ISSUE VIII : “copy” right or face the music!

INTRODUCTION

In the midst of the ever-growing status and stature of the Indian entertainment industry, originality, creativity, and intellectual property often end up paying the price. Lifting tunes and storylines without giving its creator his due has become a common and a worrisome feature in the Indian film fraternity.

Given this disturbing scenario, the recent order of the Mumbai High Court holding high profile film producers guilty of plagiarizing the music composed by an advertisement jingle composer is a welcome pronouncement. It sets an excellent precedent on copyright infringement and will act as a deterrent for several others who brazenly indulge in plagiarism.

This issue discusses the facts and decision of the recently pronounced verdict,1 an overview of the copyright laws in India, judicial interpretation of copyright infringement and finally the copyright situation in the Indian entertainment industry.

1 The Court’s verdict

As recently as last week, an advertisement jingle maker (“Plaintiff”) moved the Mumbai High Court for seeking damages from one of the leading film producers and the music director (“Respondent”) of a Bollywood movie. The allegation was that the Respondent had lifted the tunes of the Plaintiff, which he had composed for a television commercial of cell phones and used it in their movie without taking his consent or giving him the credit for the songs. The Plaintiff wanted an interim stay to the film’s release and damages.

The Judge noted three points which went against the Respondent. Firstly, an affidavit was given by an expert, which affirmed that the tunes are similar. Secondly, on hearing both the jingle and the movie song, the Judge himself observed that, “to his untrained ear, both the tunes appeared similar.” The test, which is usually applied in such cases, is whether the song reminds a layman of an earlier work. If the answer to the question is in the affirmative then it is held to be a case of copyright infringement. Finally, an indirect admission by the Respondent that a small portion of the advertisement jingle was used in the songs led the Court to conclude that the Respondent had infringed the copyright of the Plaintiff.

The Court held the Respondent to be guilty of plagiarizing the Plaintiff’s songs and restrained the former from releasing the movie with the copied songs. However, after the pronouncement, the Plaintiff consented to assign the rights of his music to the Plaintiff and the Court allowed the latter to release the movie with all the songs. Nonetheless, the Respondent had to pay INR 20 million2 as damages to the Plaintiff.

The case marks a watershed and a wake-up call for the Indian film industry where copyright violations are rampant. Although many have questioned the timing of the suit (being just a few days before

the release of the movie) for it did not give an adequate opportunity to the Respondent to react yet on the basis of the available facts, it is clear that it is a case of copyright infringement.3

It is a landmark order, firstly, for it sends a strong signal to the Indian film industry, which has been notorious for blatantly lifting storylines from Hollywood and elsewhere without acknowledging the creators’ rights. Secondly, this case also elucidates that if a swift action is taken by the judiciary, the rights of the effected parties can be timely addressed.

2 Infringement and copyright protection in India

The Copyright Act, 1951 (“The Act”) provides adequate copyright protection in India in line with international standards. India is also a part of the Berne Convention and Trade Related Aspects of Intellectual Property Rights agreements.

As is well known, a copyright owner has several exclusive rights. If any person exploits any of the rights without the owner’s authority, it constitutes copyright infringement. The test of infringement is the existence of two elements: (i) presence of sufficient objective similarity between the infringing work and the copyright work or a substantial part thereof (ii) the infringing work must be derived from the copyright work.4

The Courts usually apply the principle of “Lay observer” test to ascertain if there has been a copyright infringement or not.

The Indian Supreme Court in R.G.Anand v Deluxe Films and Others5 laid down the principle that “one of the surest and safest tests to determine whether or not there has been a violation of copyright is to see if the reader, spectator or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”

In Association Electronic & Electric Industries v Sharp Tools,6 it was observed that in dealing with a question of copyright infringement, the court should test on the visual appearance of the object, drawing, design or work in question and apply the “Lay observer” test i.e. whether the persons who are not experts in relation to objects of that description, the object appears to be a reproduction. If to the “lay observer”, it does not appear to be a reproduction, there is no infringement of the copyright work.

The same “Lay observer” test was applied by the Mumbai High Court in the recently concluded case of copyright infringement where the Judge heard both the tunes and concluded that to a music illiterate like him, the movie song reminded him of the advertisement tune.

In case of copyright infringement, there are three kinds of available remedies viz. civil, criminal, and administrative. While sections 51-62 of the Act stipulate civil remedies, sections 63-70 of the Act provides for criminal action against infringement of protected work. Civil remedies include injunction, damages, and rendition of accounts of profits. Criminal remedy can be in the form of imprisonment of the accused, imposition of fine or both or seizure of infringing copies. Administrative remedy consists of moving the Registrar of Copyrights to ban the import of infringing copies into India when the infringement is by way of such importation.

However, in spite of the adequate legislation, the problem lies in the effective implementation and enforcement of the laws. The unwieldy litigation process and the corrupt face of the Judiciary further add to the woes of the innocent right holders.

3 Copyright and the Indian entertainment industry

The Indian entertainment industry is a flourishing industry and is expected to touch US $27 billion by 2011 at an annual growth rate of 16.7%.7 However, despite the phenomenal growth, one of the alarming features noticeable in the show business is the manner in which storylines are effortlessly copied and presented to the audience and termed as being “inspired” from Hollywood or elsewhere. This is in fact a serious offence. So far, none of the Hollywood studios have taken any copyright infringement action against the infringers but with increasing global presence and exposure, it may not be long before a legal action is instituted against the industry.

In 2003, for the first time, a case of copyright infringement was initiated by the author Barbara Taylor Bradford against Sahara Media Entertainment.8 The author alleged that one of her best selling novels “A woman of substance” was being made into a television serial running into 300 episodes in India without taking her consent or buying the rights of the book. The theme of both the book and the serial was the rise of a woman from poverty to extreme wealth. A suit was filed by the author in Kolkata High Court seeking an injunction for restraining Sahara from airing the serial. The Court granted the ad interim injunction. Sahara appealed the decision and the higher bench of the same High Court vacated the stay.

Immediately thereafter, the author moved a Special Leave Petition before the Supreme Court to restrain the airing of the serial. The Supreme Court reinstated the injunction but by then the serial had already premiered on the television. When the case came up for hearing in the Kolkata High Court, it was ruled against the author and the Court held that there was no proof of plagiarism. The Court held that the Act protects expressions and not ideas; therefore, the author cannot have a monopoly over the idea. Infringement can be established only by comparing and showing similarity of details, events, situations, expressions of language and imagination. The High Court levied heavy fine on the author for every week’s delay in airing the serial. On an appeal to the Supreme Court by the author, the High Court’s decision was upheld but the damages were reversed.

Though the author lost the copyright infringement case yet it marked a significant moment for it was one of the first few instances when a case of plagiarism was initiated against the Indian entertainment

industry. It gained a lot of media attention and public interest. Perhaps, cases like this and the recent one will encourage copyright owners both in India and abroad to take action against the infringers and protect their creative works.

CONCLUSION

It is imperative to recognize individual creation. This is especially important in creative field where ideas play a crucial role. Commercial exploitation of others rights is a serious offence. The recent order by the Mumbai High Court will definitely mark the beginning of a new trend and will give hope to several other innocent creators/authors whose work is plagiarized. It is time the Indian entertainment industry gives credit to originality or at least understands that it is important to “copy” legally with the necessary consent of the author if they wish to use a particular story, tune, or song or be prepared to face the music!

1 The copy of the order is not yet available in the public domain.

2 US$ 500,000.

3 Supra footnote 1.

4 Dr. B.L Wadehra, Law relating to Patents, Trade marks, Copyright, Designs and Geographical Indications, Third edition, Page 385, Chapter 37.

5 AIR 1978 SC 1613.

6 AIR 1991Karnataka HC406.

7 According to the joint report of Federation of Indian Chambers of Commerce and Price Waterhouse Coopers released in March 2008.

8 Barbara Taylor Bradford v Sahara Media Entertainment Ltd [2003]47SCL445(Cal).

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