India: Supreme Court revisits Fair Use Doctrine

Last Updated: 15 April 2009

Yakshagana is a form of ballet dance, having its own unique heritage. Dr. Kota Shivarama Karanth, a Novelist, Play Writer, Essayist, Encyclopediationist, Cultural Anthropologist, Artist, Writer of Science, Environmentalist and Jnanapeeth awardee, had developed a new form of `Yakshagana' and the Director of the Academy of General Education, Manipal expired in December 1997. Dealing with a copyright dispute emerging from his work, involving the Academy he chaired and his beneficiary, is the matter of Academy of General Education, Manipal and Anr. v. B. Manini Mallya 2009 (39) PTC 393 (SC) in appeal from the Karnataka High Court' verdict.

Yakshagana Ballet had been developed by Dr. Karanth and was performed in New Delhi in September 2001. Manini Mallya, in whose favour Dr. Karanth had executed his Will had filed a suit for declaration, injunction and damages alleging violation of the copyright in respect of the said dance vested in her in accordance with the terms of the said Will. Stating that Dr. Karanth had developed a new distinctive dance, drama troop or theatrical ,system which was named by him as `Yaksha Ranga' which in his description meant "creative extension of traditional Yakshagana" and, thus, the Academy had infringed the copyright in the same by performing the form without obtaining prior permission from her. She also stated that seven verses or prasangas for staging Yaksharanga Ballet had been composed by Dr. Karanth apart from bringing in changes in the traditional form thereof on its relevant aspects, namely, Raga, Tala, Scenic arrangement, Costumes etc. Ms. Mallya claimed copyright in respect of `literary and artistic works' in her favour in terms of the relevant clauses 11 and 12 of the said Will.

The Academy denied and disputed any copyright of the dance in Dr. Karanth stating that whatever work had been done was in the capacity of a Director of the Kendra with the assistance, finance and staff provided by the Organization of Mahatma Gandhi Memorial College Trust in respect whereof a Committee was formed under him by the Board of Trustees. It was contended that Dr. Karanth was appointed as the President of the Executive Committee of Yakshagana Kendra for a period of three years by the Academy and while holding the said post only he expired.

The District Judge, Udupi had decreed the said suit declaring Ms. Mallya the exclusive copyright holder in respect of seven Prasangas and that the same had accrued to her by reason of a Will as a residuary legatee. The Court restrained the Academy or their employees or agents were from performing the said seven ballets or Prasangas or any parts thereof in any manner as evolved distinctively by Dr. Karanth. An appeal against the decision was filed at the Karnataka High Court, which was dismissed.

The Counsel appearing on behalf of the Academy conceded that a copyright in the literary work had been assigned by reason of the said Will in favour Ms. Mallya. He also stated that Dr. Karanth had made substantial changes in the original traditional form of the Yakshagana dance and that it fell within the purview of `originality' in respect whereof copyright could be claimed.

However, he urged that in view of the findings of the learned trial judge, it ought to have been held that no cause of action arose in this case as the Institution had performed the said dance at New Delhi in the memory of Dr. Karanth without charging any fees. He also stated that the form of copyright as regards dramatic work as has been held by the High Court as being a part of the literary work is incorrect as they connote two different things. Further, he also stated that the form of injunction granted in favour of Ms. Mallya was not in terms of the provisions of the Copyright Act, 1957 as the Academy in view of clauses (a), (i) and (l) of sub-Section (1) of Section 52 were allowed to use the same.

Looking at the scheme of the Act, the Court noted that Section 2 being the interpretation section, rendered various definitions. It was also noted that Section 13 original literary, dramatic, musical and artistic works; cinematograph films; and sound recording as the subject matter of copyright. Further, Section 17 dealing with the "First owner of copyright", whereby the author of a work is deemed to be the owner of the copyright and Proviso (d) appended thereto stating that in the case of a Government work, that Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein was also read in. Other vital sections of the Act dealing with Term of a copyright (Sections 22, 23) and the fair use provision as elucidated in Sections 52(1)(a), (i) and (l) of the Act, was also thrown light upon.

The Supreme Court heeding attention to the issues framed in the suit, noticed that in view of the submissions that were made at the bar, Ms. Mallya had acquired copyright in respect of seven Yakshagana Prasangas as also in respect of Yakshagana dramatic or theatrical form as a residuary legatee in terms of clause 12 of the Will dated 18.6.1994. The Court also noted the High Court's opinion of Clause 11 of the Will being attracted.

The Supreme Court addressing the issue stated that the term dramatic work may also fell within the purview of literary work being a part of dramatic literature. However, the Court stated that the provisions the Act make a distinction between the `literary work' and `dramatic work' and that in view of the statutory provisions, the Court stated that it held no doubt that copyright in respect of performance of `dance' would not come within the purview of the literary work but would fall under the ambit of `dramatic work'.

Taking note of the injunction plea being rendered in favour of Ms. Mallya both by the trial as well as High Court, the Supreme Court noted that the High Court modified the order of the trial Court stating that if the Academy desired to stage any of the seven Yakshagana prasangas in the manner and form as conceived by Dr. Karanth, the same could be done only in accordance with the provisions of the Copyrights Act, 1957 owing to the copyright in seven prasangas vesting being vested with Ms. Mallya.

The Supreme Court opined that a decree for injunction was an equitable relief and that passing a decree for permanent injunction would avoid multiplicity of proceedings. The Supreme Court clarified that while passing such a decree, the statutory provisions governing the same ought to be considered and referred to precedents to the same effect. The Supreme Court also opined that the High Court should have clarified that the Academy could take the statutory benefit of the fair use provisions contained in clauses (a), (i) and (l) of sub-section (1) of Section 52 of the Act. Elucidating upon the aspect, and declaring the aoppeal to be dismissed, the Court stated:

"When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private use including research and criticism or review, whether of that work or of any other work, the right in terms of the provisions of the said Act cannot be claimed. Thus, if some performance or dance is carried out within the purview of the said clause, the order of injunction shall not be applicable. Similarly, appellant being an educational institution, if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of Section 52 of the Act strictly, the order of injunction shall not apply thereto also. Yet again, if such performance is conducted before a non-paying audience by the appellant, which is an institution if it comes within the purview of amateur club or society, the same would not constitute any violation of the said order of injunction."

© Lex Orbis 2009

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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