Genda Phool Row: Where do we stand with the Economic and Moral Rights?

-Tanay Akash,

Final Year,

IPR Hons.

The deposition of Rs. 5 lakhs to the veteran folk artist "Ratan Kahar's" bank account on "humanitarian grounds" has raised a serious question regarding the competence of the Indian Copyright Law and it's applicability while curbing the corrupt practices going on in the Bollywood.

Ratan Kahar who is known as the original creator of "Boro loker biti lo" a bengali folk song which has been converted into some sort of rap song with a fusion of Punjabi lyrics by well known Rapper "Badshah" featuring "Jacqueline Fernandez" hitting more than 135 M views over YouTube (posted by Sony Music India) is left with these pennies as beneficence even when the row broke out. Earlier, for this reproduction neither any consent from the original creator has been taken nor any credit has been offered to him.

The basic fundamental principle associated with Intellectual Property Law is to provide monopoly over the created task. Apart from certain restrictions of public welfare like compulsory licensing or government use, TRIPS and the municipal copyright act extends the protection from economic to moral rights.

What does the Copyright Act Says?

Copyright is the kind of Intellectual Property Protection granted by the Indian Law for the protection of original authorial works. As per section 13 of the Copyright Act, 1957 Copyright shall subsist throughout India in the following classes of works, that is to say,

(a) original literary, dramatic, musical and artistic works;

(b) Cinematograph films and

(c) Sound Recording.

As per the facts of this present case the work "Boro loker biti lo" was the original literary work of Ratan Kahar which even without registration is protected as the work satisfies the conditions of Originality, Expression of Idea and the third essential which is fixation. Also, as per Section 17 of the act, the author or creator of the work is the first owner of the copyright.

Moreover, as per section 14 (a) in case of a literary, dramatic or musical work, not being a computer programme, the economic right includes,

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work.

Now the question rises here that if these economic rights are being granted to the author of the work, how the original work could be reproduced without consent or credit even when no assignment, licensing or transmission has been made.

The third question is with regard to the terms of copyright protection which as per section 22 of the act, copyright in published literary, dramatic, musical and artistic works shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.

This question can also be answered with the presence of the author himself.

In spite of all these grounds if it is being said that the work was present in public domain or it is a common popular folk even the ambit of moral rights are being covered in it.

As per section 57 of the act authors are given special rights in the form of moral rights

(a) To claim authorship of the work : and

(b) To restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.

Indian Judiciary towards such Acts

This is not the first time when such kind of incident has happened in India. In the landmark judgment of R.G Anand v. Delux Films and Ors. (AIR 1978 SC 1613) in which honourable Apex Court has provided guidelines for similarity between two works of with same idea of origin. This test of similarity is also being satisfied in the present case.

Moreover, the conditions laid down by the Court in case of Mannu Bhandari v. Kla Vikas Motion Pictures (AIR 1987 DEL 13) can also be taken as a reference in the present case. Though the writer lost the case because of the different ending in the movie but here in this instant case the reproduction includes the completely similar lines without any difference in the expression of the original idea. In the case of Hindustan Pencils Ltd v. Alpna Cottage Industries, The Copyright Board of Goa held that where there is a presence of similarity between the artistic works and it is similar in fundamental as well as substantial in material aspects it will surely attract the violation of copyright.

Further the case of Amar Nath Sehgal v. Union of India 2005 (30) PTC 253 (Del) which is also known for the evolution of moral right in India extended the concept of moral right from the right of paternity and integrity to Devulgation and Retraction rights enhancing the ambit to its utmost possible sphere.

Later on the same has been upheld in the subsequent cases too.

The Current Struggle

The beginning of the copyright regime is being traced from the labour theory of John Locke which practically drawn the concept of "Sweat of the Brow" which simply means one must be given protection for his labour and this theory for the protection of copyright is highly prevalent in the Common Law System. But, the labour law also brings the concept of collective bargaining with it and bargaining can only be fruitful if both the parties stands on the same foot.

Whenever a case of copyright infringement happens the most popular practice is the " settlement" but here in this instant case the bargain capacity of a poor artist could never be compared in front of a Multi Million Music company or a Millionaire Music God, thrashing the economic and moral right and leading towards a 5 Lakh humanitarian donation or unsaid implore.

The relation of Bollywood and Copyright infringement is very old. Beginning from Swamwar to Mehbooba Song, Raabta, Partner, Kaante, Sultan, Shooley, Banda ye Bindaas Hai, KnockOut, PK, Aitraaj, Harry Puttar, Udta Punjab, Padmavaat, Anjaana Anjani, Zindgi Na milegi Doobara, Judgemental hai kya, Bala Song and recently Ujhda Chaman and this everlasting list keeps going. Some were found guilty of plagiarism and some were found in the trap of Idea Expression Dichotomy. But in most of the cases the news not even went towards the public domain and the out of the court settlement happened.

But now it's high time to realise that the law has always been a way to stand for the rights of the needy and in the words of Hon’ble Mr. Justice R.F Nariman, “… Let every person remember that the "holy book" is the constitution of India and the principles of constitution by itself and through other legislations puts a bar on any such kind of violation of fundamental as well as intellectual property rights.”

It will be matter of keen observation that whether this case like some other cases will be eroded in the flood of bargain or the rightful owner of "Genda Phool" will get the adequate compensation and credit from "Genda Fools".

(The author is a final year law student from School of Law and Governance, Central University of South Bihar, with his specialization in Intellectual Property Rights Law.)