Copyright

Laawaris and Poetic Justice


Sumathi blogged extensively and eruditely on the Laawaris controversy. The appellate judgment (albeit an interim one) by Justice Shah and Justice Sengupta of the Kolkata High Court is out now and Shayonee will bring you a detailed post on this soon.
In the meantime, here is an interesting issue. Kalyanji Anandji’s lawyers claim as below:

“…. Prakash Mehra had copyright only in …. the sound recording of the songs in the said film, but Prakash Mehra had no right in the musical work in the said songs of LAWAARIS …. it was Kalyanji Anandji who had composed the music of the songs in the film LAWAARIS and that Kalyanji Anandji were not employees of Prakash Mehra. Kalyanji Anandji had the rights in the musical work of the songs in the film LAWAARIS as recognized by Section 57 of the Copyright Act, 1957. …. there has never been any assignment of Kalyanji Anandji’s rights in the musical works of the songs in LAWAARIS and, therefore, Kalyanji Anandji are entitled to get an interim injunction against the exhibition of the film HOUSEFULL with the song in question”.

It is easy to see that the Kalyanji Anandji duo are indeed the”authors” of the musical compositions. But does this necessarily make them the copyright owners in respect of such compositions? (Note that there is a distinction between copyright ownership and copyright authorship, as Nikhil Krishnamurthy aptly points out in his very thoughtful post here).

Not so, said the Supreme Court (Justice Jaswant Singh and Justice Krishna Iyer) in a landmark 1977 judgment (IPRS vs Eastern India Motion Pictures). The Supremes, in a conceptually flawed, albeit flowery judgment, held that under section 17(b), the ownership of all underlying words that were incorporated into a movie vest with the film producer (the commissioner of the work), unless a contract provided otherwise.

In other words, what might have been a logically and legally obvious proposition to many of us (that copyright continues vesting in favour of authors of underlying works, unless a contract provides otherwise) was flipped around by the Learned judges.

Be that as it may, the opponents in the Lawaris case claim that Kalyanji Anandji were employees of the producer, Prakash Mehra (under a contract of service) and therefore any musical work created by them belonged to Prakash Mehra. If this contractual relationship is proved true (and I doubt it will), the argument that Mehra owns the musical compositions as well will indeed be a valid one. For our copyright act provides in section 17(1)(c), that any work created under a contract of service will belong to the employer.

The appellate court in Laawaris did not make any ruling on this count at this stage, preferring to leave it to more detailed hearings to come up in July.

All of this throws up a larger issue:

A number of early commissions, where music composers were asked to compose music for films were not done through proper written contracts or through agreements that would have helped establish a “contract of service”. Would this mean that music composers could have stopped the screening of movies (despite being commissioned to create the music for the movie), since the Indian copyright act does not provide for implied licenses in favour of such screening?

And while you ponder this issue, let me leave you with some musings from the ever verse-atile Justice Krishna Iyer, who despite a conceptually flawed judgment, manages to advocate for a separate copyright in favour of Bollywood singers in rather flowery language. A judge who epitomises poetic justice, one might say!

“A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting.

….In ‘a cosmic perspective, a thing of beauty has no boundary and is humanity’s property, but in the materialist plane on which artists thrive, private and exclusive estate in art subsists. Man, the noblest work of the Infinite Artist, strangely enough, battles for the finite products of his art and the secular law, operating on the temporal level, guarding material works possessing spiritual values. The enigmatic smile of Mona Lisa is the timeless heritage of mankind but till liberated by the prescribed passage of time, the private copyright of the human maker says, ‘hands off’.

The creative intelligence of man is displayed in multiform ways of aesthetic expression, but it often happens that economic systems so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masters, whose works are invaluable, are victims of piffling payments.

….copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to print, writing or graphic form. 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.

Printed music is not the glamour or glory of it, by and large, although the content of the poem or the lyric or the song does have appeal. Strangely enough, ‘author’, as defined in s.2(d), in relation to a musical work, is only the composer and s. 16 confines ‘copyright’ to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitlement of the musician or group of musical artists to copyright is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law.”

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Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

5 comments.

  1. AvatarSumathi Chandrashekaran

    Shamnad – Justice Krishna Iyer’s comments will resonate with anyone who understands the core of Indian music, which is much more about manodharma/kalpana sangeetam (creative music), than kalpita sangeetam (created music).

    Even music from films is rarely “fixed” in notation, simply because the performer is encouraged to “play” with the ‘eggshell’ of a composition. A true performer, and the better artistes in the various Indian movie industries are entirely that, will always modify the intonation, the modulation, and the swara pattern, all of are what eventually “make” the song. And these are nuances that cannot be written, or “fixed” in notation.

    The Indian classical musical traditions, both carnatic and hindustani, have struggled for centuries to come up with systems that accurately represent ornamental techniques such as “gamakkas” or “murkis” in performance. Western staff notation, although accepted elsewhere, comes with some fundamental technical differences. But even the standard “Bhatkande notation”, increasingly commonly used across genres, is unable to truly capture the fluidity of melody that is sacrosanct to the music we listen to. That fluidity is the prerogative, and the imagination, of the performer – no one else.

    There’s a point to all of this — performers’ rights are so completely needed, for precisely this reason, which blanket borrowings from other legislations can never understand.

    (Sorry for the rant. I’m rarely this demonstrative on the blog. But the post touched a raw nerve).

    Reply
  2. AvatarShamnad Basheer

    Tks for the comment Sumathi,

    Its not a rant at all, but a very real issue. Like you, I think Justice Iyer was correct in identifying this problem. However, I’m not entirely sure if copyrights are the optimal way to incentivise such performers. All of us agree on the need to promote such creativity. But i’m a little wary of assuming that a copyright regime is necessarily the best way to incentivise such contributions.

    Reply
  3. AvatarSumathi Chandrashekaran

    Agreed completely. Copyright may not create the right incentives. But I was also thinking of issues like moral rights, entirely irrationally, perhaps – e.g., whether or not the Housefull version of the Lawaaris song impinged in any way on Kishore Kumar’s “moral” ownership (by way of performance) of the original piece?

    Reply
  4. AvatarShamnad Basheer

    Mr Jagdish Sagar, a copyright expert notes as under:

    “Dear Shamnad,
    I don’t know how to reply directly on spicy ip, since mails to the spicy ip address (option mentioned below your article) never succeed–I get a reply about not being authorised. But here are a couple of comments on your interesting blog:

    1. I remain faithful to the belief that all is not lost for composers merely because of the SC judgment you refer to. The judgment does distinguish between the film and the underlying works with sufficient clarity, especially in Justice Krishna Iyer’s concurring “footnote”. It is true that Justice Jaswant Singh’s judgment seems to misread what section 17(b) is all about, but it should still be possible to distinguish most cases from that judgment on the facts, and show that the fact situation is different from the one assumed in that judgment. In fact, it is hard to think of a case where the facts would match the assumptions of the judgment. I can elaborate this if anyone thinks it necessary.
    2. Justice Krishna Iyer though, of course, wrong in apparently confusing performers with composers, did very perceptively see the need for performers’ rights, which were eventually granted by the amendments of 1994.

    Regards,
    Jagdish Sagar”

    Reply
  5. AvatarShamnad Basheer

    My response to Mr Sagar:

    “Dear Sir,

    Thanks so much again for your insightful comments. My deepest apologies for not being able to respond sooner. I will post to the comments section now.

    I think you’re right in your analysis that the judgment can be distinguished. Apparently, Jaswant Singhs daughter was married to a big time Bollywood producer—which accounted for the ruling!

    However, with the present set of amendments, this should be moot (assuming it goes through of course). But they need to make it more clearer in the present set of amendments and remove films from the scope of the “work for hire” concept under section 17—since authorship over the film has already been vested with the producer under an earlier section.

    Warm wishes,

    Shamnad

    Reply

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