Demystifying the Law on Copyright in Historical Facts: Analysis of the Copyright Infringement Case against Kangana Ranaut

By Ayush Katyayana

(Student of National Law University, Delhi)

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Background

From Mughal-E-Azam to Padmaavat, the Indian film industry has seen many films based on historical facts and events- some that attempted to portray them as they are believed to have occurred and others that sought to give them their own rendition and twist. Recently however, a case being filed against actress Kangana Ranaut for alleged breach of copyright over historical facts gives rise to an important question of law with respect to whether such historical facts are protected by copyright and hence prohibited from being reproduced in such films. In this case[i], the author Ashish Kaul of a book titled ‘Didda: The Warrior Queen of Kashmir’ filed an FIR against the actress and her associates for cheating[ii], breach of trust[iii] and infringing the alleged exclusive copyright[iv] over the history and story of Didda, the princess of Lohar and Queen of Kashmir which the former claims to have ownership of. The author claims the breach as having occurred by way of the actress having annunced via Twitter her film Manikarnika Returns which is to be based on the story of Queen Didda, and having allegedly used parts of the his story herein after receiving an email from him containing the storyline of his book[v]. The actress in turn approached the Bombay High Court seeking quashing of this FIR based on the argument that historical work and facts cannot be copyrighted[vi], and that in any case, the actress had only put out a tweet announcing her film and so there was no actual comparative work published by her that could have infringed such a copyright if there indeed was one[vii]. While this matter is presently sub-judice and a subject of not just this case but also a separate case to do with the actress’ passport renewal[viii] in addition to an application filed by the plaintiff of the present case for initiation of contempt proceedings against her for allegedly lying under oath in the passport case[ix], it does afford a need to visit the existing law on copyright in such historical facts and the nuances of the same if such a copyright does exist, which is what this article attempts to analyse hereunder.

Indian Law on the Subject

Section 13 of the Copyright Act, 1957 (Works in which copyright subsists) lays down that while copyright shall subsist throughout India in both literary works and cinematograph films[x], this shall not be the case if a substantial part of a cinematograph film is an infringement of copyright in another work[xi] and that a copyright in a film does not affect the copyright in another work with reference to which a substantial part of such a film is made[xii]. Hence the question to be answered is that of whether or not there exists a copyright over history and facts therein that period films may be in breach of, and if so, what is the scope and extent of the copyright with respect to, inter alia, the exact kind of works it protects and ownership of the same.

The most decisive authority on this question in India is the Supreme Court’s judgement in the case of R.G. Anand v. Delux Films[xiii] which held in no uncertain terms that there is no copyright in an idea, theme or historical or legendary facts, and that copyright in such cases is confined only to the expression, form, manner and arrangement of such ideas by the makers of a work. To illustrate the same, the Court cited the example of Shakespeare in how in spite of his plays being largely based on themes of mythology and legends, his expression of the same in each of his works is so fresh and different that each become an original piece in themselves. Having thus established that copyright does not protect historical facts and only the expression of the same, the Court held that in order to determine a breach of the latter, it is to be ascertained whether or not a work bears similarities with the substantial or fundamental aspects of expression in a copyrighted work[xiv]. Herein by relying on a slew of High Court decisions[xv] the Court mentioned a number of tests for the same including that of the effect and perception of similarity produced on one’s mind by two similar works[xvi], the test of resemblance[xvii], and the requirement of colourable imitation[xviii] of a copyrightable work. Such a position of not ideas and facts but their expression being copyrightable was also held in the Bombay High Court case of N.T. Raghunathan v. All India Reporter Ltd.[xix] and subsequently in the case of Eastern Book Company v. D.B. Modak[xx] before the Supreme Court. The latter case additionally held that copyright over expression of ideas exists in such works that are the result of their maker’s own skill, labour, capital and creativity in being a derivative of an original idea/work by virtue of selection, arrangement and coordination of such pre-existing data that give the new work an altogether different form and character of its own. The number of Supreme Court decisions on this aspect of the law is still very limited and in fact there existed none until R.G. Anand[xxi], as a result of which the said case also relied on a number of judicial decisions from foreign jurisdictions on this matter, some of which are discussed in the next section.

Comparative Law of Other Jurisdictions on the Subject

The case of R.G. Anand[xxii]placed reliance on certain principles upheld in foreign cases such as the American case of Shipman v. R.K.O.[xxiii]and the U.K. case of Harnam Pictures N.V. v. Osborn[xxiv], that held that while an idea may not be subject to copyright, sequences of events are and the impression formed by an audience viewing two allegedly similar works and similarity in the same was a determining factor in establishing infringement of copyright. Furthermore, even Donoghue v. Allied Newspapers[xxv]held that there is no copyright in an idea or ideas until it is put down to a tangible form such as writing, upon which copyright exists only in the form and manner of language, picture or otherwise in which such information and ideas are conveyed. Similar views are also taken by reputed commentaries on this branch of law[xxvi].

Additionally, there are also two famous Canadian cases on this issue whose decisions are commonly referred to when dealing with this aspect of the law. The first being Maltz v. Witterick[xxvii] in which the Federal Court of Canada clearly held that “there is no copyright in historical facts, nor in real persons, dead or alive” and that facts are facts and nobody owns a copyright in them. The other was the recent case of Winkler v. Hendley[xxviii], in which the Federal Court struck down the plaintiff’s claim of copyright over certain facts published by them as true historical account for nearly 70 years which was based on the ground that the facts so published were not actually true. The ratio of the Court’s decision in this case was that no copyright exists in works claimed and marketed as being historically factual by an author even if such facts were in reality not objectively true. This means that the Court need not go into the actual truthfulness of such facts as an author’s mere plausible assertion of the same is enough to deny copyright protection to such works and the author cannot then disprove the veracity of their own historical account to claim copyright in it. Such a position becomes especially relevant in light of the fact that history and historical facts are on many occasions unclear and disputed with there being different versions, beliefs and understandings around them, and hence even a unique version or hypothesis of the same in the face of other varying interpretations if presented as being factual would not enjoy copyright protection.

These principles can be easily understood by applying them to the popular historical legend of the court dancer Anarkali in Mughal Emperor Jahangir’s court and the former’s illicit affair with the latter that ultimately resulted in her immurement by Emperor Akbar. This has been mentioned as a factual account in the journal and writings of British travelers William Flinch[xxix] and Edward Terry[xxx] who visited Lahore during that time meaning that there exists no copyright over this historical legend, even though the veracity of the same is still doubtful and subsequent scholarly claims suggest that Anarkali may have in fact never existed[xxxi]. Thus, the portrayal of this legend in the 1960 Bollywood blockbuster Mughal-E-Azam did not infringe copyright over the legend or facts therein and neither did it result in the makers and owners of the film owning the same themselves. The proprietors of the film did however (for a period of sixty years ending 2020[xxxii]) own a copyright in the manner of expression and style in which the legend was depicted in the movie, including the original rendition of the entombment of Anarkali as shown in the film. 

Finally, there also exists the principle of parallel independent creation[xxxiii] by way of which same or similar expressions of the same facts and ideas if generated independently and without being influenced by the other would not be an infringement of copyright and would be eligible for separate copyrights of their own as applicable. In such cases, the question is not that of whether one could have gone through the same source as used by the other, but whether they actually went through such a source in the course of their independent research as opposed to making unfair use of the other’s work[xxxiv]. Even as per the American law, one can use and copy the facts present in the public domain which are contained in but not original to another copyrighted work for the purpose of their own work regardless of whether they are true or untrue, but one cannot unfairly appropriate another’s work because an author’s arrangement, expression, selection and compilation of facts can be protected by copyright if not the facts themselves[xxxv].

Conclusion

Going by all the authorities discussed above, the present position of the law on the question of copyright in historical facts (or facts and ideas in general for that matter) can hence be summarized as this: such historical facts themselves are not protected by copyright and their reproduction and usage is not prohibited by the same, but copyright lies in the expression, form, manner and arrangement of such facts in a work on account of them being the original work of the author/maker, with its ownership to be determined in accordance with Section 17 of the Copyright Act, 1957 (First owner of copyright). This is because from a principled point of view, historical facts must be freely available to all in the public domain for various purposes like discussion, interpretation, education, creative pursuits and so on simply because it would be as inequitable as it would be impractical to bar such beneficial usages of the same owing to copyright prohibitions. To understand the same in terms of how things would look like if copyright did subsist in such facts pertaining to history and real events, one need not look beyond the fact that there then would not be in existence, among other things, any textbooks and education on subjects like history. Furthermore, even the media that covers present and past events as we know it would not exist in such a scenario. Finally, from a purely logical perspective, facts being facts ranging from something as small as how a person spent the last evening to those of large-scale importance like how Adolf Hitler died are matters of truth and reality that nobody can really claim ownership of, even if they discovered them first by

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Footnotes

[i] Ashish Rattan Lal Kaul v. Kangana Ranaut & Ors., (2021) SW/9000026.

[ii] The Indian Penal Code, 1860, §415, No. 45, Acts of Parliament, 1860 (India).

[iii] The Indian Penal Code, 1860, §405, No. 45, Acts of Parliament, 1860 (India).

[iv] The Copyright Act, 1957, §51, No. 14, Acts of Parliament, 1957 (India).

[v] Press Trust of India, Author files cheating, copyright breach case against Kangana Ranaut, THE HINDU (Mar. 13, 2021, 10:06 AM), https://www.thehindu.com/news/cities/mumbai/cheating-copyright-breach-case-filed-against-kangana/article34058244.ece .

[vi] Sharmeen Hakim, Didda Copyright Row- “Historical Work And Historical Facts Can Never Be Copyrighted: Kangana Ranaut Moves Bombay HC To Quash FIR, LIVE LAW (Jun. 25, 2021, 10:03 PM), https://www.livelaw.in/news-updates/bombay-high-court-kangana-raut-didda-copyright-row-quash-fir-176291.

[vii] Sonam Saigal, Kangana Ranaut moves High Court in Didda copyright case, THE HINDU (Jun. 25, 2021, 11:04 PM) https://www.thehindu.com/news/cities/mumbai/kangana-ranaut-moves-high-court-in-didda-copyright-case/article34980173.ece.

[viii] Kangana Ranaut & Ors. V. The State of Maharashtra &Ors., MANU/MH/1958/2020.

[ix] Sharmeen Hakim, Kangana Ranaut’s Passport Renewal: Bombay High Court Refuses Javed Akhtar’s Intervention, LIVE LAW (Jul. 26, 2021, 4:33 PM), https://www.livelaw.in/news-updates/kangana-ranauts-passport-renewal-bombay-high-court-refuses-javed-akhtars-intervention-178165.

[x] The Copyright Act, 1957, §13(1), No. 14, Acts of Parliament, 1957 (India).

[xi] The Copyright Act, 1957, §13(3)(a), No. 14, Acts of Parliament, 1957 (India).

[xii] The Copyright Act, 1957, §13(4), No. 14, Acts of Parliament, 1957 (India).

[xiii] AIR 1978 SC 1613.

[xiv] Id. at para 46.

[xv] N.T. Raghunathan v. All India Reporter Ltd., AIR 1971 Bom 48; K.R. Venugopala Sarma v. Sangu Ganesan, 1972 Cri LJ 1098; Daily Calendar Supplying Bureau v. United Concern, 1964 SCC OnLine Mad 29; C. Cunniah and Co. v. Balraj & Co., AIR 1961 Mad 111; Mohendra Chandra Nath Ghosh v. Emperor, AIR 1928 Cal 359; S.K. Dutt v. Law Book Co., AIR 1954 All 570; Ramesh Cowdhary v. Kh. All Mohammad Nowsheri, AIR 1965 J&K 101; Mohini Mohan Singh v. Sita Nath Basak, AIR 1931 Cal 233.

[xvi] K.R. Venugopala Sarma, 1972 Cri LJ; Hanfstaengl v. Bains & Co., 1895 AC 20, 25.

[xvii] C. Cunniah and Co., AIR 1961.

[xviii] Ramesh Cowdhary, AIR 1965; Mohini Mohan Singh, AIR 1931.

[xix] AIR 1971.

[xx] (2008) 1 SCC 1.

[xxi] AIR 1978 SC 1613.

[xxii] Id.

[xxiii] 100 F 2d 553 (1808).

[xxiv] (1967) 1 WLR 723.

[xxv] (1937) 3 AII ER 503.

[xxvi] 9 LORD HAILSHAM, HALSBURY’S LAWS OF ENGLAND 4^TH EDN 831, 840 (Butterworths Law 1991).

[xxvii] 2016 FC 524.

[xxviii] 2021 FC 498.

[xxix] WILLIAM FLINCH, EARLY TRAVELS IN INDIA 1583 TO 1689 166 (Oxford University Press 1921).

[xxx] EDWARD TERRY, A VOYAGE TO EAST-INDIA 408 (W. Cater; S. Hayes; J. Wilkie; and E. Easton, at Salisbury 1655).

[xxxi] WIKIPEDIA.ORG, https://en.wikipedia.org/wiki/Anarkali#cite_note-5 (last visited Jul. 31, 2021).

[xxxii] Copyright Act, 1957, §26, No. 14, Acts of Parliament, 1957 (India).

[xxxiii] NEWMEDIARIGHTS.ORG, https://www.newmediarights.org/business_models/artist/ii_what_can_and_can%E2%80%99t_be_copyrighted (last visited Jul. 30, 2021).

[xxxiv] PUBLISHER’S EDITORIAL STAFF, AMERICAN JURISPRUDENCE (West 1962).

[xxxv] USLEGAL.COM, https://copyright.uslegal.com/facts-and-research-historical-events/ (last visited Jul. 31, 2021).