District
: South 24 Parganas
In the Court of the Learned Additional Chief
Judicial Magistrate, Baruipur,
South 24 Parganas
Complaint Case no. of 2024
In the
matter of ;
Sri Subhro Ghosal, Son
of Uday Sankar Ghosal, aged about 41 years, residing at Premises being No. 331,
Jyotish Roy Road, Kolkata - 700053, Police Station – Behala, 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, Mobile
No.: 9874077772, Email : subhro.ghosal@gmail.com
__________Complainant
-
Versus –
Police Station : Narendrapur
Subhadeep Mazumder, Son
of Sri Manik Ranjan Majumder, residing at Premises being No. 2949, Kalyani
Apartment, Flat 3B, Garia Garden, Post Office Building Garia Garden, Police
Station – Narendrapur, Kolkata – 700084, District South 24 Parganas. Mobile No.
9830786126, Email : thebreathingcelluloid@gmail.com
_______Accused
An
application under Section 223 of the Bharatiya Nagarik Suraksha Sanhita’ 2023
(formerly Section 200 Cr.P.C.);
For
Offences committed to be punishable under Section 63 & 65 of the Copyright
Act, 1957, read with 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,
by the Accused Person;
The
Complainant named above respectfully submits as under;
The Complainant
and his activities:
1.
The Complainant
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.
2.
The Complainant
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 Complainant
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 |
3.
In
view of the above stated facts the Complainant 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 Complaint as Annexure – “A” (hereinafter referred to as “the Complainant’s
publication”). The Complainant 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 Complainant.
4.
The Complainant
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 Complainant is the
owner of copyright in his publication, and have protectable interests in the
copyright subsisting in the same.
5.
The Complainant
respectfully submits that since the copyright in the Complainant’s publication
vests with the Complainant, 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 Complainant
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 Complainant, infringes the Complainant’s rights under
the Copyright Act, 1957.
6.
The
Complainant 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 Accused
and his Infringing Activities;
7.
It
is submitted that Suddenly, the Complainant 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.
8. The said Short-film
taken the entire Story of the literature work namely “TELEPHONE”, without any
consent or written permission from the Complainant. Therefore infringing the
copyright materials with full knowledge towards the wrongful gain in earning
money from the said Youtube channel by the Accused.
9.
The
Complainant informed such facts of infringing the copyright to Youtube
authority concern and thereby the Youtube withheld the said Short film for the
time being.
10.
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.
11.
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.
12.
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 Complaint
shall be within the discretion of the Court.
13.
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.
14.
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.
15.
However,
the Complainant is in belief that good-sense will prevail with the Accused
therefore prior to proceed into any litigation, the Complainant 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 Accused youtube channel www.youtube.com/@thebreathingcelluloid9070 and to pay the loss of money as of Rs. 40 Lakhs, sustained by the Complainant
due to the Accused 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.the said notice also served on the Police Authority, including
the Narendrapur Police Station.
16.
The
Accused 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 Complainant through
his Learned Advocate Anindya Chakravarty, Advocate, stating inter alia denied
the contents and purports of the Complainant and claimed to be his original
work. The Narendrapur Police Station is well within the information though did
not draw any FIR against the accused person.
17.
The
cause of action in the present Complaint first arose on 14th day of
November’ 2024, while the Complainant 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 Complainant’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 Complainant
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 Complainant arranged to sent Cease and
Desist Notice dated 25th November’ 2024 to the Accused and the Accused
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 Accused
is stopped infringing vide URL of alleged infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw
18.
That
thus in the given facts and circumstances, the accused person has committed
offences punishable under 63 & 65 of the Copyright Act, 1957, read with 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, by the
Accused Person.
19.
That
the Complainant being victim seeks the Punishment of the accused person for his
offences committed to be punishable under 63 & 65 of the Copyright Act,
1957, read with 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,
by the Accused Person.
20.
That
this petition is made bonafide and in the interest of administration of
Justice.
In the given facts &
circumstances, it is prayed before the Learned Court that your Honour would
graciously be pleased to issue process against the accused person in terms of
the provision of Section 227 of the Bharatya Nagrik Suraksha Sanhita 2023
(Section 204 Cr.P.C.), and to punish the accused person for his offences
committed to be punishable under 63 & 65 of the Copyright Act, 1957, read
with 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,
by the Accused Person, in the interest of administration of Justice, and /or to
pass such other necessary order or orders, as your Honour may deem, fit, &
proper, for the end of Justice.
And
for this act of kindness, the Complainant as in duty bound shall ever pray.
WITNESSES;
1.
The
Complainant;
2.
The Relatives & friends of the Complainant;
3.
The Business Associates of the Complainant;
4.
The
Complainant’s literature/ drama work which has been cited as “TELEPHONE”
having Registration No. L-136483/2023, dated 21st day of November’
2023;
5.
Cease
and Desist Notice bearing Reference no. SS/SM/3108-9216/24, dated 25th
November’ 2024;
6.
Reply
dated 28th November’ 2024, of the Accused;
7.
Other Documents, if any;
Verification
I, Subhro Ghosal, the Complainant here in
the present Complaint. 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 Baruipur Criminal 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 Complainant in the present Complaint
instituted by me against the Accused. 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.
3. That no FIR has ever been lodged by the Narendrapur
Police Station on the information given through letter.
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 : Baruipur
Court;
In the Court of the Learned Additional Chief Judicial Magistrate,
Baruipur, South 24 Parganas
Complaint
No. Of 2024
In
the matter of ;
Sri Subhro Ghosal,
__________Complainant
-
Versus –
Subhadeep Mazumder,
_______Accused
An application under Section 223 of the Bharatiya
Nagarik Suraksha Sanhita’ 2023 (formerly Section 200 Cr.P.C.);
Advocate – on
– Record for the Complainant;
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
Very useful
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