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, 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
__________Plaintiff
-
Versus –
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
_______Defendant
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;
Suit is Valued
for the purposes of Court fees and jurisdiction at Rs. 1,00,600/- and Court fee
of Rs. 1,060/- is paid hereon.
The
Plaintiff named above respectfully submit as under;
The Plaintiff
and his activities:
1.
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.
2.
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 |
3. 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.
4. 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.
5. 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.
6. 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;
7.
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.
8.
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.
9.
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.
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
suit 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 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.
16.
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.
17.
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.
18.
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.
19.
The Suit is valued for the purposes of Court fees and jurisdiction in
the following manner;
(a) For an order of permanent injunction restraining the
infringement of copyright, this relief is valued for purposes of court fees and
jurisdiction at Rs. 200/- and court fee of Rs. 20/- is affixed hereon;
(b) For an order of delivery up, this relief is valued for
the purposes of Court fees and jurisdiction at Rs. 200, and Court fees of Rs.
20/- is affixed hereon;
(c) For an order of damages, the relief is valued for the
purposes of court fees and jurisdiction at Rs. 1,00,000/- and Court fee of Rs.
1,000/- is affixed hereon;
(d) For an order for rendition of accounts of profits
illegally earned by the defendant, the suit for purposes of court fees and
jurisdiction is valued at Rs. 200/- and court fee of Rs. 20 is affixed thereon.
The Plaintiff undertake to pay the applicable court fees as and when the
accounts of profits are determined precisely and accurately.
Thus the
Suit is Valued for the purposes of Court fees and jurisdiction at Rs.
1,00,600/- and Court fee of Rs. 1,060/- is paid hereon.
20.
It is, therefore, humbly prayed that this Learned Court be pleased to
grant the following reliefs to the Plaintiff;
(a) An order for permanent 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, without the requisite
consent of the Plaintiff and /or from doing any other act amounting to
infringement of the Plaintiff’s copyright;
(b) An order for rendition of accounts of profits,
directly or indirectly earned by the defendant from his infringing activities
and wrongful conduct, and a decree for the amount so found to be passed in
favour of the Plaintiff;
(c) An order for delivery up by the defendant of all
illegitimate copies of the plaintiff’s publication and anthologies or any other
material infringing the copyright of the plaintiff, lying in the possession of
the defendant and his proprietors, partners, employees, agents, servants, and
men etc.;
(d) A decree of damages Rs. 1,00,000/- in favour of the
Plaintiff and against the Defendant, for loss of reputation and goodwill of the
Plaintiff caused by the illegal activities of the Defendant;
(e) An order as to costs of the proceedings in favour of
the plaintiff;
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 District Judge, Alipore, South 24 Parganas
Title
Suit No. Of 2024
In
the matter of ;
Sri Subhro Ghosal,
__________Plaintiff
-
Versus –
Subhadeep Mazumder,
_______Defendant
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.
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
Very useful
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