' ZAFAR AHMED RAJPUT, J.---This High Court Appeal is directed against the order dated 13-5-2014, passed in Suit No. 1303 of 2013, whereby C.M.A. No. 11545 of 2013, filed by the appellant/plaintiff under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Was dismissed by the learned Single Judge of this Court.
2. Facts, in brief, leading to the present appeal are that the appellant/plaintiff filed Suit No. 1303 of 2013 for declaration, permanent injunction and damages alleging therein that he is doing business of producing original audio-visual content in the name and style of Dream Station Production and he has already produced a number of popular songs and music videos. Defendant No.1 (Coca Cola Export Corporation Pakistan Branch) is a foreign limited liability company and engaged in the business of manufacturing carbonated soft drinks and the defendant No.2 is the director of local entity. Defendant No.3 is engaged in the business of audio visual production, a similar line of work as of plaintiff while, the defendant No.4 is an incorporated company and a media buying house engaged in the business of procuring, producing and airing audio visual content for various clients including defendant No.1. It is further alleged that in June, 2011 the plaintiff conceived an idea of bringing international and local stars together in a reality music show where they would collaborate and produce songs; as such, he prepared the format and thereafter went to India and recorded show and after completion of the pilot he, in order to market his show and idea, contacted many persons including Mr. Raihan Merchant and Shehan Rayer, the C.E.O and Music Project Head of defendant No.4, respectively, who are also the media buying agency of defendant No.1, and they saw his pilot show numerous times. It is case of the plaintiff that from 6th October, 2013 onward the defendant No.1 announced it Coke Studio 6 with promos on the internet and it was shocking to see that they had completely copied his idea of international collaboration and also copied the format in which they went to different studios and recorded songs with local artists; as such, they have infringed his copyright in a work entitled "Dream Music", protected by and under the Copy Right Ordinance, 1962 ("1962 Ordinance").
3. The appellant/plaintiff also moved C.M.A. No. 11545 of 2013, under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. For seeking interim injunctive relief by restraining the respondents/ defendants from airing of show Coke Studio 6 until pendency of the suit allegedly made by infringing/copying and stealing the original ideas and concept of show. The learned Single Judge vide Order dated 13-5-2014 dismissed the said application. Aggrieved by the said Order, the appellant/plaintiff has preferred this High Court Appeal.
4. Heard the learned counsel for the parties and perused the material on record.
5. Mr. Zeeshan Adhi, the learned counsel for the appellant, has contended that the learned Single Judge has failed to appreciate the facts of the case and relevant provision of law, including three ingredients of Order XXXIX, Rules 1 and 2, C.P.C. While dismissing the appellant's application for interim injunction. He has further contended that the learned Single Judge also did not appreciate that the appellant had successfully pointed out similarities in idea and expression through booklet and video that has been exactly copied by the respondents Nos. 1 and 2. He has also contended that the appellant/plaintiff has a "work" and not merely an "idea" as defined in section 2(zf) of the 1962 Ordinance, but the learned Single Judge erred in holding that the appellant has an "idea" not a work. Lastly, he has contended that the appellant has a good prime facie case for the grant of interim injunctive relief, the balance of convenience also lies in his favour and he would suffer irreparable loss if interim injunction is not granted to him.
6. On the other hand, Mr. Omar Soomro, the learned counsel for the respondent No. 4, has vehemently opposed the contentions of the learned counsel for the appellant and supported the impugned order.
7. We have given due consideration to the arguments of the learned counsel for the parties.
8. It is a fundamental principle of copyright law that a copyright does not protect an idea, but the expression of the idea. Reference may be made to the case of Computer Association International Inc. v. Altai Inc. (1992) 982 F.2d 693. In the instant case, there are possibly two works in which the appellant claims copyright i.e. Booklet and the Video presentation. Booklet is a literary work within the meaning of section 2(p) while, Video presentation is an audio-visual within meaning of section 2(ca) of the 1962 Ordinance. The learned Single Judge of this Court observed (tentatively) that the Booklet of appellant simply gives an over view of the idea conceived by him and there has been no infringement of the appellant's copyright in the Booklet, and so far as appellant's video is concerned, it is a concept ,note as it contains the description of an idea and not any expression of it in the copyright sense and that the same is not a "pilot" as Claimed by the appellant. The learned Single Judge having seen the videos of appellant and respondents Nos. 1 and 2, has also observed that the two videos are distinct and each proceeds on its own basis, and the ideas described in the two works are also distinct and, therefore, the learned Single Judge of this Court dismissed the said application of appellant concluding that he had been unable to make out a case for interim injunctive relief on the ground of infringement of a "work" under the 1962 Ordinance.
9. Principles relating to the law of interim injunction are more or less well-settled. Interim injunction, by its nature, is a preventive remedy for the purpose of preserving the status quo of the matter of the suit pending the determination of suit. It is a discretionary relief and the Courts while considering the question of grant of such relief, have to see the co-existence of prima facie case, balance of convenience and irreparable loss and injury in favour of a party seeking such relief.
Moreover, the existence of a right and its infringement are the first conditions for grant of interim injunction. Therefore, when action is brought before the Court by the plaintiff to prevent infringement of copyright, the Court would grant an interim injunction only when the right claimed by the plaintiff is clear. It cannot be granted as a matter of course in those cases where even to establish prima facie case evidence has to be produced. In the case in hand, as mentioned in para No.8 supra, the appellant/plaintiff has failed to make out prima facie case on the ground of infringement of a "work" under the 1962 Ordinance and for this reason no discretion can be exercised in favor of appellant for grant of interim injunctive relief.
10. As regard balance of convenience, it is an admitted position that the respondents/defendants Nos. 1 and 2 have already aired a number of programs viz. Coke Studio 6 since 13th October, 2014.
As such, great inconvenience shall be caused to said respondents if the injunction is granted.
11. As regard irreparable loss, it appears that the appellant/plaintiff has himself assessed the damages on account of value of original idea and he has prayed for damages of Rs. 5,00,00,000 with 15% mark-up, per annum, and compensation of Rs. 2,00,00,000 on account of mental stress/torture and loss of reputation allegedly sustained by him due to the act of the respondents/defendants; the prayers for damages and compensation are not in alternative. As such, from the pleadings of the appellant the loss allegedly suffered by him is not irreparable and can be assessed in term of money. When the appellant himself quantified the damages, plea of irreparable loss is not available to him.
12. For the forgoing reasons, we have not found any irregularity or illegality in the impugned order, requiring any interference by this Court in appellate jurisdiction; therefore, the instant appeal is dismissed along the listed application in limine.
13. Above are the reasons of our short order dated 27-2-2015 by which we had dismissed this High Court Appeal in limine.