Wikiversity Law Reports/Civic Chandran v Ammini Amma

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Civic Chandran v Ammini Amma

16 PTC 329 (Kerala) 27 February 1996
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Ningalenne Communistakki

Summary

This is a landmark case in the copyright law in India in which it was held that even substantial reproduction of copyrighted work was permissible under fair dealing if the copying was in the public interest.[1][2]

Court and judges

Kerala High Court

  • T. V. Ramakrishnan

Background

In 1952, Thoppil Bhasi wrote a drama called Ningalenne Communistakki. Since then the drama has been staged many times and has gained widespread appreciation. Thoppil was an active member of the Communist Party of India and through his play he aimed to garner support for his party, and to organize the lower strata of society in a struggle against oppression, exploitation and poverty. This drama was instrumental in the political victory of the Communist Party of India in Kerala in 1957. All the rights in the play were first vested in Thoppil Bhasi and after his death, transferred to his legal heirs, who are also the plaintiffs in this case.

In 1995, Defendant no. 1 wrote a drama called "Ningal Are Communistakki" (hereinafter referred to as the counter-drama) as a response to the drama written by Thoppil Bhasi and was published in the Malayalam edition of India Today, the owner of which was Defendant no. 2. Defendant no. 3 was the Executive Director, Printer and Publisher of the same company. Defendant 4 was the President of "Rangabhasha", a drama troupe and Defendant no. 5 was the Secretary of the same. This drama troupe had been preparing to stage the counter-drama.

The drama contained the following categories of characters:

  • Upper class landlords: Vallya Veettil Kesavan Nair is the character representing this class.
  • Socially and educationally backward classes
  • Workers of the Communist Party: Mala, Karampan, Suman, Gopalan, Mathew and Pappu are characters representing this class.

Mala is the protagonist of the drama and belongs to the most depressed class of people. While initially, Gopalan and Mala were in love with each other, eventually Gopalan fell in love with Suman, the upper caste daughter of VV Kesavan Nair. By the end of the play, Nair is left in a helpless condition as his own blood fell in love with a class he was exploiting and sympathised with them. Furthermore, Paramupilla, Gopalan's father, who was initially against the CPI, joins Mala and the members of the same party. The drama ends with Paramupilla taking the red flag from Mala symbolizing his change of heart.

The counter-drama also contains the same characters and has nine scenes as opposed to fourteen in the original drama. The opening scene shows the red flag and deals with the failure of the war waged by Mala and the other members. This introductory scene ends with the entry of a character playing Thoppil Bhasi who says that he has come to see the real condition of Mala. The counter-drama then continues and contains many scenes that were copied from the original drama. However, all of these scenes were followed by commentary criticizing the play and had been authored by Defendant no. 1. Furthermore, the stage was divided into two parts: the upper platform and the lower platform. The scenes copied from the drama were enacted on the upper platform, whereas the criticism of it was enacted on the lower platform.

The plaintiffs alleged that the counter-drama had infringed on their copyright in the drama and filed a suit against the defendants. They also applied for an interlocutory order restraining the staging of the counter-drama, which was granted by the Additional District Judge who heard the suit. The defendants then appealed to the Kerala High Court to set aside the order restraining them from staging the play. This appeal was disposed off by the Kerala High Court in the instant case.

Held

Whether the copying done in the counter-drama constituted fair dealing of a literary work?

Since the Indian Copyright Act does not provide a definition of fair dealing, the Court relied heavily on the decision given in Hubbard v Vosper . Lord Denning in this case said that fair dealing is a question of degree. The number and extent of extracts and quotations and the use made of them needs to be considered. In the instant case, the Court laid down three relevant considerations for deciding whether the plaintiffs' rights had been violated. The first was the "quantum and value of the matter taken in relation to the comment or criticism”. The second was "the purpose for which it was taken" and the last was "the likelihood of competition between the two". The Court also relied on Copinger’s works and held that the question of fair dealing arises after it has been shown that a substantial portion has been taken.

After doing a scene by scene analysis of the counter drama and the drama, the Court came to the conclusion that the scenes and characters were not borrowed from the latter for the purpose of reproduction of the drama in any substantial manner. Moreover, the purpose was not to misappropriate the theme, form of presentation, theme, character, dialogues and the techniques adopted in writing the drama. The aim was not even to imitate the drama or to produce anything similar. The real objective of the counter-drama was to criticize the ideology depicted in the drama and to show how the drama had been unsuccessful in achieving the targets that it had purported to have aimed for. Moreover, the counter-drama also contained references to popular social and political leaders of Kerala which was not there in the drama. Hence, the Court said that there was enough material in the counter-drama to show that Defendant no. 1 had used labour and skill of his own and the differences between the original drama and the counter-drama could not considered inconsequential, especially so at the stage of interlocutory orders. The portions of the original drama which were copied in the counter-drama were only taken to make the criticism more effective. Hence, the Court opined that there was no prima facie case against the defendants as a strong defense is available to them. The Court refused to go into the question regarding the criticism was "fair and justifiable" by saying that the same should be considered during the hearing of the suit and not at the stage of interim orders.

The Court also refused to grant the injunction on the ground that the counter-drama leveled unfounded allegations against Thoppil Bhasi, the CPI and its leaders. The rejection was because of the fact that even if this allegation was true, it was not a ground to get injunction for the infringement of copyright. Moreover, keeping in mind the real aim of the counter-drama, an injunction against it would be a restriction on the freedom of expression of Defendant no. 1. The Court also took note of the fact that there was no competition between the drama and the counter-drama. Likelihood of competition was a relevant consideration as per Hubbard v Vosper and the same was not met in the instant case. Another important factor is the Court's decision was that though the counter-drama was published in January 1995, the suit was instituted in July of the same year, just a day before the play was due to be staged. Though this delay was not considered decisive and fatal, it definitely was a consideration that weighed against the plaintiffs.

Lastly, the Court noted that the interim injunction would cause irreparable injury to the defendants as they had spent a large amount of money in preparing for staging the play. On the other hand, no such irreparable harm would accrue to the plaintiffs as any damage suffered by them in the absence of an injunction could be sufficiently compensated for through the payment of damages.

Hence, the decision of the Additional District Judge was reversed and it was held that even if the copying was of substantial portions, the same could be excused as it constituted fair dealing.

Arguments

The plaintiffs/respondents alleged that the counter-drama created by Defendant no. 1 contained substantial portions of the drama as well as a reproduction of the characters and dialogues with some mere comments here and there. It was contested by the plaintiff that this was done in order to take "undue advantage of the creative talents and labour of Thoppil Bhasi" which was in violation of the Copyright Act.

The defendants argued that since the Additional District Judge did not consider the aspects of balance of convenience and irreparable injury and hence the order passed by him was perverse. Since there was high probability of the defence of fair dealing being applicable in the case, irreparable injury that could have been caused to the defendants should have been taken into consideration. In response to the defendants’ contention, the plaintiffs’ argued that in an appeal concerning the grant of a temporary injunction in a pending suit, the lower court’s decision should not be reversed unless the same is found to be completely illegal and perverse and the same was not the case in the matter before the Court.

Discussion

This case can be considered a landmark decision on fair dealing in the Indian copyright law. This is especially because of the enumeration of the relevant determining factors. An interesting point to note here is that even though the Court expressly mentioned “quantum and value of the matter taken” as a relevant consideration and performed a meticulous scene by scene analysis of the drama as well as the counter-drama, it eventually did not make any observation on this issue. In fact, after carrying out this analysis, it straightaway discussed how the purpose of the counter-drama was not to reproduce the drama or to convey the same idea in any substantial manner. Hence, a perfect opportunity to discuss all the relevant considerations was lost by the Court.

It has been referred to in two judicial decisions till now. In The Chancellor Masters and Scholars of The University of Oxford v. Narendera Publishing House and Ors. the Civic Chandran case was discussed and followed. This case involved the making of guides by the defendants of the text books published by the plaintiff. On the basis of the four factors mentioned in the US copyright statute and the decision in the instant case, the Indian Courts ruled in favour of the Defendants. The second case was of ICC Development (International) Ltd v New Delhi Television Ltd. It merely mentioned the case along with a host of other cases and did not discuss or significantly rely upon it.

Comparison with US and EU law

Before carrying out a critical analysis from a comparative perspective, it is essential to understand the difference between “fair use” and “fair dealing”. In jurisdictions that follow the latter approach, the specific purposes listed down within fair dealing are the only ones for which fair dealing is permitted. It cannot be done for any other purpose irrespective of how “fair” the other purpose is. The specific provisions and purposes mentioned within fair dealing are not mere examples of how the judges can enforce the fair dealing exception. Fair use, on the other hand, is the opposite as it only provides guidelines using which the Judges can decide whether a particular use is fair or not. This implies that unlike in fair dealing, the fair use exemption is not exhaustive and the Judges are free to use their discretion to permit anything that could qualify as “fair” for them. The fair use approach is followed in the United States whereas the fair dealing approach is followed in European Union and in India. Understanding the difference between these two is crucial as they define the limits of judicial discretion in copyright cases. Unfortunately, the Indian judiciary has often used these two terms synonymously without considering the nuanced difference between them. An example of such a situation is the case of Super Cassettes Industries Limited v. Mr. Chintamani Rao and Ors in which these two were used inter-changeably.

Section 107 of the US Copyright statute deals with the fair use limitation. It mentions certain situations to which fair use exception would apply but in doing so it uses the words “purposes such as”, thereby making it amply clear that the list is merely indicative and not exhaustive. It also enlists the 4 factors that have to be considered while determining whether the exception would apply. These factors are as follows:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work”

None of these four factors are decisive and a weighing and balancing of all have to be done. Furthermore, this list of factors is inclusive in nature as is evident from the wordings of the provision. This exception applies to unpublished works as well. Furthermore, the US law has evolved and now mandates that the defendant’s work should be transformative which means that it should be different in character and should not be meant to be a replacement.

The corresponding position in the European Union is governed by the Information Society Directive of 2001. Article 5(3) of this Directive mentions 15 purposes for which member states can carve out an exception. Copyright cannot be limited for any other purposes. This is a fair dealing provision. This Directive expressly requires the research or private study for which copyrighted material is used to be of non-commercial nature. Furthermore, in relation to the defence of criticism or review of a work, the Directives mention that the same will be applicable only to those works which have been lawfully made available to the public. Thus, many unpublished work fall beyond the ambit of the protection offered by it. Unlike their US counter-parts, these Directives also do not provide a list of factors that need to be considered.

The position in India is closer to that in EU. First, we follow the fair dealing approach and not the fair use approach. Section 52(1)(a) and (b) mention the specific purposes for which fair dealing exception is available. Hence, the Indian law has not given the Judges wide discretion with respect to this. Second, our statute does not lay down the factors that need to be considered while determining whether fair dealing has been done. We rely on judicial decisions for the same. The Indian Courts have frequently relied on Hubbard v Vosper. In the instant case, the Court laid down the relevant factors and tried to follow a factored approach. However, their approach was actually piecemeal as they did not apply one of the factors and gave more than required stress on some other factor. The first factor was not applied here and the second factor was treated as definitive. Interestingly, such an approach can be seen in other cases as well. For instance, in The Chancellor Masters and Scholars of The University of Oxford v. Narendera Publishing House and Ors. The ultimate question was whether the work was transformative and the other factors were not given the same amount of weight. The above-mentioned case also points out to how the Indian judiciary has adopted the requirement of transformation from the United States.

Notes

  1. Jeremy Malcolm, ed. (1 June 2013). Updating the UN Guidelines for Consumer Protection for the Digital Age. Consumers International. pp. 105–106. ISBN 978-0-9569943-7-0.
  2. Susan Štrba (22 August 2012). International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi-Legal Solutions. Martinus Nijhoff Publishers. p. 162. ISBN 90-04-22899-3.

Further reading