Originally scheduled for launch on May 12, 2003, the Rupees One Billion, mega-serial Karishma - The Miracle of Destiny ("Karishma") was telecast on Sahara Manoranjan on August 25, 2003 - after a 105 day delay.

Sahara Media Entertainment Ltd.'s ("Sahara") May 12 launch of Karishma was brought to an unexpected halt just four days before its telecast. On May 7, 2003, the Single Judge Bench ("SJB") of the Calcutta High Court (HC) issued an ex-parte injunction order prohibiting telecast of Karishma. This order was passed on an interim injunction application filed in a suit instituted by best selling romance novelist Barbara Taylor Bradford ("Bradford") alleging copyright infringement of her book 'A Woman of Substance' (© 1979). The allegation of copyright infringement was based on an alleged statement made by the producer of the film in an interview that Karishma is inspired by "A Woman of Substance".

Monday, May 12, 2003 witnessed a flurry of appeals. Sahara's application for vacation of the injunction order was refused by the SJB of the HC. On the same day on appeal by Sahara, the Division Bench ("DB") of the HC allowed the telecast of Karishma by reversing the order of the SJB. The DB was persuaded by the fact that at the time of obtaining May 7, 2003 order Bradford had suppressed the fact that she had instituted a suit at the Mumbai High Court on similar grounds, which was later withdrawn. "He who seeks equity must come with clean hands" is the principle, which governs the grant of equitable reliefs, interim injunction being one of them.

Bradford in response filed an appeal before the Vacation Bench of the Supreme Court (SC) late in the evening and which in an ex-parte order stayed the airing of Karishma. Sahara, however, telecasted Karishma that night, but Bradford did not initiate a contempt action against the television channel.

The following day the HC directed Sahara and Bradford to file affidavits by May 21, 2003 in the suit. The matter was posted for hearing on May 22, 2003. The SC stepped into the fray the very next day, staying all proceedings before the HC and restrained Sahara from airing Karishma till it decided the Special Leave Petition filed by Bradford challenging the order of the DB allowing telecast of Karishma.

On May 19, 2003 the SC remanded the matter back to the SJB of the HC after Sahara accepted setting aside of the May 12,2003 order of the DB that allowed the telecast of Karishma.

Another twist to the saga was added when on June 13, 2003 Sachin Bhaumick, who scripted Karishma, filed a criminal complaint of defamation against Bradford and journalist Pammi Somal in the Court of the Additional Chief Metropolitan Magistrate at Mumbai, who then issued summons to the respondents to appear in the matter on August 22, 2003.

On June 14, 2003 Bradford's counsel submitted to the SJB of the HC that in an interview to journalist Pammi Somal of film magazine Cine Blitz, Karishma's producer, Akashdeep Sabir, said that Karishma was inspired by the novel 'A Woman of Substance'. Sahara contended that a tape-recorded interview cannot be held as primary evidence and can only be regarded as corroborative evidence. Sahara also contended that Karishma was based on a work entitled 'Aparajita' by Sachin Bhaumick, which was based on the life of a United Kingdom-based close friend of his. An affidavit of Bhaumick to that effect was filed. It was further contented that apart from the rags-to-riches theme, there was no similarity between Karishma and the novel 'A Woman of Substance' and that only substantial similarity of thought, sequence and expression could be termed as infringement and not mere similarity in idea, concept or central theme.

On June 30, 2003 the SJB of the HC vacated the injunction granted on May 7,2003, with a direction to start the telecast from July 7, 2003. The SJB directed Sahara to furnish a Bank guarantee of Rs. 2,500,000/- to the HC within four weeks. Bradford promptly challenged this order. The injunction was allowed to continue by the DB till further hearing. The DB directed Bradford to submit a copy of Bradford's book 'A Woman of Substance'.

Sahara submitted before the DB that one of its business rivals (which remains anonymous) was instrumental in filing suit against Karishma. Producer Akashdeep Sabir's counsel submitted that his client had never said in the interview to Pammi Somal that the plot of Karishma had been copied from Bradford's book.

After considering the evidence before it the DB on July 21, 2003 allowed telecast of Karishma, dismissed Bradford's appeal and refused to grant a stay of operation on its order as prayed for by Bradford.

• The DB observed that the interview conducted by Pammi Somal shows, by its internal evidence, that Akashdeep Sabir, had not read the book by Bradford.
• The DB relied on the case of RG Anand v/s Deluxe Films, 1978 (4) SCC 118, wherein (@paragraph 46, proposition No. 1 at page 140) the SC has held that: - "There can be no copyright in an idea, subject matter, themes, plots or historical of legendary facts and violation of the copyright such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work."
• Sabir in the interview had admitted to borrowing only the plot and some characters. Therefore, the DB observed, "Copyright infringement cannot be established on this alone. There is no prima facie case at all yet. Infringement can be established only by comparing and showing similarity of details, events, situations, expressions of language and imagination. Learned leading Counsel of both sides had not even read the book. How can infringement be established when even the book had not been read?"
• o The DB also made observations in respect of the balance of convenience and considered the contention of Sahara that they had spent over Rupees One Billion and taken Rupees One Hundred and Ten Million from advertisers. The DB observed "…plaintiffs will hardly suffer any loss of value of their book; if an injunction is obtained after 15/20 episodes (assuming there is going to be an infringement), the plaintiffs will get practically their full relief, and the respondents will be in almost equal problems as not starting at all. The balance of convenience heavily favors the respondents."
• The DB further observed that the interlocutory application of Bradford is premature.

It appears from the order of DB that Bradford are free to move the HC once again praying for injunction, if after watching Karishma Bradford, in fact, can establish infringement. The DB observed that "If 15-20 episodes are shown, then details of similarity can be established; the plaintiffs might… have a prima facie case then; they have none now."

The DB also ordered Bradford to pay Rs. 150,000 /- per week for causing delay in telecast of Karishma to Sahara and directed Bradford to pay Rs. 10,000/- per day for trial court proceedings and Rs. 15,000/- per day for appeal court hearing as cost of litigation to Sahara. The DB also set aside the Bank guarantee of Rs. 2,500,000/- that Sahara had been asked to pay.

On July 21, 2003 Bradford moved the SC challenging the HC order allowing airing of Karishma. On August 4, 2003 the SC dismissed Bradford's Petition, challenging the order of the DB allowing telecast of Karishma but set aside the order imposing heavy costs and damages on her.

Perhaps the tortuous destiny of Karishma could have been curtailed if the two stories had been read sooner to determine whether or not there was in fact an infringement of copyright or not.

We believe that in the suits based on infringement of copyright, the examination of rival works should be done at the earliest possible opportunity in order to ascertain whether a prima facie case for infringement is made out. Since copyright exists in the expression of an idea and not in the idea itself, close comparison of "expression" is necessary to ascertain whether at least a prima facie case is made out. Balance of convenience and comparative hardship are also factors to be taken into consideration while granting or refusing interim injunction.

In India where a civil litigation takes around 10 to 12 years to be finally heard, the fate of parties in intellectual property infringement matters is decided at the interim stage itself, since after passage of time intellectual property often loses its value. Therefore, a practice has developed in intellectual property infringement matters where detailed evidence on affidavits is led at the interim stage itself and the interim injunction matters are heard at length, sometimes even for weeks, where the merits of the matter are argued in detail with support of case laws.

Whether the Karishma saga was orchestrated by a rival channel, as claimed by Sahara or was just the unhappy result of a misdirected but genuine attempt to bring to book pirate Bollywood script writers, may or may not come to light, but the travails of 'Karishma - The Miracle of Destiny' has definitely provided a considerable amount of publicity to Karishma.