Image from here.
The Division Bench (DB) of Delhi HC has given us a well-reasoned and hard hitting order on the interplay of copyright law and Indian classical music. In the highly publicized copyright battle between Ustaad Faiyas Wasifuddin Dagar and AR Rahman, the DB has reversed the single bench’s (SB) ruling that had held AR Rahman’s song ‘Veera Raja Veera’ from Ponniyin Selvan 2 to be prima facie infringing Ustaad Dagar’s (who was the plaintiff) copyright in the classical composition titled ‘Shiva Stuti’. The DB’s order, penned by Justices Om Prakash Shukla and Hari Shankar (with the former authoring the major part of the verdict), is a fascinating exploration of how questions of authorship, copyrightability and infringement need greater caution in handling in the realm of Indian classical music.
The DB held that the plaintiff was unable to prove that the junior Dagar brothers (the Plaintiff’s father and uncle, the Late Ustad Nasir Faiyazuddin Dagar and Late Ustad Nasir Zahiruddin Dagar) were the joint authors of the suit composition. At best, the available evidentiary materials demonstrated that the brothers had performed the composition and therefore had performers’ rights under the Copyright Act. However, a logical leap from performance to presumption of authorship was impermissible under law. And to put a burden on the defendant to disprove the plaintiff’s arguments on authorship was an added error on the SB’s part, it being in direct contravention of principles governing the burden of proof. On the originality aspect, the SB had similarly missed out on carrying out an extensive analysis of the Dagar brothers’ independent skill and expression that contributed to the creation of the suit composition.
Varsha has nicely explained the SB’s decision in her post. At the end of this post, the readers can find another brief summary of the facts of that case. This post examines the route DB took in quashing the SB’s order and its reasoning.
The DB’s Hard Hitting Rebuttal:
The initial paragraphs of the DB’s analysis (from paras 72 to 85) are worth mentioning for the clarity they evince in recognizing the difficult relationship between modern copyright doctrine and traditional Indian art forms (Indian classical music here). Guru Shishya parampara, the DB notes, forms the heart of Indian classical music tradition and constitutes the method of evolution and transmission of musical compositions (para 72). This has two implications: first, the musical works are often not written down in notations, and second, it often becomes tough to attribute authorship to any single artist since the classical tradition is a manifestation of creativity exercised in collectivity.
This unique nature of the musical tradition runs counter to the individualistic spirit that informs copyright principles; the law attempts to find the one identifiable creator and also excavate fixed forms of protection for works. Remarkably, the DB clarifies its intention to limit itself to addressing the issues specific to the case and restricts itself to the two issues of authorship and originality (para 73) (though it doesn’t go into the latter question on facts). This was because of the possible implications of the case for the entire Hindustani classical music industry. For the suit composition as well, the DB recognizes that the process of determination of authorship is a challenging task since it is tied to its first performance and oral tradition rather than formal written notation.
What the Court had before it were the Dagar brothers’ performances of the work, and no easily available material showing a particular composer of the composition. For the DB, this was not sufficient to recognize them as the authors of the musical work. In essence, the DB found the earlier published CDs and contractual agreements n as insufficient to support the case for authorship. In para 95, the DB observes that the documentation nowhere mentioned the Dagar brothers as the composers of the work. At best, the proof of them having performed the composition and then executed licensing agreements with music labels concretized their rights as performers of the work, but not as the authors (para 98).
In articulating this, the DB clarifies a point of law integral to the copyright regime: the performer and the author occupy different positions in the Copyright Act and are vested with a distinct set of rights. It is unwarranted to presume the performer to be author of a work without sufficient evidence to back this leap. Additionally, a reliance on the fixation of and performance of musical work as a prime facie determinant for authorship is an indirect introduction of fixation requirement into the legal domain, which goes against the legislative intention (paras 101-102). On burden of proof, the DB clarified that the defendant cannot be burdened to provide evidence against the plaintiff’s arguments on authorship. It is the plaintiff’s burden to make its prima facie case first, and not the other side’s. In fact, Justice Hari Shankar in his concurring opinion highlights the absence of any jacket, inlay card, or literature which referred to the Dagar brothers as the composers of the Shiva Stuti composition. Even the old diary relied upon by the plaintiff only contained handwritten lyrics of the composition without any indication of who the composer of the composition was. In his opinion, such a glaring absence is unimaginable. He also notes that the counsel for Ustaad Dagar had no answer for this.
On plaintiff’s invocation of section 55(2) of the Copyright Act which provides for presumption of authorship in certain situations, the DB held that the provision needs a minimum threshold satisfaction of demonstrating that the person is named as a purported author on the copies of the work. Neither the CD inlays nor the contractual documents indicated them as composers or purported authors of the suit composition (paras 110-111). At best, their role as performers was reflected. What also weakened the Dagar brothers’ claim of authorship was the fact that compositions identical to the suit composition had been performed by other branches of the Dagar family without any attribution of exclusive authorship to the brothers (para 117).
On the aspect of originality, the DB noted a similar absence of positive evidence to demonstrate the dagar brother’s independent skill and expression in the claimed work (para 128). Moreover, the SB also failed to undertake an exclusion of the common elements (that form a part of the Raga system and its grammar) and then assess the originality. Copyright would then subsist only in the unique pattern which is reflective of the composer’s independent creativity and skill. Originality and authorship are inextricably intertwined facets and since the latter was not established here, the claim on the former collapsed as well. The DB did not have to go any deeper than this.
Concluding Thoughts:
Frankly, I do not have much to add by way of critique to the DB’s well reasoned and detailed opinion.. Justice OP Shukla’s opinion both corrects the impugned decision as well as articulates something deeper about the shared space that copyright law and classical music occupy. The fault was a pretty simple one: the performer is not to be conflated with the author; the chances of this misstep are higher in an arena like classical music and other traditional art forms. Well, since the SB’s reasoning crumbled at this step itself, the DB didn’t have to enter the tricker terrain of assessment of originality on facts as well as the daunting task of infringement analysis. On its explication of the law and general principles, the order’s importance reveals itself when you try to hear the music [maybe not as a lay person, but with a more discerning ear:) ]. In para 72, Justice Shukla highlighted the challenging task of applying modern copyright doctrine to cases in the Indian classical music arena, owing to crucial differences in the underlying logic of the two paradigms. In its clear enunciation of the legal regimes governing performers’ and authors’ rights, the requirements of authorship and originality, the salience of burden of proof principles, and the careful contextualization of these legal dimensions to classical music terrain, the opinion hits the bullseye. To further innovation as well as cultural preservation, it is imperative to define both the expanse as well as the limitations of the copyright doctrine’s reach. One unwarranted error in the application of basic principles and you may end up monopolizing the public domain and stifle creativity. Essentially, copyright law effectuates its aims both through its application as well as in the ascertainment of the space it chooses to cede. And isn’t music also partially about knowing the importance of the silences in between the notes?
Addendum: Brief Facts and Details of the SB Order
The allegation in the case was that the song ‘Veera Raja Veera’ from Ponniyin Selvan 2, composed by AR Rahman, infringed the copyright of the plaintiff Ustad Faiyaz Wasifuddin Dagar’s musical composition ‘Shiva Stuti’. The plaintiff claimed that the Junior Dagar Brothers – the Plaintiff’s father and uncle, the Late Ustad Nasir Faiyazuddin Dagar and Late Ustad Nasir Zahiruddin Dagar, had written and composed the song in the 1970s and were therefore the first owners in the suit composition. The defendants’ song allegedly incorporated the protectable elements (the main part or soul) of Shiva Stuti without authorization. The single judge bench (SB) ruled in Ustad Dagar’s favour; In short, the SB found the Suit Composition to be an original copyrightable work whose authorship was attributed to the Dagar brothers, thereby satisfying the prerequisites of authorship and originality. On infringement, the SB found substantial similarity between the works by applying the test of a ‘lay listener’; it also referred to the infringement test’s articulation in Ram Sampath v. Rajesh Roshan: “whether the soul of the composition is the determinative test” (para 192 SB).And finally, the moral right to paternity of Junior Dagar Brothers was also recognized.
On the issue of authorship, the plaintiff claimed that the suit composition was the product of joint authorship of the junior Dagar brothers. The SB accepted the argument and referred to key pieces of evidence. First, the SB noted the plaintiff’s reliance on an old diary that contained the lyrics of the suit composition, apparently in the handwriting of one of the Dagar brothers. Justice Harishankar’s opinion in the DB ruling however clarifies that SB didn’t rely on this diary as a ground for authorship. More important then are the two remaining materials. Second, the suit composition was performed in Amsterdam as part of Holland Film Festival on 22nd June 1978. The recording of this rendition was released as part of an album in 1996 after the brothers’ death. The SB also referred to the cover photo of the album CD, and the inlay card that mentioned ‘Dhrupada in Sultala’ and also laid out the composition. Additionally, the SB mentioned another CD from a 2007 Paris Concert that has a similar inlay card. Third, the SB noted certain contractual agreements with music labels that entailed assignment of rights to sell recordings of their performances, which also included the suit composition. All of this documented evidence is interpreted by the SB as a prima facie proof of the junior Dagar brother’s authorship of the suit composition. As per the SB, the defendants failed to adduce evidence to show that the brothers were not the authors; they could not produce any third party’s rendition of the Shiva stuti composition prior to the 1970s
Thanks to Swaraj Sir for his comments and help!