In the Court
of the Learned District Judge, Alipore, South 24 Parganas
Title
Suit No. 09 Of 2024
In
the matter of ;
Sri Subhro Ghosal,
__________Plaintiff
-
Versus –
Subhadeep Mazumder,
_______Defendant
An
application under Order 39 Rule 1 & 2, read with Section 151 of the Civil
Procedure Code’ 1908;
The
Plaintiff named above respectfully submits as under;
The Plaintiff
and his activities:
1. The Plaintiff has preferred the above referred Suit for
Permanent Injunction restraining Infringement of Copyrights, Damages, Rendition
of Accounts of Profits, Delivery Up, etc., under Section 55 of the Copyright
Act, 1957, against the defendant, before the Learned Court.
2.
The Plaintiff
is a Story Writer by his occupation. He engaged himself in writing his story
from his own thoughts and expressions. His several stories has been published
time and again by the different publishers under due permissions of him. His
Stories are very popular and largely acceptable by the Story readers. His Stories
are mostly copyrights, following due process of Law as may be prescribed by the
concerned Government Authority, in this regard.
3.
The Plaintiff
has published a book in
vernacular Bengali Languages, being a literature in his own writings and
thoughts and the same has been cited as “TELEPHONE”. Subsequently the plaintiff
had approached the concerned Government Authority for the Registration of the
said literature under the Copyright Act, 1957 & rules made thereunder, vide
Diary No. 23619/2022-CO/L, dated 17th November’ 2022, which has
finally registered vide Registration No. L-136483/2023, dated 21st
day of November’ 2023. Therefore the writing / drama being cited as “TELEPHONE”
have been duly recognized under the Copyrights as under;
|
Number |
Class of Work |
Title of Work |
Applicant Name |
Communication Address |
Status |
|
23619/2022-CO/L |
Literary/ Dramatic |
TELEPHONE |
SUBHRO GHOSAL |
APPAYAN APARTMENT,
GROUND FLOOR, FLAT-GC, 108/11/(50) PURBACHAL ROAD (NORTH), HALTU, KOLKATA,
WEST BENGAL-700078 |
Registered |
4. In
view of the above stated facts the plaintiff assailed absolute lawful rights on
his literature which has been cited as “TELEPHONE” having Registration No.
L-136483/2023, dated 21st day of November’ 2023, is filed in the
present suit as Annexure – “A” (hereinafter referred to as “the Plaintiff’s
publication”). The Plaintiff ensure through his distribution networks that the
aforesaid publication is available for sale in sufficient quantities so that
the readers community has easy access to genuine content prescribed in the
story of the plaintiff.
5. The Plaintiff submit that the publication mentioned in
Annexure – “A” constitute “literary works” as defined in Section 2(o) of the
Copyright Act, 1957. Therefore, by virtue of Section 13 read with Section 40
and 41 of the Copyright Act, 1957, copyright in his works subsists in India. It
is submitted that the Plaintiff is the owner of copyright in his publication,
and have protectable interests in the copyright subsisting in the same.
6. The Plaintiff respectfully submits that since the
copyright in the Plaintiff’s publication vests with the Plaintiff, he is vested
with certain exclusive rights as envisaged by the Copyright Act, 1957, with
regard to his publication. Specifically, Section 14(a)(i) & (ii) of the
Copyright Act states that the Plaintiff has the exclusive right to do or
authorize a person to do the acts below with respect to his publication or any
substantial portion thereof ;
(i)
To reproduce the work in any material form including the storing of it
in any medium by electronic means;
(ii)
To issue copies of the work to the public not being copies already in
circulation.
Therefore, any third party that reproduces these works
and/ or issues copies of the works, or any substantial portion thereof, without
authorization from the Plaintiff, infringes the plaintiff’s rights under the
Copyright Act, 1957.
7. The
Plaintiff presently engaged in preparation of a Movie on his said literature
which has been cited as “TELEPHONE” having Registration No. L-136483/2023,
dated 21st day of November’ 2023. The said Movie pursuing the cost
of Rs. 40 Lakhs around, and my client has incurred substantial money towards
making of the said Film on his said literature/ drama.
The Defendant and his Infringing Activities;
8.
It
is submitted that Suddenly, the Plaintiff came across a Short Film on a
following Youtube Channel, on 14th day of November’ 2024;
The Breathing Celluloid
www.youtube.com/@thebreathingcelluloid9070
URL
of alleged infringing video :
https://www.youtube.com/watch?v=SC9KlgrwyAw
Short
Film : THE VOICE ARTIST, by Subhadeep Mazumder, Published on 9th
November’ 2024.
9.
The said Short-film taken the entire
Story of the literature work namely “TELEPHONE”, without any consent or written
permission from the Plaintiff. Therefore infringing the copyright materials
with full knowledge towards the wrongful gain in earning money from the said
Youtube channel by the defendant.
10.
The
Plaintiff informed such facts of infringing the copyright to Youtube authority
concern and thereby the Youtube withheld the said Short film for the time
being.
11.
The
Copyright Act, 1957, is the mere need of the current globalised India as ubi
jus ibi remedium, when there is wrong there is a remedy. The recent
evidence of copyright infringement are largely happened not only in physical
form but also in the digital sphere. The intellectual property protection in
the form of copyright protection incentivizes innovation and artist and they
are motivated to engage in practicing the same. The Current dominance of Social
–Media and its usage world-wide. The Current evidence of copyright infringement
cases on the record and off the record is majorly sourced from social media and
social media’s streaming platforms.
12.
The
Copyright Act, 1957, plays a crucial role in safeguarding the rights of
copyright holders, including those in the film industry. Recent instances of copyright
infringement, as exemplified by the case of Yash Raj Films Pri8vate Limited –
Versus – Triller Inc. CS (COMM) 9/2023, underscore the importance of addressing
the role of intermediary platforms in combating such violation. The case
highlights the liability of the platforms that enable users to extract and
share copyrighted content without any proper authorization.
13.
As
per Section 55(1) of the Copyright Act, 1957, a copyright owner is entitled to
file a suit for injunction, damages, accounts, etc. against the infringer
before Court having jurisdiction. The types of injunctions a copyright owner
can claim are Anton Piller order, Mareva junction, permanent & interim/
interlocutory injunctions. The awarding of cost in favour of any party to the
suit shall be within the discretion of the Court.
14.
Besides
Civil Liability, Criminal Liability can also arise against the infringer of the
Copyright. Section 63 of the Act provides that a person who knowingly infringes
or abets infringement of a copyright shall be punished for a term between six
months to three years and also a fine shall be imposed upon the infringer for
an amount between Rs. 50,000/- to Rs. 2,00,000/-. In case, an infringer whose
been punished under Section 63 of the Act once, commits the same offence again,
the infringer shall be punished for a term between one to three years along
with fine between one to two lakhs rupees. As per Section 64 of the Act,
provides for power of police officer for seizure in case of offence under
Section 63 of the Act. The Police Officer has the power to seize without
warrant, all copies of the work, and all plates used for the purpose of making
infringing copies of the work, wherever found and produce the same before the
Learned Magistrate. Punishment provided under Section 65 of the Act for
possession of any plate for purpose of making infringement copies of any work
in which copyright subsists may extend to two years along with fine.
15.
That’s
apart such infringing is also punishable under Section 66 of the Information
Technology Act’ 2000 amended in 2008, as well as in terms of Section 316, 336,
338, 303, & 318(4), of The Bharatiya Nyaya Sanhita, 2023.
16.
However,
the Plaintiff is in belief that good-sense will prevail with the defendant
therefore prior to proceed into any litigation, the plaintiff seeks the Cease
and Desist from the infringing the said literature work vide https://www.youtube.com/watch?v=SC9KlgrwyAw and the publication
and play on the defendant’s youtube channel www.youtube.com/@thebreathingcelluloid9070 and to pay the loss of money as of Rs. 40 Lakhs, sustained by the
plaintiff due to the defendant’s infringing, and to Compensate for a sum of Rs.
10 Lakhs for harassment, anxiety, and loss of time, etc. at the earliest preferably within period of
fortnight from the date of receipt of the notice sent through his Learned
Advocate Sanjib Saha vide Cease and Desist Notice bearing Reference No.
SS/SM/3108-9216/24, dated 25th November’ 2024.
17.
The
defendant is in receipt of the said Cease and
Desist Notice bearing Reference No. SS/SM/3108-9216/24, dated 25th
November’ 2024, and made reply to the said notice of the plaintiff through his
Learned Advocate Anindya Chakravarty, Advocate, stating inter alia denied the
contents and purports of the plaintiff and claimed to be his original work.
18.
The
cause of action in the present suit first arose on 14th day of
November’ 2024, while the Plaintiff came across a Short Film on a Youtube
Channel www.youtube.com/@thebreathingcelluloid9070 Short Film : THE
VOICE ARTIST, by Subhadeep Mazumder, Published on 9th November’
2024, vide URL of alleged infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw which
contained the contents and purports truly consisted in the plaintiff’s
literature/ drama work which
has been cited as “TELEPHONE” having Registration No. L-136483/2023, dated 21st
day of November’ 2023. The Cause of action arose again while the Plaintiff
informed such facts of infringing the copyright to Youtube authority concern
and thereby the Youtube withheld the said Short film for the time being. The
cause of action further arose while the Plaintiff arranged to sent Cease and
Desist Notice dated 25th November’ 2024 to the defendant and the
defendant replied on the said notice by Letter dated 28th day of
November’ 2024. The Cause of action is a continuing one and shall continue
until the defendant is restrained by an order of injunction of this Learned
Court.
19.
This Learned Court has jurisdiction by virtue of Section 62(2) of the
Copyright Act, 1957, since the cause of action has arisen within the
jurisdiction of this Learned Court, and also confers the jurisdiction on this
Learned Court as the Plaintiff is residing and carrying his business within the
territorial jurisdiction of this Learned Court. Further the Learned Court has
jurisdiction by virtue of Section 20 of the Code of Civil Procedure, 1908,
since the defendant is carrying on his business within the territorial
jurisdiction of this Learned Court by way of URL of alleged infringing
video : https://www.youtube.com/watch?v=SC9KlgrwyAw
which contained the contents and purports truly consisted in the plaintiff’s
literature/ drama work which has been cited as “TELEPHONE” having
Registration No. L-136483/2023, dated 21st day of November’ 2023.
20.
That the Plaintiff has good primafacie case in this suit and balance
of convenience and inconvenience always lies in favour of the Plaintiff to
obtain an order of ad-interim injunction in respect to the plaintiff’s
publication being Annexure –“A”.
21.
That the defendant is very
adamant in taking law in his hand and in pursuing his illegal forceful in
continuing his URL of alleged infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw Need earliest intervention of the Learned Court to stop the
illegal activities of the Defendant.
22.
That the present injunction application
is extremely urgent in nature and any delay shall cause irreparable loss and
injury to the plaintiff.
23.
That this application is made bonafide
and in the interest of administration of justice.
24.
It is, therefore, humbly prayed that this Learned Court be pleased to
grant the following reliefs to the Plaintiff;
An order
for ad-interim injunction restraining the Defendant, his partners, proprietors,
his officers, servants, agents, men, and all persons, firms, corporations, and
associations in active concert or participation with the defendant from
photocopying / reproducing and issuing illegal / unauthorized copies of the
Plaintiff’s publication or substantial portion thereof, including but not
limited to publication of the plaintiff included in Annexure –“A” in any manner
whatsoever, and /or from doing any other act amounting to infringement of the
Plaintiff’s copyright, till the disposal of the present Suit, in the interest
of administration of Justice;
Any further order as this Learned Court may deem, fit,
and proper in the facts and circumstances of the case.
Annexure –“A”
The
Plaintiff’s literature/ drama work which has been cited
as “TELEPHONE” having Registration No. L-136483/2023, dated 21st day
of November’ 2023.
|
Number |
Class of Work |
Title of Work |
Applicant Name |
Communication Address |
Status |
|
23619/2022-CO/L |
Literary/ Dramatic |
TELEPHONE |
SUBHRO GHOSAL |
APPAYAN APARTMENT,
GROUND FLOOR, FLAT-GC, 108/11/(50) PURBACHAL ROAD (NORTH), HALTU, KOLKATA,
WEST BENGAL-700078 |
Registered |
Documents
relied on by the Plaintiff;
(a) The
Plaintiff’s literature/ drama work which has been cited
as “TELEPHONE” having Registration No. L-136483/2023, dated 21st day
of November’ 2023;
(b) Cease
and Desist Notice bearing Reference no. SS/SM/3108-9216/24, dated 25th
November’ 2024;
(c) Reply
dated 28th November’ 2024, of the defendant;
Verification
I, Subhro Ghosal, the Plaintiff here in
the present Suit. I am acquainted and conversant with the material facts as
stated in the Plaint. I verify and sign this plaint on ____the day of December’
2024, at Alipore Judges’ Court.
Affidavit
I, Subhro Ghosal, Son of Uday Sankar
Ghosal, aged about 41 years, residing at Premises being No. 331, Jyotish Roy
Road, Kolkata - 700053, Police Station – Jadavpur, District – South 24
Parganas, and also at “Appayan Apartment” Ground Floor, Flat-GC, Premises no. 108/11/(50), Purbachal Road (North), Haltu, Police Station –
Kasba, Kolkata - 700078, do hereby solemnly affirm and says as
follows;
1. I am the Plaintiff in the present suit instituted by
me against the defendant. I am acquainted and conversant with the material
facts. I am competent to swear this affidavit.
2. The statements made in the paragraph no. 1, 2, 3, 4,
5, 6, 7, 8, & 9, are true to the best of my knowledge and belief and the
rests are my humble submissions before the Learned Court.
The
statements are true to the best of my knowledge and belief.
DEPONENT
Identified by me,
Advocate
Prepared
in my chamber,
Advocate
Date :
_____December’ 2024;
Place :
Alipore Judges’ Court
In the Court of the Learned 5th Civil Judge (Senior
Division), Alipore, South 24 Parganas
Title
Suit No. Of 2024
In
the matter of ;
Sri Subhro Ghosal,
__________Plaintiff
-
Versus –
Subhadeep Mazumder,
_______Defendant
An application under Order 39 Rule 1 & 2, read
with Section 151 of the Civil Procedure Code’ 1908;
Advocate
– on – Record for the Plaintiff;
Sanjib
Saha, Advocate
High
Court Calcutta
Chamber : P-16, Purbasha Pally, Dr. A.K. Paul Road,
Kolkata – 700034, Mobile No. 9051570268, 7003781930, Email : sanjibsaha.smc@gmail.com
NIC
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