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Importance Of Procedural Compliance: A Copyright Case That Turned Into A Jurisdictional Issue

The exponential growth in the field of Intellectual property laws has demanded the need to redefine 'Property' and 'Jurisdiction'. The definition of 'property' is substantial whereas, 'Jurisdiction' is of the first magnitude to decide the maintainability of a particular issue. Similarly, this article aims at analysing the issue with respect to Copyright infringement in a recent case filed by 'Thaikkudam bridge' against 'Hombale films'. Further, the article highlights the Jurisdiction of the plaint filed by Thaikkudam bridge in the district court of Kerala.

Brief background of Thaikkudam Bridge and Kantara controversy

The controversy began when the Kerala-based music band accused the song "Varaha Roopam" from the movie Kantara, that the song is "Plagiarising" from the song "Navarasam" as there is no acknowledgement of their IP rights and that the makers of the song have propagated the song "Varaha Roopam" as the original piece of work made by the creators of the movie, through a post made on Instagram on 24th October 2022.

Following which, The Kerala band filed a case against the makers of the song "Varaha Roopam" contending that their moral rights are infringed by unauthorisedly using the song.

To understand the case scenario, the judicial decisions have been traced chronologically:

The Kozhikode District Court is satisfied that a prima facie case is established passed an injunction in two scenarios, which are as follows:
  1. On 29th October 2022, the court passed an order of temporary injunction to restrain the makers of "Kantara" from using the song "Varaha Roopam" in theatres and streaming platforms; and
  2. On 2nd November 2022, the court passed an order refraining from exhibiting releasing on OTT platforms, streaming, distributing or communicating to the public the film 'Kantara' with the synchronized song Varaha Roopam.

Further, on 23rd November 2022, the High Court of Kerala dismissed the petitions filed by the makers of the song 'Varaha Roopam' against the orders passed by the District Courts of Palakkad and Kozhikkode as other remedies are available against the interim orders. The High Court bench further observed that the makers of the song 'Varaha-Roopam' are completely bye-passing the procedure laid down under Order 39 of the Code of Civil Procedure.

However, on 03rd December 2022 Palakkad District Court returns the plaint filed by the makers of the song 'Navarasam' on the ground that the office of Mathrubhumi Printing and Publishing Company Ltd (Copyright holder of the song 'Navarasam') is in Kozhikode and that suit has to be filed before Kozhikode District Court.

It is relevant to note here that the contention put forth by the defendant, that plaint filed in the district courts is not maintainable is accepted by the district court. The district court directed the plaintiff to file a suit in the commercial court within 15 days. The district court returned the plaint without deciding the subject matter of the case. Therefore, the entire dispute inclined towards the Jurisdiction of the place of filing of the suit.

Jurisdiction for filing a suit
The law relating to Jurisdiction to file a suit for copyright infringement is no longer res integra i.e., the courts have decided the position relating to the subject matter of jurisdiction. Generally, the jurisdiction for filing a suit is governed by Section 20 of the Code of Civil Procedure (CPC). This section provides that a suit has to be instituted, either at the place where the defendant resides or at the place cause of action arises.

However, with the introduction of section 62 to the Indian Copyright Act, 1957 (the Act), this provision provided an overriding effect to Section 20 of CPC. This provision paved the way to institute a suit at the place where Plaintiff voluntarily resides or carries on business.

The interplay between Section 62 of the Copyright Act and Section 20 of CPC

As there were two provisions governing the jurisdiction there was a need for interpretation of the two above-mentioned sections. The Supreme court in the case of Indian Performing Rights Society v Sanjay Dalia has interpreted the phrase under Section 62 of the Act i.e., 'notwithstanding anything contained in Code of Civil Procedure or any other law for the time being in force'. The court stated that the Plaintiff is not authorised to initiate a suit at a different place other than the place where he is ordinarily residing or having a principal office and incidentally where the cause of action wholly or in part has also arisen.

Therefore, it is a settled provision of law to file a copyright suit in the place of the residence or place of carrying of business of the plaintiff in addition to the places where suits could be filed under Section 20 of CPC.

The Changes brought about by the Tribunal Reforms Act, 2021 to the Copyrights Act, 1957.

Prior to the enactment of the Commercial Courts Act, the jurisdiction of IPR disputes was vested with the District Courts. After the enactment of the Commercial Courts Act, the subject matter of Intellectual Property disputes vests with the Commercial Courts, at District Court Level. However, the Enactment of Tribunal reforms Act, 2021 abolished the constitution of the Appellate Board and transferred its functions to High Court and the Commercial Court.

The Tribunal Reforms Act, 2021 replaces The Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. This ordinance was promulgated in April 2021. The Tribunal Reforms Act, 2021 amends the Copyrights Act, 1957 and several other acts such as Cinematograph Act, 1952, the Customs Act, 1962, and certain other acts with an objective to dissolve eight existing appellate bodies and transfer their functions to other existing judicial bodies.

Section 15 of CPC vis-à-vis pecuniary jurisdiction of IPR disputes

Section 15 of CPC provides for, the Court in which suits must be instituted. According to this provision, a suit has to be filed in the Court of the lowest grade competent to try it. However, in the Case of Dashrath B. Rathod v. Fox Star Studios India Pvt. Ltd., the Bombay High Court clearly stated that monetary value is inconsequential in the IPR dispute. Therefore, the relevant statutes for deciding a dispute involving IPR are The Commercial Courts Act, The Code of Civil Procedure and the act governing a particular subject matter here (in the given instance, the Copyright Act, 1957).

From the above-stated analysis, it can be inferred that any IPR dispute needs to be filed in Commercial Courts at the District level and the monetary value of the dispute is excluded from determining the jurisdiction of an IPR suit.

Having settled the jurisdiction to determine the maintainability of a dispute, the suit proceeds towards deciding the merits of the case. In the instant case of Thaikkudam bridge and Hombale films, the dispute did not reach the stage of deciding the dispute. The author takes a neutral stance in analysing the issue of Copyright infringement.

To understand whether the contention made by the music band Thaikkudam Bridge with respect to copyright infringement is right or wrong, the author of this article analyses in light of the Indian Copyright Act, 1957 and Judicial pronouncements.

When any 'layman' listens to the songs "Navarasam" and "Varaha Roopam" for the first time, the viewer has an unmistakable opinion that both the songs are "similar". Various platforms through Social Networking sites voice their opinion regarding the similarity of the song which can be considered a layman's observer's test. However, this test cannot be conclusive as various other relevant factors need to be taken into consideration which are as follows-

In the light of Indian precedents, the Supreme Court after relying on various authorities, elucidated the rules to check what amounts to infringement under section 51 of the Copyright Act, 1957 in the case of R.G Anand vs M/S Deluxe Films, which is regarded as the landmark judgment to determine infringement. The relevant part is as follows:

"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 limitation 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."

The court in this case highlighted the importance of fundamental and substantial modes of expression. Furthermore, copyright protection can be provided irrespective of a similar idea, but the expression of the idea is the deciding factor to grant copyright protection.

In the case of Eastern Book Company and Ors. v. D.B. Modak and Anr. The Supreme Court held that:
"The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity."

This case expressly states that regardless of the originality of the idea, Copyright protection can be granted if the author of the work has invested his own skill, labour and investment of capital.

The above-mentioned cases are widely used to determine whether there is a Copyright infringement. Accordingly, The Supreme Court upheld the above-mentioned cases, in relation to the case of Academy of General Edu., Manipal and Ors. V. B. Malini Mallya where it involved copyright protection with respect to the changes that were brought by Dr Shivarama Karanth in developing a new form of 'Yakshagana', a traditional dance form practised in Karnataka and Kerala by bringing changes in Raga, Tala, a Scenic arrangement, Costumes etc., This new form of 'Yakshagana' is termed as 'Yaksharanga', which was done through the literary works by Dr Karanth. The court in the instant matter held that 'Yaksharanga' is entitled to get copyright protection.

Therefore, it is established that original ideas per se do not qualify as a criterion for copyright protection. The important factor to consider here is the expression of ideas. The following are the foreign cases to determine the 'Originality' and decide the question of Copyright infringement.

In the case of Hyperion Records v. Sawkins wherein the court had to define "Original musical work". The case revolves around the works of Dr Sawkins who had researched the works of the composer Richard de Lalande thereby creating a new performing edition of Lalande's works. Whereas, Dr Sawkins had made numerous additions to the notation and recreated missing parts.

The court in this case held that "The work of Dr Sawkins has sufficient aural and musical significance to attract copyright protection" since there is person's effort skill and time would act as qualifying factors.

Further, in the case of Joy music Ltd v. Sunday pictorial Newspapers Ltd, A chorus was written by the Newspaper which was believed to be an adaptation of rock music. The court in this case held that the work made by the defendant is sufficiently independent and that such work is not a reproduction of the plaintiff's work but a new original word derived from the plaintiff's work. The work can stand alone as a new work.

Considering a recent case, Ed Sheeran's song 'Shape of You' was accused of plagiarism over the song 'Oh why' by the Artist Sami Chokri. The court after hearing the matter the trial judge said that song 'Shape of you' is "originated from sources other than 'Oh why'" further the court also highlighted that the relevant parts of each song were different.

From the above-mentioned case trend, it can be understood that copyright protection can be granted to 'derivative works, if a substantial amount of skill and effort is applied by the author of the work. In furtherance of the same "Varaha Roopam-Navarasam" controversy can be analysed in the light of the following issues:
  • Comparison of Lyrics
    'Navarasm' means Nine expressions, the song portrays the traditional dance form of Kerala i.e., Kathakali. Whereas, the song Varaha Roopam means the third incarnation of lord Vishnu. The song portrays divinity and personifies the existence of God in the local traditions of Karnataka.
  • Comparing the Technicalities of the song
    The 'Raga' that is used in both songs is the same but, it is relevant here to note that the 'Thala' used in both of the above-mentioned songs are different. The 'Thala' that is used in the song 'Varaha Roopam' is researched by the makers of the song to suit the storyline of the movie 'Kantara'.

The author is of the opinion that the work created by the makers of the song 'Varaha Roopam' has sufficient skill, effort and research that has been put into the song to be termed as 'Sufficiently independent'. Furthermore, the Copyright Act, 1957 protects the 'expression' of thought but not the thought itself. Creativity is an essential element to grant copyright protection and this persists in the song 'Varaha Roopam'.

The entertainment industry in India is securing significant growth, and with such an increase the question of Copyright infringement is bound to arise. On the other hand, legislations are dynamic. It is important to monitor and observe the amendments that are brought about to legislation.

Similarly, in the 'VarhaRoopam-Navarasam' issue which had to be decided on the grounds of Copyright, the matter was not admitted in the court, citing a lack of jurisdiction. After analysing the above-said issue, The author is of the opinion that the balance of convenience lies with the makers of the song 'Varaha Roopam' from the movie 'Kantara'. There are very less judicial pronouncements, yet there are landmark cases to determine the question of Copyright infringement.

  1. Academy of General Edu., Manipal and Ors. v. B. Malini Mallya, AIR 2009 SC 1982
  2. R G Anand v. Delux Films and Ors, AIR 1978 SC 1613
  3. Eastern Book Company and Ors. v. D.B. Modak and Anr, (2008) 1 SCC 1
  4. Hyperion Records v. Sawkins, [2005] EWCA Civ 565
  5. Joy music Ltd v. Sunday pictorial Newspapers Ltd, [1961] 1 WLR 967
  6. Indian Performing Rights Society v Sanjay Dalia, (2015) 10 SCC 161
  7. Dashrath B. Rathod v. Fox Star Studios India Pvt. Ltd, 2017 SCC OnLine Bom 345
  8. Commercial Courts Act, 2015
  9. Indian Copyright Act, 1957
  10. The Code of Civil Procedure, 1908
  11. The Tribunal Reforms Act, 2021

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