On Girish Karnad and the Criminalisation of Copyright Infringement

girish karnadOn 23rd September, 2014, renowned playwright and Jnanpith award winner Girish Karnad was granted anticipatory bail by a Chief Metropolitan Magistrate in Bangalore in relation to a copyright infringement dispute.

The nearly 10 year old dispute is between Karnad and writer Gopal Vajpayee. Vajpayee had written around 10 songs for Karnad’s play Nagamandala, in the late 1980s. In 2005, Karnad requested Vajpayee’s permission to use one of the more popular songs in the print edition of the play, for a sum of Rs.1,500. However, Vajpayee was not credited for the song in the reprint. This led Vajpayee to return the sum and revoke his permission for using the song in subsequent reprints. However, the song appeared in subsequent editions in 2009 and 2011. Vajpayee then initiated civil proceedings seeking damages of Rs. 10 Lakh as well as criminal proceedings against Mr. Karnad.

While the Copyright Act does provide for criminal sanctions for infringement, it is perhaps time to ask ourselves whether it should exist. In this particular case, while it doesn’t seem like there had been a formal licensing agreement, it appears as if it is akin to a simple breach of contract- what makes such a breach criminal in nature merely because copyright is involved?

Traditionally, criminal sanctions for copyright infringement have been justified by equating copyright with theft of property [source]. However, such a reduction does disservice to why copyright law exists in the first place. While copyright is a “bundle of rights” akin to property rights, copyright infringement cannot be equated to theft for a number of reasons- the most obvious being that copyright infringement does not in most cases remove the “property” from the possession of the owner. While it can be argued that infringement reduces the economic value of the copyrighted work to such an extent that it holds no economic value to the author, this is true only in very extreme cases, and the burden must be on the copyright owner to prove such a loss (besides, monetary loss can usually be compensated in civil proceedings). Further, copyright infringement never involves violence (which was one of the traditional justifications for imposing criminal sanctions on theft of property).

Another oft-cited justification for criminalization is the deterrent effect of such a sanction. But we need to remember that copyright regulates the realm of ideas and their expression, where it is often unclear when copyright is being infringed (unlike in cases of traditional property offences).  Criminal sanctions inevitably lead to a chilling effect on those looking to draw upon existing works for innovation.  piratebay

A couple of days ago, it was rumoured that The Pirate Bay founder Peter Sunde may have to attend his own father’s funeral in handcuffs. However, for reasons unclear (but perhaps because of the outpouring of support he received from the online community), the Swedish authorities allowed him to attend the funeral without handcuffs.

I think it is a sad state of affairs that alleged infringers of copyright are made to face the stigma of criminal prosecution. As aptly put by Professor Geraldine Szott Moohr in this interesting paper, “criminal laws that treat infringement as theft convey the message that information or knowledge may not be used without permission. This repressive lesson may not be one that we want to impart.”

Spadika Jayaraj

Spadika is a student of the National Law School of India University, Bangalore. Apart from Intellectual Property Law, she is also interested in Law and Technology issues.

One comment.

  1. Jagdish Sagar

    This is not an appropriate case for criminal prosecution; no seriously disputable question as to whether infringement has been committed can be, even from the point of view of the plaintiff in view of the higher standard of proof required. However in cases of piracy by gangs, as we see in the case of pirated DVDs and CDs and also published books, police investigation and raids are the only effective solution. There is a problem here, since in the former kind of case criminal action may be launched merely to harass, but there is also the problem of throwing out the baby with the bathwater. At the minimum, the police need to be better trained about when to make arrests (on which they do enjoy discretion) and the Courts should grant bail on modest personal bonds in the former kind of case. But it is hard to envisage a legislative solution.


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