Zanjeer decision of Bombay High Court

The decision of Justice Kanthawala in the much awaited Zanjeer case is long in text but to some extent falls short on expectations of those who are more interested in the core issues related to copyright and the various nuances surrounding the issues that have surfaced post amendments in June last year. This is so because, though the order rejecting the interim application for mandatory injunction, makes a good reading as to the pleading of some of leading counsels of Bombay High Court, it refrains from deciding on the core issue of copyright ownerrship itself. But what is more dissappointing is the fact that Justice Kanthawala after recording all the arguments, decided to reject injunction application because the authors of the script of the film Zanjeer, Salim and Javed, delayed action inspite of knowledge about the remake of the film. The brief facts of the case are that Salim Khan and Javed Akhtar alleged infringement of their copyright in the script of the film which they claimed they wrote and sold to Dharmendra and then were commissioned to write it by Prakash Mehra, the producer of the film in 1973. There claim was they wrote the script only for the purpose of incorporation in the film and nothing beyond, therefore producer’s rights were restricted only to the film made in the year 1973 and did not include the underlying “literary work” and therefore the successors to the producer's estate had no right to allow remake of the same film. Plaintiffs had quantified their claims in monetary terms at Rs. 6 crores, the court found that they were not entitled to a mandatory injunction because even if the Court would have come to the conclusion that the Plaintiffs are the owners of the copyright since the Plaintiffs’ claim falls within the provisions of Section 38 (3) (c) and not under Section 38 (3) (b) of the Specific Relief Act,1963, their claims would be satisfied by payment of monetary compensation and not by an injunction. This basically limited the scope of appeal itself because only point to be argued in appeal is 38 (3) (c) and (b) read with Sec. 10 and 14 of Specific Relief Act, 1963. The most important aspect of the entire are a few which are as follows: a) Whether the amendments will have retrospective or prospective effect on the copyright works prior to the amendments and their exploitation after the amendments? That is basically whether the authors of literary and musical works will get benefit of the amendment? b) Whether authors to be treated differently under Sec. 13 (4) and Sec. 17 (b) of the Copyright Act? Will this mean that given the added proviso to Sec. 17, there will not be any commissioning of literary and musical works and it will be only assignment? c) This also raises the question of taxability of these transactions if they are not service anymore and only assingment? Producers should not be paying the Service Tax and should only be paying VAT on the works assigned. This would atleast lessen the tax burden by 7% as Service Tax is 12.36% and VAT is 5% in Maharashtra. But these questions remain unanswered by Justice Kanthawala and we are left high and dry after reading a very interesting Court order taking note of all the arguments and will have to wait for the Courts to opine on these issues affecting the media and entertainment industry since the copyright amendments.