Kerala High Court Grants Anticipatory Bail to Producer & Director of 'Kantara' under Copyright Act over Plagiarism of `Varaharoopam' Song

Kerala High Court Grants Anticipatory Bail to Producer & Director of 'Kantara' under Copyright Act over Plagiarism of `Varaharoopam' Song

The Kerala High Court granted anticipatory bail to Vijay Kirgandur and Rishab Shetty, the Producer and Director respectively of the Kannada superhit movie 'Kantara' in a case under the Copyright Act 1956 over plagiarism allegations relating to 'Varaharoopam' song.

The petitioners, who were named as accused 1 and 2 in Crime No.703/2022 of Kozhikode Town Police Station, sought anticipatory bail in the matter by resorting to Section 438 of the Code of Criminal Procedure (CrPC).

It was alleged by the prosecution that accused 1 and 2 herein committed offence punishable under Section 63 of the Copyright Act by using the music of `NAVARASAM', which was exhibited in `KAPPA' T.V owned by Mathrubhumi Printing and Publishing Co. Ltd., performed by Thaikkudam Bridge band by including the same music `VARAHAROOPAM', in a Kannada movie `KANTARA', produced by the 1st accused and directed and acted by the 2nd accused, who had thereby violated the copy right.

The accused/petitioners submitted that the entire allegations were false and defacto complainant as well as Thaikkudam Bridge Band had filed two separate suits before the District Court, Kozhikode alleging copyright violation and when the petitioners/accused challenged the maintainability of the suits, the District Court found that the suits were not maintainable before the District Court and were directed to be presented before the Commercial Court having jurisdiction to decide the issue.

The single judge Justice A. Badharudeen noted that it was worthwhile to decide the question as to whether offence under Section 63 of the Copy Right Act is a non bailable or bailable offence?

The Court referred to the judgment passed by the Supreme Court in M/s Knit Pro International vs. The State of NCT of Delhi and another. (2022) wherein it was held, that offence under Section 63 of the Copyright Act is a cognizable and non-bailable offence, therefore, the legal position is well settled that an offence under Section 63 of the Copyright Act is non bailable and cognizable.

The Court while discussing Section 63 comprehensively remarked that, "no doubt, the Copyright Act, 1957 has been enacted with a view to protect Copyright secured by a person or a firm, as the case may be, without being infringed by third parties or any others. Section 63 of the Copyright Act, 1957 makes infringement of copyright or other rights conferred by the Copyrights Act as an offence."

Next the Court dealt with the question that whether there were prima facie materials in this case to check that there was infringement of copyrights in so far as `NAVARASAM', for which copyright was secured by KAPPA T.V owned by Mathrubhumi, by including the same in `KANTARA' cinema under the name and style `VARAHAROOPAM.'

The Court noted that the prima facie opinion collected by the Investigating Officer was to the effect that there was similarity between both songs. The Investigation Officer had also, on gathering opinion from expert, reported that `VARAHAROOPAM' is, the plagiarized and pirated version of `NAVARASAM'. The Court opined that detailed investigation was necessary in this regard. Therefore, at the initial stage of investigation, the Court could not hold that there were no prima facie materials and the petitioners were innocent and they did not commit offence punishable under Section 63 of the Copyright Act.

The Court pointed out, right of a person or a firm, who obtained copyright in respect of a particular subject has a protected right and any infringement thereof is a serious offence punishable under Section 63 of the Copyright Act. The legislative intent behind the Copyright Act is to protect the Copyright, which one obtained after huge investment and tedious efforts to get the subject as one with high fame, stated the Court.

The Court was of the view that, "if someone enjoys or uses the same either by plagiarization or by making the same deceptively similar and getting benefit out of them, either monitory or otherwise by infringing the said right, allowing infringement to continue and to facilitate the infringer to use or exhibit a cinema with the said plagiarized version, ultimately after the expiration of the vital part of the period of use or exhibition and collection of huge amount by the Director and Producer of the cinema, in fact, the same will be detrimental to the interest of the persons who obtained copyright."

Hence, the Court discerned that by releasing the accused/petitioners on anticipatory bail and allowing the infringement to continue so as to permit the infringer of the copyright to take benefit out of the same, could not be done and ultimately the infringer would get benefit out of the plagiarized and pirated version after infringing the copyright of another person which he obtained after long cherished hard work and intellectual application of mind. Resultantly, the copyright holder's right to enjoy benefit out of the copyright protected subject matter practically will be taken away.

Therefore, the Court noted that while considering grant of anticipatory bail in cases of such nature, the Courts should be very vigilant foreseeing all the above aspects. In the case at hand, admittedly civil litigations have been initiated, but further proceedings stood stalled because of the jurisdictional issue which was currently pending.

Hence, the Court granted the anticipatory bail with imposing the condition and thereby, restraining the petitioners from exhibiting the cinema `KANTARA' along with the music `VARAHAROOPAM' for a reasonable period till an interim order or final order in this regard will be passed by the competent Civil Court.