People following Indian politics would know about the “Bharat Jodo Yatra” (Yatra). While the Yatra seems to have ended, its (presumingly) unforeseen aftermath still continues to haunt the Indian National Congress (INC). Readers would remember Nikhil’s informative post on the copyright infringement claims by MRT Music against INC for unauthorised use of KGF: Chapter 2 songs. Adding to the controversy, the High Court of Karnataka in Sri Jairam Ramesh vs State of Karnataka and Ors has now refused to quash the FIR by MRT Music against Congress leaders Rahul Gandhi, Jairam Ramesh and Supriya Shrinate.
Background
MRT Music, who owns the rights on KGF Chapter 2’s songs, filed a complaint against Jairam Ramesh, INC’s General Secretary of Communications, Supriya Shrinate, Chairperson of Social Media and Digital Platforms of INC and Rahul Gandhi, when it came to know that INC was using songs from KGF-Chapter 2 (Hindi version) for the promotion of the Bharat Jodo Yatra. MRT Music in its complaint, alleged that Supriya Shrinate, incharge of the social media handles of Jairam Ramesh “illegally and unlawfully synchronised the sound recordings and audio video content of the film KGF Chapter 2 which is owned and held by it”. It was further alleged that the songs were tampered and modified to be played in the background during the Yatra in Karnataka and also in the promotional videos of INC’s social media handles. Interestingly, the INC went a step further to claim the IP in the promotional videos including the contested songs by way of a disclaimer and logo of ‘Bharat Jodo Yatra’ in the videos on its social media platform.
MRT Music also claimed dilution of their intellectual property since INC not only made the songs their own but also replaced the logo of MRT Music with ‘Bharat Jodo Yatra’. However, it is surprising to see that such a claim was not substantiated by highlighting which specific IP was being diluted here and how.
Apart from filing the complaint, the MRT Music also filed a civil suit where the Trial Court granted an injunction against the Yatra finding prima facie violation of copyright. Appeal to the Division Bench of this Court permitted the recommencement of the Yatra without the playing of the songs and removal of videos containing the copyrighted works from INC’s social media handles. It further redirected the case back to the Trial Court which is pending adjudication.
The present writ was filed seeking to quash the FIR against the leaders.
Contentions by the Parties
The petitioners contended that the complaint, under Section 63 (which makes copyright infringement a cognizable and non-bailable offence) is not maintainable. It was argued that the alleged use of the sound recording was over a 30 second video with Rahul Gandhi addressing the public/ participating in the Yatra will not amount to a copyright infringement. Such a claim could have been supported by the doctrine of de minimis, but the petitioners didn’t support their claim with any law. Instead, they generally claimed support of exceptions under Section 52 without any reference to a particular provision. They further argued that MRT Music is only a licensee and cannot assert copyright ownership or its violation. Lastly, they submitted that since a civil suit is already awaiting adjudication on the matter and an FIR is not maintainable when the Act only provides for an injunction and a decree as remedies for copyright infringement.
The Respondent claimed to be the assignee and thereby copyright holder in the suit songs. It contested free use of the songs of the Respondent by the Petitioners without prior permission and alteration of the source code of the suit songs and changing them in their entirety and claiming to be the copyright holders of the altered songs.
Holding
The High Court of Karnataka in a precise and clearly laid out order observed that Respondent is the copyright holder of the suit songs and by tampering with the source code, the petitioners have prima facie infringed the copyright. The court further held that there is a clear violation of the copyright in the absence of a claim of any specific exception from the fair dealing. It refused to hold that investigation of a crime cannot be parallelly undertaken when a civil suit is already pending, relying on ruling of the coordinate bench of this Court in the case of Mangalore New Sultan Sultan Beedi Works vs State of Karnataka and Ors. The Court clarified that “the owner of copyright is entitled to all remedies” and “a crime ought to be registered as it cannot be controlled by civil remedies available under Section 55.”
Analysis
This is not the first time a case has been registered for unauthorised use of copyrighted songs during political campaigns (see here, and here for posts by Prarthana and Nikhil, and here for other examples of artists who objected to the use of their works as campaign songs). What makes this case interesting is the claim of IP rights in the altered and modified versions of the songs. Often, though fair dealing is used as a defence (as also in the present case), there is hardly any specific provision from the extensive list of exceptions that could really protect against such allegations of copyright violations during political campaigns. The analysis has already been covered by Nikhil in his posts (see here and here). Perhaps reliance on a specific provision by INC would have brought us further judicial insight and clarifications on the issue. But that’s only wishful thinking!
While leaving the infringement question aside, criminalising copyright infringement has been a subject of debate time and again and has been discussed extensively on SpicyIP (see here and here). It is still questionable whether copyright violation needs to be a crime? Are the available remedies not sufficient? And what about the controversial Section 63 that makes things more reckless: allowing a police officer to arrest you without warrant? These questions have been raised in the linked posts but remain unanswered. Each case that avails criminal remedies makes one more concerned and compels to ponder over these questions. Speaking of the present case, since the Order refused to quash the FIR, INC leaders could be in serious trouble especially when punishment for copyright infringement is non-bailable!
But what’s intriguing is that, knowing well of the criminality of copyright infringement, the INC seems to have taken their response very lightly. Their vague contention under fair dealing, claiming the modified and distorted songs as their own through disclaimers and logos have only added fuel to the fire. One only hopes that the case will be an example in showing political parties the importance of choosing the right way of using other’s works.
