Unauthorized use of music during “Bharat Jodo Yatra” invites both Civil and Criminal proceedings

The High Court of Karnataka refused to quash the FIR registered by a music company MRT Music (“Respondent”) against Congress leaders, namely, Rahul Gandhi, Jairam Ramesh and Supriya Shrinate (“Petitioners”) over the alleged copyright infringement by unauthorised use of a song from the film “KGF Chapter 2” in the promotional video for Bharat Jodo Yatra (Unite India) organized by them. The Court, while dismissing the present writ petition, made a notable observation that “it is not the law that merely because a civil remedy exists on infringement of copyright, criminal case cannot be registered”.

Background and brief facts of the case:

  1. The Respondent registered a complaint against the Petitioners on November 4, 2022, alleging that:
    1. Popular songs from the movie “KGF Chapter 2” were played in the backdrop of the Yatra without any agreement or permission from them thereby violating the copyright.
    2. Two videos of the Bharat Jodo Yatra (Unite India) were posted on the Twitter handle of the Congress, and those sound recordings were owned and held by the Respondent.
    3. The Petitioners also blatantly and slavishly used the mark “BHARAT JODO YATRA” thereby claiming ownership of the video including the sound recording and audio-visual content. Thus, committed an act of creating false electronic document and distributing the same as a genuine video.
  2. Based on this complaint, an FIR being Crime No. 362 of 2022 for the above stated offences was registered primarily, for violation of copyright under Section 63 of the Copyright Act and Section 66 of the Information Technology Act.
  3. The present writ petition was filed to challenge and quash the registration of the FIR. Consequently, the investigation was interdicted by an interim order dated December 16, 2022 of this Court, the effect of which continues to subsist.
  4. On the other hand, the Respondent simultaneously initiated a civil suit before the City Civil & Sessions Court, Bangalore, wherein an injunction was granted against the Yatra accepting the fact that prima facie there is a violation of copyright.
  5. This interim order granted in the civil suit was appealed before the Division Bench of this Court. The Division Bench by way of its order dated November 8, 2022 allowed the appeal in part, setting aside the interim order permitting the Yatra to continue, subject to the condition that the Petitioners would not play the songs and remove the offending content from the social media platform i.e., Twitter, Facebook, YouTube and Instagram.
  6. The matter was remitted back to the trial Court for consideration afresh apart from what was considered by the Division Bench. The said civil suit is presently pending adjudication before the City Court, Bangalore.

Issues before the Court:

  • Whether the Petitioners have by their acts made themselves vulnerable to punishment under Section 63 of the Copyright Act or the other provisions that are alleged.
  • Whether both civil and criminal remedies can be pursued on infringement of copyright.

Petitioners’ contentions:

  1. That they have not violated any of the copyright of the owner of the copyright. The Respondent is not the owner of the copyright. They are only a licensee from the copyright holder and thus, cannot claim that their copyright has been violated.
  2. The videos uploaded on the official Twitter page are of about 30 seconds portraying Rahul Gandhi in one video addressing the public and, in another video, participating in the forefront of the Yatra with the alleged sound recording in the background. That these do not make out any offence that would become punishable under Section 63 of the Copyright Act.
  3. Even if it is construed to be true, it will be hit by exceptions under Section 52 of the Copyright Act, as the same has been used for non-profit and non-commercial purpose in order to spread awareness of the Yatra which was only aimed at uniting the country.
  4. The Respondent has a civil remedy for infringement of copyright and a crime at the outset is not maintainable in terms of Section 55 of the Copyright Act.

Respondent’s contentions:

  • That the Petitioners are guilty of all the offences alleged, particularly, of the violation of copyright. That they are not a licensee, but an assignee under the provisions of the Copyright Act. Thus, they have equal rights to that of a copyright holder.
  • The Petitioners have altered the source code of the song, played it according to their whim, changed in its entirety and claimed to be the copyright holder of the recordings after having meddled with the source code and changed it. All of these would show blatant violation of copyright, which is an offence under Section 63 of the Copyright Act.
  • That the Petitioners must come out clean in an investigation or a trial. The stage to quash the proceedings has not yet arrived.

Court’s observations and decision:

After considering both parties’ arguments, the court rejected the present petition as being without any merit while making the following noteworthy observations:

  1. The Respondent has produced documents to demonstrate that they are the assignee of the copyright of the music for the film “KGF Chapter 2”. Thus, in terms of Section 18 of the Copyright Act, the Respondent has every right to complain infringement of the copyright that is assigned in their favour.
  2. Any exception claimed is always a matter of trial. Although, in certain circumstances, as Section 52 of the Copyright Act has several explanations and exceptions which can be taken note of or benefit of, it would become available only at a later point in time. In the case at hand, even the investigation is yet to commence. Also, the Petitioners has not pointed out as to which specific head of Section 52 of the Copyright Act would bring them out of the web of the crime.
  3. Section 55 of the Copyright Act deals with civil remedies for infringement of copyright, but it would be maintainable on a presumption that copyright has been infringed unless the contrary is proved. It is not the law that merely because a civil remedy exists on infringement of copyright, criminal case cannot be registered. On this point, the Court relied on the judgement rendered in the case of Mangalore New Sultan Beedi Works v. State of Karnataka and Others [W.P. No 10870 of 2023, decided on May 31, 2023], wherein it was held that the infringement of a copyright gives rise to a cause of action on which a civil proceeding like an Injunctive Suit can be structured. It also can give rise to a cause of action for the institution of a criminal proceeding. In the former, it is preventive, remedial, compensatory, or otherwise, whereas, in the latter, it is primarily punitive. Thus, the object, nature and outcome of these proceedings are not the same. That is how the statutory scheme is enacted by Parliament. Merely because a civil dispute is being fought between the parties, the criminal proceedings cannot be halted, per se, on that ground.
  4. If the Petitioners had not meddled with the source code, they could not have tampered with the audio and replaced it with their own audio. Tampering with the source code without permission and freely playing the audio would undoubtedly amount to infringement of copyright of the Respondent.
  5. The Petitioners appears to have taken the copyright of the Respondent for granted and have tinkered and meddled with it. Thus, prima facie, all these factors become a matter of evidence which have to be thrashed out by an investigation in the least.

Concluding remarks:

This decision clarifies and expands the legal avenues available to the right holders when dealing with infringement issues. It confirms the right of copyright owners to pursue both civil and criminal proceedings concurrently enabling them to seek comprehensive remedies for copyright violations.

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