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As TOI reports, Amit Mehra’s ‘Zanjeer 2.0’ starring Ram Charan and Priyanka Chopra is now before the Bombay HC. As blogged by us here, this remake is seeing a copyright controversy over the use of the original script of Zanjeer written by Salim Khan and Javed Akthar. The controversy started when Mehra did not seek permission from Khan and Akthar for use of the original script which provoked the duo to demand for payment of royalty. This demand was not accepted by Mehra, who argued that since the authors have been remunerated once for the script, they are not liable to be paid again. Against this, the authors have sought compensation to the tune of Rs. 6 crores from Mehra and Reliance.
Khan reported that the matter was before the Federation of Western India Cine Employees (FWICE) and in case the matter did not get resolved, Khan said they would press for an injunction on the film.
Mehra on this part has taken the matter to court (Bom HC).
Given below are possible arguments that may be made by either side –
Producer (Amit Mehra) –
1) Section 17 proviso (c)– the new producer can argue that since Khan and Akhtar had originally made the script under a contact of service, by the operation of this proviso, the original producer becomes the first owner of the copyright in their work, unless they can show a contract to the contrary. This argument is strengthened by the IPRS case (1977) where the court held that when a producer of a cinematograph film commissions a composer or a lyricist for reward or valuable consideration, he becomes the first owner of the all the rights and no copyright subsists with the authors, unless there is a contract to the contrary. Even though this judgment was with regard to musical and literary works, a script is arguably a literary work. Even if it is held that a script is a dramatic work, Section 17 proviso (c) would apply because this proviso uses the words ‘any work’ thereby including dramatic works.
Given that the original producer is the first owner of rights with regard to the script, under Section 18, he has the right to assign remake rights and receive royalty for the same, and not the authors.
2) The new producer will also have to argue that the new provisions introduced by the Copyright Amendment Act, 2012 are prospective and don’t apply to contracts that were entered into before the Amending Act was notified.
He will have to establish that royalty-sharing provisions (Section 18 and 19) do not encompass current exploitation of past works and encompasses only new works. It can be argued that thousands of such no-royalty sharing contracts have been entered into in the past and applying the Act retrospectively would lead to a flood of litigation. Moreover, given that these were ‘contracts’, there was ‘consensus’ and there is no sanction against producers who violate this clause, in all probability retrospective application would be rendered futile.
If this argument fails, he can adopt a textual interpretation of Section 18 and 19. Proviso three of Section 18 mandates that no author of a musical or literary work included in a cinematograph film, shall waive his rights to receive royalties from the assignee of the copyright. Though this proviso is limited to ‘literary or musical work’, clause (9) of Section 19 uses ‘any work’. In this regard, it could be argued that since Section 18 is the operative or charging section and Section 19 is only the mechanism/mode of charging, Section 18 has to be read strictly and royalty sharing will not apply to a script as it is a dramatic work and not a literary/musical work (they will have to establish it’s a dramatic and not literary work).
Authors–
1) The authors should try and establish retrospective application of the Amending Act 2012. They can argue that the intention of the Parliament was to remedy the injustice done to authors, regardless of whether there would be a flood of litigation. Proviso to Section 18 and clause (9) of Section 19 clearly provides them with a right which cannot be taken away merely on grounds of a prospect of excess litigation. Moreover, since these sections only use the phrase ‘No assignment of the copyright in any work’ and not ‘No assignment of the copyright in any work made after the notification of this amendment’ shows that the legislature did not intend to limit the application of this provision only to new works. This intention of the Parliament is further strengthened by the fact that the contracts signed by authors in the past are arguably ‘unconscionable’ (agreements that are so one-sided and unfair) and hence void. Importantly, given that this section is a beneficial provision, a liberal interpretation that ensures maximum benefits to the intended beneficiaries (authors) should be accorded and so Section 18 should be read in light of clause (9) of Section 19 which uses ‘any work’. In the present case, the new producer is modifying the original script and is also translating the script to a different language and so the authors of the script should be allowed to claim royalties on for the re-make.
2) Moral Rights – these are special rights of authors under Section 57. This is again a beneficial provision and courts have held that this section must be given the widest interpretation (Mannu Bhandari v Kala Vikas Pictures Pvt. Ltd.). Under this section, regardless of assignment of copyright, Khan and Akhtar can claim credit for the original script and can also seek an injunction or claim compensation if they can establish that the remade script is distorted, modified or mutilated in a way which prejudices their repute and honour.
This case will, therefore, turn on the point of retrospective/prospective application of the Amending Act 2012.
The discussion seems to completely ignore Section 6 of the General Clauses Act, which is the relevant provision of law on retroactivity. Jagdish Sagar
Dear Mr. Jagdish,
Thank for pointing this out. But sir, Sec 6 literally read, seems to apply only to a repeal of an enactment and not to an amendment of a provision of an existing act. This is, however, only a cursory observation and i’ll probably have to read up more to understand this Section better.
Nonetheless, thank you for bringing this to our notice.
There is no amendment effected to Section 79 of the Act. In this regard, a reference may be made to the judgment of the Supreme Court in B. Prabhakar Rao & Ors. V/s. State of Andhra Pradesh & Ors., AIR 1986 SC 210. In this case, the Supreme Court held that while it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implications from the language implied, or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse, or where the statute engrafts itself upon existing situations, etc. But it would be incorrect to call a statute ‘retrospective, “because of the part of the requisites for its action is drawn from a time antecedent to its passing”. It will have to be considered whether this situation exists in the case of the present amendment. In my view the Amendment would have retro-active application. However we would have to wait for a court decision to interpret the application of the amendment.
Dear Anushree,
Thank you so much for this!