Pirates of Bollywood – A Review by Professor CS Patil, Director, KSLU Law School (Published in Journal of Entertainment and Sports Law)

Review of Pirates of Bollywood – Published in KSLU Journal of Entertainment and Sports Law, Launch Edition, 2015

BOOK REVIEW: PIRATES OF BOLLYWOOD
BY DR. KALYAN C. KANKANALA

Prof. Chidananda Reddy S. Patil

Pirates of Bollywood, a novel knitted around the problems of piracy of movies and music, contains a good exposition of copyright law and its fine interpretations in a fictional setting. The contest is in the Bombay High Court, between Alliance Against Copyright Piracy- ACP and Copyleft Foundation, with Vachaspati and Arjun as their respective counsels. While Vachaspati is an unquestioned and established king of the Bar, Arjun is an emerging prince in the field of intellectual property law after his Berminger case- a vicious patent battle he successfully fought (in the novel Road Humps and Sidewalks, by the same author). The matter is argued before Justice Neeti Somaiya, the youngest and technologically adept judge, the Tech lady, who is in total control of the court process.

Before culminating in the court scene with concentrated legal contentions, the reader is introduced to the importance and purpose of protecting copyright through the address of Ganesh Shan, the King of Bollywood, at “Frames,” a media and entertainment conclave, as extracted below:

“Creativity is a virtue, and creators, virtuous. All of humanity is happy to enjoy the fruits of creativity, but how many spare a thought for its creators, leave alone rewarding them? We Indians are at the foremost of creativity, and unfortunately, of its destruction as well. Unless we respect writers, musicians, artists, performers, directors, and all other creators, protect their rights, stand by them and nurture them, the creative essence of life that gives us joy, that unites us, and that makes life worth living, will soon perish.”

“Reverence to copyrights, my friends, is the key. Respecting copyrights equals respecting creators. Copyrights encourage authors to create works of literature and art, and by doing so benefits mankind tremendously. By copyrighting one’s work, an author protects his interests in the work from misuse, and the least the society can do is safeguard those interests, for its own good, if not for the author’s good. But, is the society doing that? Are we truly doing what we are supposed to do to protect our authors and their work?”

Applying the ‘bad man’s standards, an ambitious bad guy, Lamba, views the loss involved due to piracy and reflects in terms of possible remedies in the form of temporary orders such as injunctions and John Doe orders, and ex parte decisions of permanent injunctions and damages, and goes on to explain John Doe orders as orders given against unknown, large-scale, and prospective pirates.

A lucid introduction to the copyleft movement is provided through Bob Raja, the President of Copyleft Foundation- an organization, formed to fight the evils of the copyright system. Starting from Richard Stallman’s initiative, the views of copyleft protagonists in terms of making creative works freely available to everyone in society; the measures in terms of formulating legal instruments to facilitate sharing of creative works; encouraging contribution to increase pool of creative works which are free from copyright, for public enjoyment, etc. are brought out. The results in the form of free software, Open Source Software, Creative Commons, Open Source Biotech and Drug Research, and many more initiatives that have emerged from Copyleft philosophy are catalogued. It is made out that today’s android phones, Linux operating system, Open Office, millions of photographs, sequence of human genome, and medicines for some orphan diseases, owe their existence to the copyleft movement.

The court proceedings are enthralling. Curiosity of the reader is maintained through a pious environment with the imposing presence of Justice Somaiya. The technique of reframing is employed through Justice Somaiya to make the facts and issues involved in the case clear to the reader as under:

“A quick look at the facts- students at the IITB developed a file sharing software for enabling fast and efficient sharing of information of any kind. As I understand, the software allows sharing of a file broken into pieces, by taking pieces of puzzle from different people, and unifying it into a single file. In other words, multiple people contribute parts to a person downloading the entire file. The software allows personal computers to act as data repositories, doing away with central indexing, and allows users to encrypt files for transfer. Simply put, it combines facilities offered by bit torrent websites, like Pirate Bay, peer-to-peer file sharing networks, like the erstwhile Grokster, and, security software, while at the same time doing away with a central website to facilitate sharing. Are we on the same page so far?”

The submissions of Vachaspati, the counsel for ACP, delve upon the objects of copyright, of promoting creative arts by granting rights to authors, artistes, producers, and performers, among others and the gamut of protection available. From books, paintings, drama, music, movies, performances, broadcasts, recordings, lectures, to photographs. When the counsel tries to paint a picture that the law is for the benefit of creators and public, the paradoxical situation the same law has created is brought out succinctly through the observations of the judge when she observed:

“I do not agree with you, counsel. If copyright law actually rewards creators, why was there such a hue and cry from writers and artistes alleging that producers and music companies are taking away the money they deserved, which finally led to an amendment of the law in 2012? The truth of the matter is that authors do not get anything from the success of their creative works. It is the copyright owners, the publishers, the production houses, the record labels, the large software companies and other business houses that reap benefits from works of creators. Several studies have shown that authors get less than two percent of the total revenue generated from their work. Tell me counsel, how much of the hundreds of crores made from movies like Krrish, Dhoom, and Dabangg, or the revenues made by companies like Microsoft, IBM and Infosys has found its way into the pockets of its creators? It is the producers and the stars, your clients, who make all the money. Did you say benefit to society? I will pass it as a figment of your imagination, counsel.”

Given the presence of alert judge, the counsel for ACP, makes his submissions in a becoming manner highlighting how by downloading, copying and sharing music, films, books, software and other works on the internet, a person infringes the copyright owner’s rights and may give rise to both civil and criminal liability. He refers to how the Maharashtra and Karnataka states have made provisions to consider repeat infringers as goondas, and can be detained for about a year without being produced before court. These laws are perceived by the police personnel as an overkill reflecting the disproportionate response of the government to the problem and its vulnerability to pressure groups.

The arguments of Arjun, the counsel for Copyleft Foundation are illuminating; they are equally highlighting the lawyering skills. He neither gives in nor gives up and answers every issue point by point. Touching upon the 1710 Statute of Anne, covering the scope of copyright protection and the latest 2012 amendment to the Copyright Act in India, he paints a deplorable plight of creators. He elucidates his point using statistics to the effect that an author of a novel gets less than 10% of the revenue made from his book, a painter gets less than 7% of the sale value of his painting and a singer gets less than 5% of money made from his recordings. He makes out that since its inception; the copyright law has been a tool in the hands of businesses, and not an instrument to further the interests of creators or authors; that the copyright law has always favoured the ones with the economic muscle and not the poor authors.

The gist of the Copyright (Amendment) Act, 2012 is brought out in the submissions of Arjun as under:

“… even the 2012 Amendment to the Copyright Act in India only requires sharing of revenues with respect to literary and musical works, which form part of films. So, if an author is lucky enough to get a film contract, he will get an opportunity to claim royalty from his work. Else, he is at the mercy of the content owners, publishers and companies who hold copyrights to his work. These copyright owners exploit the creativity of creators to their commercial benefit.”

The lack of equity in copyright law and the justification for copyleft movement are succinctly brought out in his following is following submissions:

“… though copyright law was meant for creators, it always furthered the interests of big corporations and businesses. It is to fight their copyright atrocities that the open source and Creative Commons movements, which promote free, copying and sharing of creative work, evolved. They have been extremely successful. … today, every company uses open source software, and all of us enjoy the benefits of Creative Commons works on Flickr, You Tube, Facebook, and so on.”

“… is the most efficient and effective tool available for information exchange, and the best part is that it is an open source software, available for free use, and development. Not only can any person in the general public install and take advantage… anyone seeking to improve it has access to the software’s full source code under an open source license, the General Public Licence.”

Arjun argues that the fact that a novel technology can be used to download or share infringing content cannot be the basis for taking it down. To which the Justice responds by reminding him that the issue in the case is about copyright infringement and not about technological innovation and the primary purpose of technology should not be to facilitate copyright infringement through sharing and exchange or pirated movies and music. In response comes the crux of his submissions bringing out a subtle point that the possibility of abuse of technology for illegal purposes cannot be a ground to prohibit that technology; and that as long as the company has no knowledge and control over the content that is being exchanged, it cannot be held liable. Here he distinguishes the impugned case with precedent cases thus:

“…is a platform that facilitates sharing; it could be legally used to share any kind of data. Secondly, it may be possible to use many new technologies for wrongful purposes and that possibility… cannot be the basis for prohibiting a technology, or impeding progress. Doing that would be akin to stopping sale of photocopy machines, video recorders, iPods, or other new technologies capable of copying content, just because there is a possibility that they might be used to make illegal copies…. Courts across the world have laid down in unambiguous terms that any technology that has legal uses should not be prevented merely because it can be used as a tool for copying or sharing.”

“… Any person with average intelligence would understand from the way Share is structured that Copyleft Foundation has neither knowledge, nor control over the files being exchanged by users. Unlike Napster, Grockster, and Mega Upload, which have been shut down, there is no central index of files, no support or help is offered, and there is no active involvement in file transfer on Share. My client is completely hands off, and is in no way inducing infringement, and there is nothing illegal about its activities as claimed by the counterpart.”

The appreciation for his performance comes from his opponent Shan when he thinks that the young man could see the world better than most people around him and wishes that he had more time on hand to sit and watch the able young man.

The sub story of intellectual property raids introduces the reader to how the process of law may be abused through the following description:

“The primary objective of an intellectual property raid is to confiscate infringing material, and arrest the perpetrators. Contrary to their intended purpose, the raids were often used very effectively by the resourceful and the literate, with deep pockets to intimidate their business adversaries, irrespective of the strength of their case. Among others, disgruntled former employees starting their own competing business, annoyed patent or design- owners looking to stop their competitor from copying their products, and theft of trade secrets were some of the reasons for initiation of most raids. While registration of a copyright, parent or design, was normally considered necessary for organising a raid, it was not always compulsory. The tricky part of the exercise was not the raid itself; it was collecting incriminating evidence and determining that there was copying.”

A glimpse of the human face police authorities is brought out well in different circumstances. Hellen, the super cop, questions herself at the arrest of a roadside CD vendor for having taken out her gun to the effect, “This man was not a terrorist, not a murderer and not even a thief; he was just a small DVD vendor trying to make a living.” She gets terribly upset over the arrest she has successfully executed and finds it difficult to accept that selling pirated movies was as wrong as she believed. After the first kill at her hands she finds it difficult to swallow the fact that she just took a life. A volcano of alien emotions erupts in her mind and she cannot hold tears. The Inspector Atre’s compassionate expression about abilities and dedication of his martyred colleagues and his heart going out for young children left behind.

The author has appropriately used the concept of “Prisoners Dilemma” through an offer by Hellen to Bob, “You know by now that we can save your life, and may even find a safe harbour. But for us to help you, you must cooperate. You will get only one chance. If you do not wish to take it, we will make the offer to your friend Mane, and of course, leave you here with minimal and compromised security.” A glimpse of discipline among the organized criminal gangs and the severe consequences for any deviations is created in the novel which sets a perfect environment to materialize the so called ‘Piracy rights’- the exclusive rights to deal with infringing copies of music, and movies. In other words, these are rights given by the owner of films, and /or music, to a person, allowing them to sell and deal with pirated versions of their content.

The characters are well thought of and are imbued with apt abilities like Hellen Joseph, the ACP with ability to thrive under pressure; Shivaji Savarkar, the loveable Commissioner of Police, ever ready for operations involving actions; the arrogant super star Raj Khanna; the eloquent King of Bollywood, Ganesh Shan; Ilahi, the small pawn of 18 years shouldering the onerous responsibility of earning bread for family, pushed into vending pirated CDs on streets; the ever caring Shreya and the affectionate pet Neo and the friend in need Jose; Bob, the man who transitioned from representing copyright owners to working for pirates, and assumed top position in the Copyleft Foundation, and others. The characters of imposing legal eagle Vinod Vachaspati and a young, visually challenged emerging IPR attorney Arjun Mamidi add curiosity to the contest between them and lace it with an element of thrill.

While the novel Pirates of Bollywood is on entertainment law, it can pave way for teaching law through entertainment. Along with Road Humps and Side Walks and the forthcoming The Dravidian, I expect the author to pour out legal thrillers which will make comprehension of this intricate and complex area of intellectual property easy both for non-specialists and common men. If that happens, one more method of teaching will be added to the kitty of law teachers “teaching through novels/ legal thrillers.”

There is suspense, violence, heroism, love, social commitment, humanism, poverty, law, legal analysis, arguments and much more in this novel which makes it a pleasurable reading. The novel has professional value which recommends itself to be read by lawmen (law teachers, law students and advocates) and entertainment value which recommends itself to be read by all.

DR. CHIDANANDA REDDY S.PATIL

Dr. Chidananda Reddy S.Patil, graduated from University of Mysore, Mysore in 1983. He moved over to Dharwad to pursue his studies in Law at the University College of Law. He completed his LL.B. in 1986. He obtained Master’s Degree in Law from University of Mysore, Mysore in 1988, specialising in Constitutional Law. He secured first class and first rank at LL.M. for which he was awarded two gold medals and a cash award by the Mysore University. In addition, the Government of Karnataka has awarded him a cash prize for securing first rank in LL.M. He holds a Doctorate in Law from the Karnatak University, Dharwad.

Prof. C.S.Patil, has taught law at J.S.S.Law College, Mysore, H.A.Law College, Dharwad, K.L.E.Society’s Law College, Bangalore and University College of Law, Dharwad. On 17th July 2013 he joined Karnataka State Law University, Hubli as a Professor of Law. Prof. Patil has published one book, edited two books and more than fifty articles in various law journals and magazines. He is one of the experts to submit a research paper to the Committee on Reforms of Criminal Justice System of which Hon’ble Dr.Justice V.S.Malimath was the chairman. He has drafted many legislations for the Government of Karnataka including the Karnataka State Human Rights Courts Rules, 2006.

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