics to a radio channel to be aired, and also assign the license to make copies of the cinematographic films on cassettes and CDs etc to a person and so on. The work thus follows a trail of licences.
• In relation to cable channels the plaintiff would convey the right to broadcast the work to public, they in turn would convey the right to re-broadcast the work to cable operators and what is conveyed to the customer is a license to watch the work. This trail of conveyance of the rights have to be kept in mind.
• The acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constituted a performance of such composition within the meaning of the Copyright Act, and thus violative of the owners rights.
• The expansive definition under Section 2(ff) in this case would mean that broadcast is deemed to be communication to the public.
• Under Section 51, (ii) infringement occurs, if anyone permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. The exception to this definition of infringement is contained in Section 52.
• In terms of Section 52 (1) (k) the causing of a recording to be heard in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein, is not deemed an infringement. Similarly an exception, involving the communication of a work the public, or of a sound recording, in the course of any bona fide religious ceremony is not a public performance (Section 2(1) (za)). These provisions are pointers to the legislative intent of treating use of televisions and sound recordings, in hotels as communications to the public; the intention appears to be reinforced by specific exception, from Section 52 to the category of what is not infringement, the use of recording to be heard in a hotel.
• While on the subject, it may not be out of place to observe that the two categories hotels and similar commercial establishment gives a clue to Parliamentary intention to exclude the operation of such categories of establishments from the benefit of what are obviously deemed not infringements. Such provisions should receive a restricted interpretation, having regard to the nature of the expressions used. Thus, the Court will not extend the law beyond its meaning to take care of any perceived broader legislative purpose. Here ``strict'` means merely that the Court will refrain from exercising its creative function to apply the rule announced in the statute to situations not covered by it.
• All establishments cannot come within the fold of the expression. There can even be a class of situations where it can conceivably be argued that the service provided is so integrally connected with the communication to the public, that it may not fall within Section 51.
• the court must consider the question of proportions, in the case of a copyright infringement action.
• placing of a common television in a motel reception, accessible to all but without keeping a television set, in each hotel room, or placing such a set in a grocery shop for the recreation of the owner, or a wayside restaurant, may not fall within the mischief of the definition of infringement.
• proportion in this context, would necessarily imply the nature of the activity of the establishment and the integral connection the infringement complained of has with it.
• the use of television or radio in a city bus can be contrasted with such use in an aircraft.
• that the plaint does not disclose any cause of action;
• the court cannot go behind the pleadings to hold that the materials or pleadings do not disclose any triable cause of action.
• That there cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. The court cannot reject a part of the plaint, if defects are noticed in it for any reason
• the defendants are using cable connection and extending facilities of television to their patrons in the hotel rooms, for payments are received.
• prima facie, the content of songs and videos broadcast are communications to the public......