The Economic Times reports that director Sanjay Leela Bhansali is contemplating legal action against the Punjab Police for producing a pirated CD as evidence in a proceeding to quash an FIR registered against him. The article reports that at the time of the production of the CD in court, the film producers had given no rights for the release of any CD or DVD. The Punjab Police claim that they had obtained the CD from the person who had filed the complaint against the director.
Sanjay Leela Bhansali’s claim against the police might hold no water as they weren’t involved in the actual process of duplication, and he would probably have been better off claiming against the complainant (in the original FIR proceeding), unless he is to argue that they were guilty of infringement by means communicating the film to the public. This would also be quite a difficult argument to make as he would have to demonstrate that the act of showing a film in a court room in the midst of a judicial proceeding would amount to a communication to the public. If the drafters of the Copyright Act had intended that any work (that was not in itself infringing, more on this below) that was produced in a judicial proceeding would be covered by the exception under S.52(d) and if they had intended that the communication to a judge in the course of such proceeding was a communication to the public, then the exception would read “the reproduction or communication….” as opposed to its present form which merely covers reproduction. This, to me demonstrates that the drafters had not considered the communication during the course of a judicial proceeding to be a communication to the public. It is my opinion however, that communication would not entirely be impossible to demonstrate. The very nature of judicial proceeding (unless it is held in camera or the court due to extraneous reasons rules otherwise) is that it is meant to be a public proceeding (often by right), and at the time when the CD was played there were surely other people in the court room other than the judge.
If however, SLB argues with respect to the actual infringing copy and the act of pirating it, the police will also raise a defence of fair dealing under S. 52(d). This claim might not be so simple to adjudicate at all. While S. 52 (d) of the Copyright Act states that “the reproduction of any work for the purpose of the judicial proceeding ….” is exempted as a fair dealing in the work, it is important to note when the actual reproduction took place. The statement by the police that they had obtained the CD from the complainant establishes that the reproduction had taken place earlier, unless the police had made another copy exclusively for the purposes of production in court. Therefore this was not a reproduction for the purpose of a judicial proceeding as under S.52 and cannot be exempted as a fair dealing in the work.
I realise that this is a fairly restrictive interpretation of the phrase “for the purpose of” but I believe that such is justified in this case because the originally infringing (pirated) copy of the movie was not produced for the purposes of the production in judicial proceeding but would have been sold on the streets had it not been submitted to the police. A wider reading of S.52 (d) would now couch that pirated copy in an exemption that would condone the original act of piracy. Surely the courts do not intend to read that into the Copyright Act. Probably the only exceptions to this interpretation would be instances where the infringing copy is evidence of the infringement itself or if there is no other form of evidence available.
Another aspect that needs to be considered is that pirated DVDs and CDs that are made soon after the release of a movie are often “cam copies”. A cam copy is a video recording of a movie that is made while the movie is playing in a theatre. This in itself is a violation of the exclusive right of the movie producers under S.14 and since the purpose of such a copy is to make the movie available for the public as it is, it would clearly satisfy the Star India v. Leo Burnett test. Therefore, the copy that the complainant had obtained and therefore by necessary implication that the police had obtained, being a cam copy would amount to infringement.