It is a common perception that plagiarism amounts to copyright infringement, particularly when it relates to musical and literary works. This could not be further from the truth. While certain elements of plagiarism are similar to copyright infringement, there is a marked distinction between the two.
Associate
Lall Lahiri & Salhotra
Plagiarism refers to lifting someone else’s work without credit to the source and thereby creating the misleading impression that the work is original. Copyright infringement is the unauthorized or prohibited use of copyright-protected work, which results in infringement of the exclusive rights that the copyright owner holds in the work.
For plagiarism, it is not necessary that the work be copyright protected – even a work in the public domain may be plagiarized if there is a high degree of similarity between the new work and the original work. Plagiarism is primarily a moral infringement and an issue of ethical responsibility of the person claiming originality in someone else’s work.
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Legal protection
In contrast, copyright infringement is a breach of specific rights granted in a work to an author by law. For example, the Copyright Act in section 51 states that copyright in a work is infringed “when any person, without licence granted by the owner of the copyright or the Registrar of Copyrights … does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright”.
To establish infringement, it is essential that rights granted by section 14 of the act are infringed. These rights relate to reproduction of the work, making copies, storing, performing, communicating to the public, making translations and adapting the work.
Cases of literary and musical works being “ripped off” are often brought to public notice. The Indian film industry frequently uses music picked up from or inspired by foreign musical works, and few products of such “inspirations” are brought before the courts. As a result, for decades such music has been used without due credit being given to the original authors. In literary circles, instances of plagiarism are scandalous and often the talk of the town, but rarely the subject of litigation.
Awareness growing
Recently however, the tide seems to be turning. As a result of greater commercial value being associated with intellectual property rights and also increasing awareness of the need and advantages of protecting original work, copyright protection initiatives have increased. More musical productions acquire rights and rightfully acknowledge other musicians’ contributions, and cases of copyright infringement in music have been brought before the courts.
The case of Loreena McKinnit v Deepak Dev in Delhi High Court is one example. In this case, the plaintiff alleged infringement of her musical work by an Indian composer who had “lifted” or “been inspired by” two of her compositions and turned them into a Malayalam movie song.
The court in this case granted relief to the plaintiff by restraining the Indian composer from releasing any further versions of the song, adapting it or using it in films, sound recordings, ring tones, etc. The court, however, stated that for music already released, no restraint could be obtained.
This case is a welcome development and an indication to other composers that while such rip-offs have been allowed in the past, there is precedent to restrain them in future through legal action.
Moral rights
In addition to alleging copyright infringement, the plaintiff in this case also alleged the breach of moral rights in her musical works under section 57 of the Copyright Act. This section states that independent of the author’s copyright and even after the assignment either wholly or partially of the copyright, the author of a work has the right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification, etc., prejudicial to their honour or reputation. The act calls these “author’s special rights”.
While copyright issues involving the granting of rights for commercial exploitation of musical works are frequently litigated, there is almost no case law in India on protection of the creative aspects of musical works.
The situation is different in other countries, where more rights in musical works have been litigated and protected. The 1971 case of George Harrison v Bright Music Corp and the 1991 case of Michael Bolton v The Isley Brothers are early examples. More recently, lawsuits have alleged that the group Black Eyed Peas lifted the music of other musicians.
Despite the legal remedies available, few authors of musical and literary works resort to litigation to protect their property, and Indian consumers risk showering accolades on copyright infringers and plagiarists.
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Zeeshan Ali Khan is an associate on the litigation team at Lall Lahiri & Salhotra, which is an IP boutique based in Gurgaon.
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