Gunjan Saxena: the Kargil girl
Gunjan Saxena: the Kargil girl

The article is written by Harmanpreet Kaur from Amity University, Kolkata. The article focuses on copyright infringement issues in respect of the movie “Gunjan Saxena – the Kargil girl”.

Introduction

In recent times, the copyrights related to music and their rights to producers, artists among other stakeholders have been under strong discussion around geographies. Copyright constitutes an essential element in the development process of a country. The enrichment of the national cultural heritage depends directly on the level of protection afforded to literary, dramatic, musical and artistic work and sound recordings. The higher the level, the greater the encouragement for authors to create; the greater the number of a country’s intellectual creation; the higher its own. 

Nowadays, there have been various claims against the companies and industries on copyright infringement, this can be due to advancements in technological innovations i.e, computer, audio recordings, video recordings, reprography which have posed great challenges to the copyright laws from time to time and forced the nations to amend their respective laws. The copyright law not only protects the rights of copyright owners and the neighbouring rights but also deals with the subject of public interest and tries to strike a balance between the two in this digital environment: copyright owners and the neighbouring rights. The rise in conflicts related to the issuance of copyrights in various films and music has made the copyrights extend their protection to a whole new world full of technological innovations. The grant of copyright has been an issue rising in the 21st century in the case of films, videos and on Youtube. Bollywood has faced a lot of controversies with respect to copyright infringement whether using the songs in the films from the previous already released movies to remix the songs and making them available in the public domain. 

The article will provide an insight into the concept of copyright infringement with reference to the claims against the movie “Gunjan Saxena – the Kargil girl”  by Dharma productions and the suitable remedies and compensation for the same.

Issuance of copyright infringement lawsuit against “Gunjan Saxena – the Kargil war” 

The movie “Gunjan Saxena – the Kargil war” has been in a prolonged public dispute since its release. Initially, the filmmakers were accused of misrepresenting the Indian Air Force, stating that the IAF was unequal and there was discrimination against the women, thereby infringing Article 14 of the Constitution of India.

Another challenge faced by the movie producers and directors was the claim of copyright infringement against the movie.

Works in which copyright subsists

According to Section 13 of the Copyright Act, 1957 the copyright shall subsist in the original, literary works, dramatic works, musical works, artistic works, cinematographic films, and sound recordings. The work will only be classified under the protection of copyright if it is original and is not copied or adapted from any other similar work.

Indian Association of Singer Rights (ISRA) and their claim for copyright infringement against Dharma Productions 

The Indian Association of Singer Right filed a suit in the Delhi High Court against Dharma productions private limited claiming that the production unit’s released cinematographic film ‘Gunjan Saxena- the Kargil girl’ had commercially utilized, exploited, and infringed the basic rights of the association by using three songs in the movie that were originally part of the earlier cinematographic films The  Indian Association of Singer Rights (ISRA) claimed that the association had copyright in respect of the performs’ rights under Section 2(q) and Section 2(qq) for the songs “Ae Ji o Ji” from the film ‘Ram Lakhan; “Choli ke peeche kya hai” from the movie ‘Khalnayak’ and “Saajanji Ghar aaye” from the movie ‘Kuch Kuch Hota hai’. The Indian Association of Singer right’s(ISRA) in its plea to the High court stated that the production unit had committed copyright infringement under Section 51 of the Copyright Act, 1971, and thereby the production unit should pay the royalty for the commercial exploitation of the performance of the Indian Association of Singer right’s (ISRA) members and had infringed the basic rights concerning The Copyright Act, 1957. 

ISRA’s claim on the performers’ rights

Claim by the Indian Association of singer right’s

The Indian Association Singer Right’s claimed that the production house of Dharma Productions has violated their performer’s right by illegally using the already used songs in the movie Gunjan Saxena – the Kargil girl.

Let’s take a look at the performer’s rights and their exception under the Copyright Act, 1957

Performer’s rights 

The rights of performers, record producers, and broadcasting organizations are referred to as the neighbouring rights because they have developed in parallel with copyright, the exercise of these rights is very often linked with the exercise of copyright. The performers, record producers, and broadcasting organizations work as intermediaries for disseminating and broadcasting the works of the authors to the public. The performer’s rights were not recognized until the 20th century even though sufficient skill and labour were done by them. 

The Copyright Act, 1994 was enacted by the parliament to protect the rights of the performers to become a member of the TRIPS agreement. One of the main objectives of the Amendment Act was to extend protection to all the performers through special rights, known as “performer’s rights”, in respect of the making of sound recordings or visual recordings of their live performances, and certain related acts.

Section 2(q) defines the term ‘performance’, which means that any visual or acoustic presentation is made live by one or more performers. 

Section 2(qq) of the Act defines the term ’performer’ to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake-charmers, a person delivering a lecture, or any other person who makes a performance. A person shall not be treated as a performer, whose performance in a cinematograph film is casual or incidental and in the normal course of the industry is not acknowledged anywhere including in the credits of the film.

  1. Section 38A – exclusive rights of the performers

The Copyright Amendment Act of 2012 made drastic changes to the exclusive rights of the performers and Section 38A was inserted by the Act thereby describing the exclusive rights of the performer. The exclusive rights of the performers are without prejudice to the rights conferred on the author, and have the right to do or authorize the doing of any of the following acts in respect of the performance or any  substantial part thereof i.e,

  1. To make a sound recording or any visual recording of performance including the reproduction of it in any material form or storing it in electronic medium or other means, or issuance of the copies of it for communication of it to the public domain or selling or giving it for commercial rent.
  2. To broadcast or communicate the performance to the public except in cases where the performance is already broadcasted.
  3. Section 38B – moral rights of the performers

The Copyright Amendment Act of 2012 inserted a new Section 38B in the Copyright Act which, similar to Section 57, provided moral rights to the author. Section 38B deals with the moral rights of the performers. It provides moral rights to the performer of a performance. These rights are available to them independently of their rights after assignment either wholly or partially. These rights are:

  1. The right to be identified as the performer of his performance except where omission is made by the manner of the using of the performance. 
  2. The right to restrain or claim damages in respect of any distortion, mutilation, or other modification of his performance would be prejudicial to his reputation.

Violation of the performers’ rights

  • The performer once consented to the incorporation of his performance in a cinematographic film by a written agreement, he shall not in the absence of any contract, object to the enjoyment by the producer of the film of the performers’ rights in the same film.
  • The performer shall be entitled to the royalties if the other party makes commercial use of the performances of the performer thereby violating his performer’s rights.
  • Reproduction or communication of the exact sound recording or the visual recording without a license or permission being obtained from the owner of the visual or audio recording would amount to copyright infringement.

Hence, it can be stated that if Dharma productions used the sound without the permission of the real owners i.e., ISRA they are liable for copyright infringement and have to pay the royalties for the same.

Exceptions to the performer’s rights

Section 39 was introduced by the Copyright Amendment Act, 1994 which provided that no performer’s rights shall be deemed to be infringed if:

  1. The making of any sound recording or visual recording for the private use of the person making such recording only for bonafide teaching or research;
  2. The use that is consistent with the dealing of a performance or a broadcast in the reporting of current events or for any bonafide review or teaching or research; 

Contentions raised to the Indian Association of Singer Rights’ claim by the Dharma Productions Private Limited

The production unit of Karan Johar i.e, Dharma productions contended to the claims of the Indian Association of Singer Right’s (ISRA) and rejected the argument made by the plaintiff in respect of copyright infringement stating that the ‘studio performances, which do not go live, are not qualified for the grant of protection of copyright’, and so was the issues in the present case, wherein the defendants i.e, the Dharma Production unit claimed that the performance was in the studios and did not go live and so the performers’ rights cannot be claimed by the petitioners. The defendants even voiced their stand over the matter stating that the songs used in the movie were granted a license for its usage from the concerned labels, and therefore the production house was not liable for any kind of copyright infringement. 

Stand of Dharma Productions on the grant of licenses by the music labels 

It was claimed by the Dharma production unit that the songs used in the movie were granted a license by the music labels i.e., the owners for its use in the movie, and thereby, the unit had committed no acts of infringement.  

Licenses

The license is a personal right that cannot be transferred except in certain circumstances. It is a right to do some positive acts. It is a personal right and creates no more personal obligation between a licensor and a licensee, and the license is generally revocable at the will of the grantor. 

There can be two kinds of licenses namely exclusive license and non-exclusive license.  

  1. An exclusive license means a license that confers licensor or licensee and persons authorized by him to the exclusion of all other persons including the owner of the copyright or any right comprising the copyright in a work.
  2. A non-exclusive license means a license in which the owner of the copyright retains the right to grant licenses to more than one person or to exercise it himself.

Section 30 of the Act states that the owner of the copyright in a work may grant any interest in his copyright to any person by license in writing by him or by his duly authorized agent. The license can also be granted in a future work by the owner, but the license will only come into effect when such future work comes into existence in the public domain.

In the case of Leopold Cafe & stores v. Novex Communications Pvt. Ltd (2014), the court agreed with the contention of the defendant that while acting as an agent it would necessarily have to indicate on its licenses. The court stated that Novex had demanded from various hotels and restaurants etc that licenses be obtained from it directly and stated that if Novex is carrying on business and at the same time is issuing licenses, then the act would amount to contravention to Section 33 of the Act.

Verdict of the Delhi High Court

The Delhi High Court stated that it has the authority to deal with the issue, wherein the suit was filed by the plaintiffs for copyright infringement against the defendants. The court referred to the case of Neha Bhasin v. Anand Raj Anand & Another (2006), wherein the plaintiff, Neha Bhasin claimed that her voice has been stolen by the defendants and used by the defendants which lead to commercial exploitation of her songs and also breached her performer’s rights under Section 38A and Section 38B. The court opined that “‘Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed. So, as regards the performers’ rights, the plaintiff has a serious triable case”. 

Therefore, the court had the authority to decide the matter in the case of the Indian Association of Singer right’s v Dharma productions. The court referred to the definition of the ‘Performer’ under Section 2(qq) of the Copyright Act stating that the Section includes in its ambit, a singer and the performer’s right means any visual or acoustic performance made live by one or more persons. The court considered the facts that the rival contentions will be considered by the court further in its next hearing and deferred from passing any order or judgment to the defendants to submit the amount till the next hearing of the case.

The Delhi High Court has not come to the conclusion, and has asked the respected parties to submit their petitions in the court and have also not asked the production house to pay any amount to royalty till the next hearing. The case has not yet been decided by the Delhi High Court.

Possible outcomes that can be drawn out from the case 

If the defendants had committed copyright infringement under Section 51, they will be asked to pay damages to the plaintiffs in the form of civil remedies or criminal remedies.

Section 51 – Copyright Infringement 

The Act provides copyright protection to the exclusive rights of the owner. Thus if a person uses any of the exclusive rights available to the owner of copyright without his prior permission or any license granted by the Registrar of the copyright, he shall be deemed to have infringed copyright.

Under Section 51, the copyright in a work is said to be infringed if:

  1. A person uses any of the works of the owner without his permission or the permission from the Registrar or any other competent authority,
  2. A person uses the work for profit-oriented purposes,
  3. A person makes the infringing copies of the work for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale those copies,
  4. A person distributes those infringing copies which affect prejudicially the owner of the copyright,
  5. A person exhibits those infringing copies in public by way of trade.

It was held in the case of V.Govindan v. Gopalakrishna (1955), wherein the plaintiff published an English Tamil dictionary. The defendant had subsequently published another English Tamil dictionary. The defendant was sued by the plaintiff alleging that the copyright in his work had been infringed by the defendant. The plaintiff was not held for copyright infringement.

In the case of S.K.Dutt v. Law Book Company (1954), the court stated that the infringement is said to be caused only when it can be shown that someone instead of utilizing the available sources to originate his works, appropriated the labours of another by resorting to a slavish copy of mere colourable imitation thereof. The ‘animus furandi’ is an intention to take from another for purposes of saving labour, is one of the important ingredients to be found against a defendant before he can in a suit under the Copyright Act, be damned.  

Violation of Performer’s Rights

‘There is no relief to the owner if his performer rights are violated. They should be given protection under Section 51 of the Copyright Act. The court, when it has to decide the case with relevance to the performer’s rights, refers to the international treaties, because there are no provisions related to it in the domestic laws for its violation.

It can be expected that if the courts decide the case in the future, there can be an amendment to the Copyright Act, 1957 expected regarding the Performer’s rights.

Conclusion 

There has not been a final decision made by the court concerning the dispute relating to the movie ‘Gunjan Saxena- the Kargil girl’. The disputes related to copyright infringement are increasing with time, it can be said that the creators have lost originality and authenticity which then results in infringing the basic rights of the authors and the owners. Before releasing the films and making them available to the public domain, should keep a check on the issues that would arise releasing the film, it is therefore suggested that the producers and the directors should use original content and be authentic enough to avoid any type of lawsuits against them. 

References


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