Varaha Roopam and Navarasam. Case of copyright infringement ?

Harikrishna Holla & S. Basavaraj
Senior Advocates, Bangalore. 

1. The legislation on copyright in India is the Copyright Act, 1957. Few provisions of the Act are necessary to be extracted to understand the issue in question.

2. Section 2 (a) (iv) defines copyright in relation to a musical work to mean any arrangement or transcription of the work. Section 2 (d) defines ‘author’ in relation to a musical work as the composer. Section 2(p) defines ‘musical work’ to mean a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. Section 2 (m) defines ‘infringing copy’ in relation to music to mean a reproduction thereof otherwise.

3. Section 51 says that Copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.

4. Copyrights can be extended to two major aspects of music:

a) the musical composition, which is usually the composition and lyris 

(b) the physical embodiment of a particular performance of the musical composition, usually in the form of a master recording.

5. Reproduction of any musical work without prior permission of the original copyright-holder infringes the right of the holder. Infringement can be proved by showing the “ownership of the copyright” and “unauthorised copying of the copyrighted work”. In this regard, the following must be established:

(a) The defendant has actually copied the plaintiff's work; and

(b) The copying is illegal because a substantial similarity exists between the defendant's work and the protectable elements of plaintiff.

6. It is is essential that unless sound recording of earlier work has been done by using the same signal, the same does not amount to infringement of sound recording.

7. A case of infringement of copyright was delivered by the  Apex Court way back in the year 1978 in  R.G Anand vs M/S. Delux Films & Ors on 18 August, 1978, In the said case while dismissing the appeal of the appellant, the court  based on leading judgement of USA and UK observed as hereunder:  

"a. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by tile author of the copy-righted work. 

b. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

c. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the 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. 

d. 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. 

e. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two words are clearly incidental no infringement of the copyright comes into existence. 

f. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by decided cases 

g. Where however the question is of the violation the copyright of a stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the Idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved." 

8. In Performing Rights Society Ltd. v. Eastern Indian Motion Pictures Association AIR 1977 SC 1443, Justice Krishna Iyer observed in his inimitable style, “... The Indian music lovers throng to listen and be enthralled or enchanted by the nada brahma, the sweet concord of sounds, the rags, the bhava, the lava and the sublime or exciting singing.” 

9. The Madras High Court in Agi Music Sdn Bhd vs Ilaiyaraja and another observed that “A sound recording is a conglomerate of various invaluable contributions. If one were to trace the evolution of what eventually comes to be known as a ‘sound recording’, it all commences with the melody that flows when the muse inspires, the reduction of the same to notation, fleshing out the melody with lyrics, leading to songs, then instrumentation and orchestral arrangements, in all, one complete ‘felicitous blend’. Sometimes, melody is set to lyrics and other times, lyrics are set to fit within the contours of melody. A ‘sound recording’ incorporates both melodic as well as lyrical contents. The playback artists and accompanists then deliver the song which would be recorded in a studio and embodied as sound in a master medium on a master tape or digital media.”

10. The producers of Kanthara have been accused of plagiarism in copying the song of Navarasam. Plagiarism has been defined in various legal dictionaries as the practice of taking someone else's work or ideas and passing them off as one's own. On listening to both songs, it is difficult to come to a conclusion that the Varaha Roopam is copy of Navarsam. On listening to both songs there may be similarities in music, but the same does not amount to infringement of copyright by applying the principles laid down by the Supreme Court of India.

 

11. The Apex court ruled that mere copying of an idea does not amount to infringement of Copyright. In Gramophone Co. Of India Ltd vs Mars Recording Pvt.Ltd. & Anr  the Supreme Court observed as hereunder:

"Similarly, in the case of a record, it is only such record which embodies the same recording. Thus the use of the words "records embodying the record" or the "record embodying the same record" clearly means that it is only when the same signal has been kept, would there be a violation. If another signal is created, such as in the case of version recording, it is not an infringing copy within the meaning of Section 2(m)."

12. In Super Cassettes Industries Ltd. v Hamar Television Network Pvt. Ltd. And Anr Anr [2010] ILR 6Delhi230, the plaintiff, i.e., the Music Company sought an injunction against infringement of its copyright in musical works by the defendants on ground that the defendant Television Networks was broadcasting its copyrighted works without due permission .The issue was whether the defendants were entitled to of “fair dealing” in the matter. It was held that an infringement of copyrighted work would occur only when there is a substantial re-production of the original work. In ascertaining as to whether a substantial part of the work has been reproduced it cannot be dependent solely on the “bulk” or “length of the extract”. Not only the quantity but also the value is required to be looked at. If substantial and vital part of the works are reproduced the intention to appropriate on the part of the infringer the labour of others for his own profit having been made out, the court need not look to proof of any independent oblique motive. In the instant case, the court came to the conclusion that the extracts taken were substantial.

Conclusion. While analysing the catena of decisions of various courts it is evident that unless substantial part of sound recording by the same signal is reproduced the same does not amount to infringement of Copyright in sound recording. In the present controversy, it is alleged that a part of instrumental music has been copied. However, by listening to both songs it cannot be said that Varaha Roopam of Kanthara is a copy of Navarasam.

Daksha Legal.