Urmi Juvekar Chiang v. Global Broadcast News Ltd. and Anr.

If the caption does not a ring a bell it is probably because most popular newspapers have not been covering this matter. There are of course a number of reports on the facts of the case on the internet (See for example, here, here and here) but I haven’t so far come across any analysis of the law relevant to the case. This is probably because the judgment itself is very hard to get a hold of. Thanks to my friend who is an advocate in the Mumbai HC, I was able to get an authenticated copy of the interim order no. S/1467/2007 dated – 07/06/2007 (which was the order refusing the appeal to vacate the stay granted earlier). I have also been speaking with counsel working on the matter. While I work to get my hands on the reasoned order, here’s an analysis of the issues that emerge from the facts.

To begin with, for those of us who haven’t heard about the case the brief facts are as follows:
In November 2005, Urmi Juvekar, a documentary film maker, came up with a concept which she called ‘Work in Progress”. The concept note, which was registered with the Film Writers Association, Mumbai, disclosed the idea of a reality show on TV which would follow citizens from around the country as they took the initiative to solve a civic problem of their choice in their locality. The show would follow the citizens and telecast the hurdles that the citizens face in solving the problem – the bureaucracy, the general attitude of the people and the final outcome. See more details of the concept here. and for a detailed sequence of events see here.

The concept note was sent to CNN-IBN, which initially took great interest in it and a number of meetings with directors, line managers and producers followed. Discussions continued until February 2007 and then stopped abruptly. On April 19, 2007, Ms. Juvekar-Chiang saw promotions of the program titled “Summer Showdown” on CNN-IBN which, in the words of Rajdeep Sardesai, CNN-IBN’s editor in chief, “promise[d] to be a captivating account of citizens from across the country on the civic conditions of their cities.” Mr. Sardesai further stated, “With inclusive journalism as our mantra, CNN-IBN hopes to not only give voice to the plight of citizens but also elicit among others a sense of civic responsibility.” The program was to be aired daily in the form of short three-minute stories on CNN-IBN’s news (click here for details). Ms. Juvekar filed a petition claiming injunction and damages on the grounds of breach of confidentiality and copyright infringement on May 21, 2007 before the Mumbai High Court.

From these facts, the issues that pop into mind immediately are:

(1) What kind of protection is a concept note entitled to? Is it just an idea written down?
(2) Does the concept note amount to a literary work under copyright laws?
(3) Would the TV program based on the concept note constitute an “adaptation” of the literary work?
(4) What other legal theories are applicable to the facts?

If one were to consider copyright laws in their very strict sense – namely, that ideas cannot be protected, the immediate conclusion would be that a concept, even for a TV show, being a mere idea is not protected under copyright law. Arguably, even if the idea were to be reduced to writing in the form of a concept note, the creation of a TV program based on the same idea (or concept) would not violate the literary work. It could be argued that the TV program would constitute an adaptation of the literary work and would therefore be an infringement of the copyrighted concept note. However, the term adaptation has been defined in a manner as to not include a cinematographic work at all.

Section 2(a)(ii) of the Copyright Act, 1957 defines “adaptation” in relation to literary works as “the conversion of the work into a dramatic work by way of performance in public or otherwise.” Section 2(h) defines “dramatic work” as not including cinematographic films. Further, section 2(m)(i) defines “infringing copy” in relation to literary work as “a reproduction thereof otherwise than in the form of a cinematographic film;” Interestingly however, the Explanation to section 51(b) appears to contradict section 2 (m) [or as one court has state, “carves out an exception to section 2(m)” see (1991) 107 Mad LW 220] in that it provides that for its purposes, the reproduction of a literary … work in the form of a cinematograph film shall be deemed to be an ‘infringing copy’. [Section 51 deals with when a copyright is infringed.]

Further, Section 14 of the Copyright Act, 1957 states:

14. “…, ‘copyright’ means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of any of the following acts in respect of a work or any substantial part thereof, namely, –

(a) in the case of a literary, dramatic or musical work, not being a computer programme, –
(i) …;
(ii) …;
(iii) …;
(iv) to make any cinematograph film or sound recording in respect of the work;
From the above, although there seems to be a contradiction between sections 2(a)(ii) read with 2(h) and 2(m) and section 14 read with the Explanation to section 51(b), it appears that the exclusive right to make a cinematograph film in respect of a literary work lies with the author of the literary work.

By the time I finished going through the relevant provisions of the Copyright Act, my head was spinning thinking how one can know for sure whether a concept note is a mere idea that does not merit protection or whether it is a literary work, a subsequent creation of a TV program based on which would contravene section 51 of the Copyright Act. While I was discussing the issue with Shamnad, he suggested I look at Swayamavar case decided by the Delhi High Court a few years ago.

The facts and the arguments of the parties in the Urmi Juvekar case are very similar to the arguments taken by the parties in Swayamvar case, officially Mr. Anil Gupta and Anr. Vs. Mr. Kunal Dasgupta and Ors. IA 8883/2001 in Suit No. 1970 of 2001 (Delhi High Court 03.06.2002) (Popularly referred to as the Swayamvar case, Swayamvar roughly translates as finding one’s own groom. Swayamvars were conducted in olden times by royal households where the King would invite eligible bachelor princes and the King’s daughter would choose one of the invited princes as her husband.).

In the Swayamvar case, the Plaintiff had given a concept note as well as attended a number of meetings with the defendant in which he gave a detailed description of his idea for a reality show in which an Indian woman would choose her own spouse from among a number of suitors. After these meetings, Sony TV came out with a show titled “Shubh Vivah” based on the same concept.

On these fact, the Delhi High Court held that “An idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Copyright Act.”

The court further observed that “In the modern day, when the small screen has taken over the earlier means of mass communication like radio, idea/concept/script of a broadcaster has wider potentiality of capitalising revenue and if that idea/concept or script is not protected then in a given case, a person who has conceived an idea to be translated into the reality TV show which could be key to its success with audience then channels with their enormous resources could always be in a better position to take the idea/theme/concept from any author and then develop at their own end and the original author of the concept will be left high and dry.”

The court further held that “One has to bear in mind that persons who create an idea/ concept or theme which is original, laws must ensure that such like people are rewarded for their labour….Otherwise authors of the ideas who are individuals, their ideas can be taken by the broadcasting companies or channels owning companies and the persons who has conceived the same, would be robbed of its labour.”

The above observations appears to come dangerously close to protecting an idea per se. It seems in fact that the court is carving out an exception to the rule that ideas per se are not protected by copyrights to accommodate the special circumstances of the “small screen”. Although the decision in the Swayamvar case is well reasoned and cites a number of decided UK cases, I found myself struggling to understand where, under well established principles of copyright law, one can place this reasoning. The struggle was partly the result of the holding of the Supreme Court in R.G. Anand v. M/s Delux Films & Others, where it was held that “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 the author of the copyrighted work.”

In relation to confidential communication, the court in the Swayamvar case held “When an idea or concept has been developed to a stage that it could be seen to be a concept which has some attractiveness so as to get an audience on a television programme and could be realised as an actuality then the concept is capable of being the subject of confidential communication.” The court observed that “In television industry, it matters as to who has gone first, once the reality show is televised on the television, the same comes within the purview of public domain and anybody else can take up the same concept and launch their own television programme.”
The Swayamvar court concluded that “Shubh Vivah based on concept of spouse selection in any form as a reality TV show cannot be permitted as that has been conceived by the plaintiff at the first instance.” The court explained further by stating that “To depict match making in the form of a reality TV show or spouse selection, is the theme of the concept. How it is done, who plays as anchor person, gifts are given or not, may be the various elements which may differ but if Shubh Vivah is based on match making process to be televised on the TV as a real life drama, defendants cannot reap the fruits of labour put in by the plaintiff in this regard.”
The Mumbai HC has held in the Urmi Juvekar case that: “The argument of the defendants that there can be no copyright in the theme of citizen activism towards civic problems, and that the said theme cannot be considered to be original or entitled to copyright protection in favour of the plaintiff exclusively, would have been valid only if this court were to find that treatment, format, structure, expression and presentation of the programme Summer Showdown were materially dissimilar and do not resemble the literary work of the plaintiff.” Quoted here.
The rationale of the judgments in both cases is clear. Speaking the language of equity and fairness, it cannot be denied that concept notes that are submitted by individuals need to be given protection in order to encourage ordinary people to communicate their ideas and see their fruition into TV programs. Else, it may lead to a result wherein no individual who has a concept for a TV program, movie or screen play would feel comfortable disclosing it to a prospective producer or TV channel. In the Swayamvar case, the court did an excellent job of explaining the rationale. I am now eager to read the reasoned order of the Mumbai High Court to see if it also discusses provisions of the law in greater detail. I have been told by counsel who are working on this matter that CNN will probably appeal the Mumbai High Court’s decision in the Supreme Court. We’ll keep you posted on the analysis. Please keep the comments coming in. 🙂