Karnataka High Court: In the instant petition challenging the registration of crime under Section 63 of the Copyright Act, 1957, Section 66 of the Information Technology Act, 2008 and Sections 120-B, 403, 465 and 34 of the Penal Code, 1860 against members of Indian National Congress for using popular songs from the film KGF Chapter-2 in the backdrop of the Bharat Jodo Yatra without any agreement/permission from the assignee, thereby violating copyright; the Bench of M. Nagaprasanna, J.*, rejected the petition holding that tampering the source code without permission and freely playing the audio would undoubtedly amount to infringement of copyright of the complainant. The Court further stated that the petitioners appeared to have taken the copyright of the complainant for granted and have tinkered and meddled with it; therefore, prima facie, all these factors become a matter of evidence which have to be “thrashed out by an investigation in the least”.
Background and Legal Trajectory: The matter originated during Bharat Jodo Yatra initiated by Rahul Gandhi, former MP from Wayanad Lok Sabha Constituency and eminent member of Indian National Congress (INC). On 04-11-2022, MRT Music (partnership firm owning and broadcasting music) registered a complaint under afore-stated provisions against Jairam Ramesh (General Secretary and Incharge of Communication, Publicity, Media for INC), Supriya Shrinate (Chairperson of Social Media and Digital Platform of INC) and Rahul Gandhi for using and playing a popular song of KGF Chapter-2, in the backdrop of the Yatra and for taking benefit of the song without seeking permission or entering into an agreement either with the owner of the music or with MRT Music (assignee).
MRT Music initiated a civil suit1, and an injunction was granted in their favour accepting the fact that prima facie there is violation of copyright. This interim order was challenged before the Division Bench of Karnataka High Court2 wherein by its order dated 08-11-2022, the Division Bench allowed the appeal in part and set aside the Civil Court order passed in subject to the condition that the petitioners herein would remove the offending content from the social media platform i.e., Twitter, Facebook, YouTube and Instagram. The matter was remitted back to the Trial Court for fresh consideration apart from what was considered by the Division Bench. The said civil suit is pending adjudication before the concerned Court.
During the pendency of the afore-stated civil suit, the impugned criminal complaint was registered.
Contentions: The Congress leaders contended that they have not violated copyright as MRT Music is not the owner of the copyright and is only a licensee from the copyright holder; therefore, cannot be seen to complain about copyright violation. It was further submitted that Bharat Jodo Yatra videos posted on Twitter, which contained the alleged sound recording in the background and featured Rahul Gandhi, was 30 second long and should not come under the purview of Section 63 of Copyright Act. It was further submitted that even if the use is construed to be violation of copyright, it will be hit by exceptions under Section 52 of Copyright Act, as the usage has been made for non-profit and non-commercial purpose in order to spread awareness of the Yatra.
Rebutting the afore-stated contentions by INC, counsels for MRT Music stated that INC members have violated copyright because MRT Music is an assignee under the provisions of Copyright Act, and therefore, has equal rights to that of a copyright holder. It was submitted that the petitioners have altered the source code of the song.
Court’s Assessment:
Perusing the facts, impugned complaint and arguments, the Court had to consider that whether actions of the petitioners would become an offence under Section 63 of Copyright Act. The Court noted that it is not in dispute that the song was being played in the background and those videos have been uploaded on YouTube and when the videos are uploaded there is a declaration on every video which depicts that the video is an intellectual property belonging to the INC. However, the Court pointed out that it is not the original copyright of the Indian National Congress, and it has tampered with the source code replacing MRT Music’s song with their song and have portrayed Rahul Gandhi to be a hero of the song. Portraying the Rahul Gandhi as a hero in any of the videos cannot become a crime; but the song that is being played in the video without seeking prior permission/agreement, amounts to violation/infringement of copyright of MRT Music.
The Court also noted that at the bottom of the reels posted by INC, it shows that it is the “original audio” of the Congress and to the original audio it has a thumb name “Try it” which clearly shows that the audio was playable by general public. If INC had not meddled with the source code, they could not have tampered with the audio and replaced it with their own audio.
Vis-à-vis INC’s submissions that proceedings under Section 63 of Copyright have to wait for the outcome of the above-mentioned civil suit, the Court rejected the argument citing cases by decided the High Court’s co-ordinate Bench and other High Courts which have stated that both civil and criminal suits can proceed simultaneously and if done so, no prejudice is likely to be caused to any of the parties. The Court further highlighted decision by its co-ordinate Bench which have interpreted Section 63 and civil remedies available under Sections 51 to 53A including Section 55 of the Copyright Act. The Court also stated that “It is not the law that merely because a civil remedy exists on infringement of copyright, criminal case cannot be registered”.
Regarding the contention that INC’s actions fall under exceptions under Section 52 of Copyright Act, the Court stated that any exception claimed is always a matter of trial albeit, in certain circumstances, as Section 52 has several explanations and exceptions which can be taken note of, would become available only at a later point in time. It was pointed out that senior counsel for INC has not pointed out as to which specific head of Section 52 would be helpful for them. In the absence of any specific averment to that effect or even a contention, the Court declined to consider any such specific exception.
Regarding MRT Music’s claim of copyright violation, the Court pointed out that MRT Music is assignee as per the provisions of Section 18 of the Copyright Act. Section 18 makes the assignee to have equal rights over the copyright for its utilization in any form and mandates that the assignee of the copyright becomes entitled to any right comprised in the copyright and shall be treated as the copyright holder for the purpose of the Copyright Act. The Court also noted that MRT Music has produced documents demonstrating to be the assignee of the copyright of the music for the film KGF Chapter-2. “Therefore, in terms of Section 18 the complainant has every right to complain infringement of the copyright”.
[Jairam Ramesh v. State of Karnataka, 2023 SCC OnLine Kar 34, decided on 28-06-2023]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case :
For INC- Vikram Huligol, Senior Advocate and Leela P. Devadiga, Advocate;
For Respondents- Mahesh Shetty, HCGP for R-1; S. Sriranga a/w Pranav Kumar M., Advocate for R-2.
Buy Penal Code, 1860 HERE
1. Commercial O.S.No. 1594 of 2022
2. Commercial Appeal No. 460 of 2022
