How far should injunctions be used as a remedy in copyright cases? That was the question faced by the Supreme Court in Academy of General Education v. Malini Mallya.
Dr. Kota Shivarama Karanth, a Jnanapeeth awardee, was stated to have developed a new form of the traditional ‘Yakshagana’, named ‘Yaksha Ranga’. Dr. Karanth was the Director of the Appellant academy, while the respondent claimed that she was the owner of the copyright by virtue of Dr. Karanth’s will. It was conceded that ‘Yaksha Ranga’ passed the threshold of ‘originality’ to be classified as a literary or dramatic work.
(For those of our readers who are knowledgeable about dance forms, what exactly is the originality in ‘Yaksha Ranga’? According to Dr. Karanth himself, Yaksha Ranga is a “creative extension of traditional Yakshagana”. What does this mean? How should we assess originality in art forms?)
Nonetheless, Dr. Karanth was alleged to have produced the original work in his capacity as Director of the appellant. Therefore, it was contended that the copyright belonged to the appellant itself, and could not have been passed on to the respondent by virtue of any will. Further, it was contended that in any event, the allegations of infringement were not made out considering that the appellant had performed the dance in a ceremony to celebrate the memory of Dr. Karanth, without charging any fees. The respondent had claimed – successfully in trial – that the work was produced while Dr. Karanth was working for the appellant, but was not produced in the course of employment of the appellant. Therefore, the copyright in the work had successfully devolved on to her. This much was not seriously contested by the appellants.
Next came the question of infringement. The dance was put up by the appellant to honour the memory of its former director without charging any fees. This was held in trial to be infringement, resulting in the remedy of permanent injunction against the Appellant from performing the dance. This is like saying that I infringe the copyright in a poem by reason of the fact that I read out the poem in a ceremony to celebrate the works of the author. And – more importantly – I can be prevented from doing so by virtue of an injunction.
Indeed, the order of injunction of the trial Court read, “Defendants or their employees or agents are restrained from performing the above said 7 ballets or Prasangas or in parts thereof in any manner as evolved distinctively by Dr. Karanth by way of permanent injunction.” The Supreme Court did not agree to sustain such a broad order of injunction. It held, “Section 52 of the Act provides for certain acts which would not constitute an infringement of copyright. 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… the same would not constitute any violation of the said order of injunction.”
In terms of legal principle, the decision is perhaps significant for saying that before passing an order for injunction, Courts should ensure that the order of injunction does not prevent fair use. Injunctions cannot be so broad as to prevent all performances of a copyright work altogether – permissible uses cannot be taken away. However, that still leaves a few prior questions unanswered. Must injunction necessarily follow in every case of infringement? In what circumstances will other reliefs be sufficient? Why should the injunction not be a remedy of last resort, to be granted only on specific proof of irreparable injury? I will follow up on these aspects in another post shortly…