Who am I to you?

From the early 1980’s to the late 1990’s bollywood as a content production industry believed religiously in the application of “formulas” and “equations” for achieving success at the Box-Office. Rajshree Productions was one of the movie production houses which routinely used to practice this arithmetic. In the 1994 movie “Hum Aapke Hain Kaun” (Who am I to you?), it effectively employed the theme of, the complexity and the conservatism of the Indian joint family, adding to it, the aspirational depiction of the opulent north Indian wedding. However, this equation would have remained incomplete without a musical score to reel in the public. The musical score, sung by Lata Mageshkar had the intended effect with one of the songs from it, “Didi tera dewaar Deewana” (Sister your brother-in-law is crazy) becoming the vox populi (or song populi?) of North India.

With the mass success of the musical score came a mass wave of piracy. Most of the counterfeit product was alleged to originate from Super Cassettes Industries, (which was a major vendor of blank audio-tapes) under its brand T-Series. These practices were often alleged by business rivals against T-Series, when they sought to discredit the meteoric rise of its owner, the Late Gulshan Kumar from a mere fruit juice seller to a to a major manufacturer of blank media and retailer of music. Whatever be the case and the allegations, it was certain that T-Series as a company and as a brand was built by stretching the legalities of Copyright law in India. The alleged piracy caused in the “Hum Aapke Hain Kaun” gives rise to a dispute and the decision in Gramaphone Company v. Super Cassettes Industries, reported at 58 (1995) DLT 99, evidencing this claim.

The case illustrates the business model of T-Series as it existed in the inception of the company. T-Series, would take a successful commercial song, get it sung by the several lesser known signers on its retainer creating a “version recording” of the song and then sell it at a fraction of the price. It would achieve this by exploiting what rights owners called a glaring lacuna in the copyright act, which allowed such “version recordings” on the service of a notice on the rights holders and payment of a statutory compulsory licensing fee. Taking advantage of this provision, T-Series flooded the market with “version recordings”, with the sales of the version recording often exceeding the total sales of the rights holders themselves.

However, in the case of Gramaphone Company v. Super Cassetes Industries, T-Series exceeded this legal allowance. In its effort to increase sales of its version recording of the songs of “Hum Aapke Hain Kaun”, it not only created a “version recording” but also had the lead stars of the movie printed on its inlay card alongwith the title of the movie. Here trademark law stepped in for the rights holders where copyright law deserted them and they got an injunction enjoining t-series. The relevant holding of the case is as follows :

I propose to vary the injunction that was made exparte by saying that the defendants are not to use in the carton or inlay card or any other packaging material a design, colour scheme, layout and get up similar to that of the plaintiffs; not in the title to use the words “Hum Aapke Hain Kaun” simplicities or any combination of words including “Hum Aapke Hain Kaun” which would be calculated to lead to the belief that the defendants’ record was the plaintiff’s record.

The case marked a major turning point for T-Series which took the decision as a signal of the times to come. It realized it had become a big fish in the market and would no longer be able to deftly navigate the hazards in the copyright tank. T-Series began making its business models cleaner and more conventional by purchasing the copyrights in the sound recordings. By all accounts T-Series even after the untimely and tragic death of its founder Late Gulshan Kumar continued to remain successful and is a major and legitimate music label in India.

As has been said before with mass success came “mass piracy”. This time T-Series found that several online websites without license or authorization were making its copyrighted works available to the public. These included legitimate internet intermediaries, which provided services having “substantial non-infringing uses” such as youtube, myspace, ibibo. Beyond the mere issue of intermediary liability the question which is posed is a wider question on the cycles of innovation and copyright infringement. Do transformative business models and services naturally offend copyright law? Is it equitable for a company which to a large extent profited from violating copyright law to later allege a broad level of protection ?

The first question is answered quite simply, yes. Lessigs works, Free Culture and The Future of Ideas provides a ready reckoner of case studies and illustration of how a certain amount of “piracy” is always caused due to transformative business models and technologies. Even the second question is affirmatively answered by Lessig, as he demonstrates that early infringers often after obtaining commercial success, begin legitimate models of media production with concomitant costs. To protect these costs these early pirates argue for the same legal protections which they initially avoided and against the legal exemptions which they initially availed. He further states that granting an indulgence to the broad theories and interpretations for the protection of intellectual property rights may harm innovation in the marketplace of ideas.

The pattern of copyright litigation initiated by T-Series shows the tendency of startups on becoming accepted by mainstream institutional frameworks and gathering critical mass and finances to “innovate” legally and then succumbing to the same exertions of legal power which they circumvented initially. Another recent example is Apple’s IPhone patent litigation against HTC. It is a documented fact that Apple as a startup was “heavily inspired” from the revolutionary graphic user interface invented at Xerox Parc Labs. Now it seeks to block competing products to the IPhone through a broad interpretation of its patents.

The T-Series case study begs the question, who am I to you? A past “pirate”? A present major music label ? Or a future roadblock to innovation?

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