Copyright

Short-sighted Doordarshan Drama


maulanaRecently, the Delhi High Court issued an interim injunction against Doordarshan in a copyright matter between acclaimed playwright, Dr. Sayeed Alam, well-known Indian actor, Mr. Thomas Alter and Doordarshan. Dr. Alam is the director and script writer for the play Maualana Azad, starring Mr. Alter,which is vastly critically acclaimed. In 2006, the Hindustan Times reported that “Dr. Sayeed Alam’s ‘Maulana Azad’, staged at Bharat Bhavan on Thursday…is a revelation of sorts in the way that it brings various untold points of the freedom movement to the forefront in a very refreshing manner that were otherwise hidden.”

In July 2009, Doordarshan issued a notification regarding general commissioning of programmes for DD Urdu which contained several stringent eligibility criteria. Satya Prakash (defendant no.2), a television producer approached Dr. Alam with the request to write the script and screenplay for a television serial based on Maulana Azad in order to meet the eligibility criteria under the notification. Therefore, an agreement was entered into between Dr. Alam and Television News Features (a firm controlled by Mr. Prakash) for a documentary series on DD Urdu titled ‘Ghubar-E-Khatir’ for 52 episodes of 29 minutes each. The agreement included research, scripting, pre-production, shooting inclusive of taking interviews and anchor shooting, post-production i.e. direction and writing a detailed script, both visual i.e. screenplay and audio. Dr. Alam was to be paid a fee per episode.

On Dr. Alam’s recommendation, Mr. Prakash approached Mr. Alter for the title role of Maulana as well as the anchor/ narrator of the series. An agreement to the same effect was entered into between TVNF and Mr. Alter.Dr. Alam authored a script for the episodes, which was presented to Doordarshan as part of the proposal.

Dr. Alam and Mr. Prakash then appeared before the Evaluation Committee of Doordarshan with their proposal for ‘Ghubar-e-Khatir’ and repeated references were made before the Commission that Dr. Alam would be involved in the project and Mr. Alter would play the title role as well as that of the narrator. ‘Ghubar-e-Khatir’ was shortlisted by Doordarshan and a detailed proposal was sought. The shooting of the episodes commenced and the introductory scenes which involved Mr. Alter as the anchor was shot in Mr. Alter’s house under the direction of Dr. Alam. The schedule for the next phase of shooting was tentatively fixed.

However, in the interim period, Dr. Alam and Mr. Alter received no communication from Mr. Prakash/ TVNF. Their repeated attempts to contact him were unsuccessful and they did not receive any payment.

It later came to the knowledge of the plaintiffs that they had been excluded from the project and that Mr. Prakash had finalised certain conditions with a different actor (described as an “Indian looking Bombay actor”)and writer, despite using the Plaintiffs’ names to obtain approval for the project. The plaintiffs brought this to the notice of Doordarshan and Doordarshan then sent a request for clarification to TVNF.

TVNF replied stating four factors, firstly, that Mr. Alter had been hired for only the anchor portions and that it would be structurally incorrect for him to play the main portion as well; secondly, that Dr. Alam was engaged as the director for only the anchor portions of the series; thirdly, that Dr. Alam and Mr. Alter had informed the defendants via SMS that they were unavailable for the project and fourthly, that all the payments had been made to the plaintiffs. Mr. Prakash then continued shooting the serial with the new cast, in contravention of the agreements with the Plaintiffs as well as the Guidelines of Doordarshan.

However, the Advisor, DD Urdu and the Deputy Director General decided to accept the justifications provided by the other defendants, ignoring the breach of contracts and infringement of copyright committed by them. There was clear evidence that Doordarshan was aware of the breach of contract and infringement of copyright. First, Doordarshan issued a letter to the plaintiffs and the defendants acknowledging the breach of contract and violation of the Guidelines and asking TVNF to submit a “formal request for change of artists and script writer for DG’s consideration and approval.” Second, officers of Doordarshan such as the ADG, DD Urdu and the Legal Expert expressed their opinion that there was a clear violation of the contract and the Guidelines by TVNF and that any condonation of the same may be indefensible. Therefore, they recommended that permission for release of Ghubar-e-Khatir ought not to be granted and that no payment should be released to the Plaintiffs until the dispute with the plaintiffs is settled. Thirdly, Doordarshanhad required the first defendant to submit an affidavit and indemnity bond indemnifying it from any legal action by the plaintiffs. This indicates that it was clearly aware of possible legal issues and had sought to protect itself, instead of performing its duty as a public authority to ensure that there is no prejudice to the rights of third parties.

In early 2015, it came to the knowledge of Dr. Alam that ‘Ghubar-e-Khatir’ was being telecast on DD Urdu, using Dr Alam’s script and Tom Alter’s voice as the narrator. The Plaintiffs issued a legal notice to all the defendants requiring Mr. Prakash to issue a clarification in the media that the serial was not authorized by them and for DD Urdu to stop telecasting the same. However, there was no reply to the legal notice.

The plaintiffs then approached the Delhi High Court praying for an injunction against the defendants. Counsel for the plaintiff, Ms. Swathi Sukumar and Mr.Nizam Pasha, assisted by Ms. Anu Paarcha, prayed for an injunction on the following grounds: First, the action of the defendants constituted a clear breach of contract, secondly, the action of the defendants breached the copyright of Dr. Alam in the storyline, script, screenplay and characterisation. (As the author of the same, he is the first owner of the copyright under S. 17, Copyright Act); thirdly, the action of the defendants breached the copyright of Mr. Alter for his performance as anchor/ narrator under S. 38A, Copyright Act and fourthly, the action of the defendants have violated the moral rights of the plaintiffs. They have also attempted to pass off the infringing works as that of the plaintiffs. Ms. Sukumar also submitted that Doordarshan had also wilfully infringed the copyright of the plaintiffs by choosing to ignore the illegality and infringement of third party rights by the other defendants. Moreover, Prasar Bharati (Doordarshan) is considered ‘State’ under Art. 12 of the Constitution. Therefore, it has a responsibility to act in a fair, just and reasonable manner, guided by public interest and under the mandate of Article 14. Therefore, the actions of Doordarshan which sought to wrongfully gain from the defendants’ misappropriation is unacceptable.

Counsel for the defendants, contended that Dr. Alam’s screenplay was a ‘work for hire’ and that he could not raise an objection to the change of case as an equally competent actor had been hired to play Maulana. However, the plaintiffs countered this argument noting that the agreement between Dr. Alam and TVNF indicated that coyright in the script would remain with Dr. Alam, and TVNF would need his license to be able to use the work. The Court considered the argument and ruled in favour of the plaintiffs. The Court also took into account two important factors, first, that Mr. Prakash would not have met the eligibility criteria in the notification and the commissioning guidelines if he had not involved Dr. Alam. Secondly, the role played by Doordarshan in the proceedings and the file noting of the Director General of Doordarshan (written in May, 2014) which cautioned DD from airing the programme and stated that the issue of permission and payment not be taken up by DD before the producer amicably settles this issue with the plaintiffs. Taking into account these factors, the Court issued an interim injunction restraining the defendants from using the plaintiff’s work.

This case is of particular relevance as it goes beyond infringement and contractual breach by private individuals. It involves a Government body wilfully cooperating in the copyright and moral rights infringement perpetrated by the producers against authors and artists who are already occupy a weaker bargaining position. Moreover, it is shocking that such a body sought to protect itself from liability by requiring an indemnity bond rather than act in public interest. We hope that this decision will act as a deterrent for public and private bodies from entering into such arrangements.

The orders in this decision are still awaited and we shall put them up as soon as they are obtained.

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L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

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