Late last week, we unleashed a new series titled “IP Juris-prurience” (or to put it more bluntly, “Sex and IP”!)
Our first post revolved the famous Viagra Patent Case, where I highlighted the differential rulings on validity the world over. While the UK rejected the patent on grounds of obviousness, Canada did so on the ground of insufficient disclosure, castigating Pfizer for playing “hide and seek” with the public. Meanwhile China (which also rejected the patent on credible grounds) faced the full fury of the US industry/government, for flouting their version of the ‘Rule of (F)law”. Through this example, I had hoped to make the larger point that the patent regime is indeterminate and inefficient and we’re better off moving towards a more direct investment protection regime.
And now I bring you our second post in this salacious series….centering around a rather controversial copyright case that surprisingly overlooked a critical aspect of infringement: namely the requirement of “copying”!
In order to appreciate this, let me take you back to the 70’s..to the scenic state of Kerala; a state famed as much for its films as its spectacular landscape (god’s own country and all that). As Adam Bingham notes in his book on world cinema: “…arguably, a more committed and socially conscious, verisimilar cinema cannot be found anywhere in India. It has borrowed from a strong theatrical and literary tradition and imbued its stories with complex social themes and subtexts.”
Avalude Ravukal: The Sexual Awakening of Kerala Cinema
1978 proved a watershed year for Malayalam cinema. For it was in this year that “Avalude Ravukal” (translated as “her nights”) splashed across the big screen: a movie that told the bold tale of a sex worker, the endless exploitation she suffered and amidst all of this, a love that transcends and redeems in the end.
Replete with tryingly titillating visuals, this movie went on to mesmerize many a hormone laden lad. However, as with most other pioneering pieces of art, it earned as many brickbats as it did bouquets. While some hailed it for its realistic handling of a taboo topic, others were more critical, hounding it for having heralded the “soft porn” phase in Kerala (mallu) cinema.
Avalude Ravukal was as much about a controversial theme as it was about a talented triumvirate of artists who came together to unleash a salacious surprise on an unsuspecting audience (indeed it hardly any takers for the first few days of its screening). A script writer (Alleppey Sheriff) who frequented toddy shops and picked up this story line from conversations with sex workers. A director, IV Sasi who catapulted to fame in the immediate aftermath of this film. And most of all, Seema, an unknown actress who shot to stardom with this daring debut and went on to marry the very director who’d cast her. There was no looking back for any of them.
Copyright Case: R Madhavan vs SK Nayar (AIR 1988 Ker 39)
With such a risqué and racy history, could IP have been far behind? After the movie struck gold at the box office, R Madhavan, a relatively unknown writer (and school teacher) claimed that the movie was based almost wholly on a story (“Alayazhi”) that he had written and sent for publication to a magazine (Malayalanadu). In his copyright infringement suit filed before a Kerala district court, he alleged that the magazine publishers/editors leaked this to the script writer and others who then went on to make the movie, Avalude Ravukal.
Unfortunately, the court did not bite and he lost. A finding that was later upheld by the high court as well. The courts’ decision is full of bawdy bits, including the use of some interesting phrases: “pretty sexy” and “exuberant sexiness”. Here are some nuggets, for those interested:
“On 23-3-1978, the plaintiff had occasion to see the Malayalam film, ‘Avalute Ravukal’…… On seeing the film he realised that the story of ‘Avalute Ravukal’ as exhibited in the film is an imitation of his novel ‘Alayazhi’ and contained several striking similarities of situations and incidents in the novel ‘Alayazhi’ which the plaintiff had entrusted with the second defendant. The plaintiff averred that his novel ‘Alayazhi’ is the story of a poor but pretty sexy girl who takes to a life of prostitution in defiance of the challenges of the world, her ecstasies and her fulfilment. He also alleged that the attributes of the girl Ammini, (heroine in ‘Alayazhi’) her captivating charm and her exuberant sexiness are brought out in all its details in the heroine Raji in the film, Ammini in his novel was poor and could not prosecute her studies due to adversities, the heroine Raji is of poor parentage and because of her financial disability she also could not continue her studies.”
The court went on to hold that there was no substantial similarly between the movie and the plaintiff’s story, ruling as below:
“Material incidents, situations and scenes portrayed in the film are substantially and materially different from the situations incidents and scenes portrayed in the novel Alayazhi of the plaintiff… In our opinion no prudent man who has seen the film and read the novel Alayazhi will come with an impression that the former is an imitation of the latter. In the circumstances we hold that there is no infringement of the copyright of the plaintiff in making film ‘Avalute Ravukal’.
Whither Copyright Access?
So far so good! But what of “access”? I don’t mean access in the sense of the regular “Access to IP” debates that we routinely witness on this blog; one laden with emotional outbursts and ideological mudslinging, pitting pro IP propagandists against IP minimalists.
Rather, I mean “access” in the copyright infringement sense, where one cannot be said to infringe, unless one has had access to the copyrighted work. Put another way, even if the defendants’ work product is 100% identical to the copyrighted work, the defendant cannot be enjoined unless it is shown that she had access to the copyrighted work and copied from it. And this constitutes the essential difference between copyrights and patents. While independent creation counts as infringement under patents, it is a valid defence under copyright—in fact, it does not even count as “infringement” in the first place! I make this conceptual distinction only because one need take shelter under one or more copyright defences only after a finding of “infringement” has been made. In the famed DU copyright case, Gopal Subramanian (a leading senior counsel) creatively argued that when it comes to “educational” taking, there can be no infringement at all in the first place. For copyright is the exception and public domain the controlling norm. Parliament has through its wide wording in section 52(1) (i) made clear that copyright norms cannot encroach upon the educational space. As to whether the court will bite into this innovative argument remains to be seen. For despite more than 3 years going by after conclusion of all arguments, the court is yet to issue its ruling.
Anyway back to Avalude Ravukal. What of “access” to the copyrighted work? The court does not make any mention of this angle at all, despite the facts clearly indicating the sheer improbability of the movie makers having had access to the plaintiffs’ work. In fact, the facts reveal that the script writer, Allepey Sherriff (Defendant number 4) had come up with a script years before the plaintiff had even sent his story (Alayazhi) to the magazine.
How is it that the high court decision (by Justice Shamsuddin) failed to take note this “access” angle? Particularly when it would have been far easier to dispose of the case on this count, rather than embarking upon the more difficult determination of whether or not the allegedly infringing movie was substantially similar to the plaintiff’s novel?
Fortunately, the lower court took note of this and found that the plaintiff had failed to demonstrate that his story had been accessed by the defendant in the first place. Unfortunately, the appellate high court (vested allegedly with superior legal prowess) misses this point altogether (barring making a bare reference to the lower court ruling). How did this slip up happen in a monumental copyright decision?
Interestingly, my dear friend and copyright connoisseur Nikhil Krishnamurthy (one of the finest minds in the Indian IP firmament, if I may) asked if our statute expressly calls for “copying” or “access” to be established prior to a finding of infringement.
Section 14(1) which spells out the exclusive rights bestowed on a copyright owner speaks of “reproduction” and “copies” in clauses (a) and (b). One could therefore argue that there is no reproduction where a defendant independently creates the work, without having copied from the plaintiff. However, other sub clauses in section 14 do not use the term “reproduction” or “copy”. Illustratively, one could argue here as well that since the various sub-clauses make a direct reference to the copyrighted work, there ought to be “access” to the copyrighted work in order for the exclusive right (granted to a copyright owner) to be implicated.
Access: Led Zeppelin and Stairway to Heaven
I’ve not seen any Indian case law that has directly and substantially deal with this issue, but will wait to hear from readers that are more in the know.
Anyway for those interested, access has been a central feature of many recent copyright developments. It figured quite significantly in the “Stairway to heaven” case, where the legendary duo of the Led Zeppelin fame (Robert Plant and Jimmy Page) were accused of stealing the initial riff from Randy’s rendition of “Taurus”.
While the jury held in favour of the defendants on the count of “substantial similarity” (finding that there was no substantial similarity between the songs), they held in favour of the plaintiffs in so far as the issue of “access” was concerned. I’m not sure why Plant and Page even tried arguing that they had never heard “Taurus” before: after all, these two bands toured together and one would assume that they most certainly had exposure to Taurus and its tunes.
More recently, the “access” issue featured in a copyright controversy involving a Nepali and an Indian film maker, as highlighted by Vasundhara here. Around the movie “Kriti”. Interestingly enough, both parties claim that it was the other had “copied”; a cross copying allegation of sorts!
Sadly, important and integral as it was to the issue of copyright infringement, the “access” angle went missing from the one case, where it mattered the most. Apparently a sequel is now in the offing. Will it be as controversial? And will it court a copyright case? Only time will tell. In the meantime, sleaze will continue to sell.
Ps: Apart from the script related copyright issue thrown up by Avalude Ravukal, there were allegations of musical copying too. With two of the most melodious tunes in this movie bearing an uncanny resemblance to Bollywood numbers. Quite strange, given that the music composer AT Ummer was otherwise known for his original works. Could his hands have been forced by the director as this piece (very vaguely) appears to suggest? Apparently film directors and producers (and even star actors) are known to force tunes that they fancy upon music composers. The story goes that when accosted with the allegation that he had blatantly copied the runaway hit song “Teri meri kahani” from a lovely Christmas carol by 6 year old Cleopatra Stratan , Himesh (nasal) Reshamiya insisted it was a tune handed down by Sallu Bhai, the Sultan of Swing. Who apparently hummed this up of his own accord. Well, what can I say? One can never accuse Bollywood of not being creative, when it comes to story telling!
Pps: For those interested in our short take on another movie that traversed the nexus between IP and sleaze, see here.