SUPREME COURT CLEARS TELECAST OF KARISHMA

Originally scheduled for launch on May 12, 2003, 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 - in a suit in which best selling romance novelist Barbara Taylor Bradford ("Bradford") alleged 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. The SJB refused Sahara's application for vacation of the injunction order. On the same day on appeal by Sahara, the Division Bench (DB) of the HC allowed the telecast of Karishma. Later that day, on Bradford's appeal the Vacation Bench of the Supreme Court (SC) by an ex-parte order stayed the airing of Karishma. In the next hearing, SC stayed proceedings before the HC and restrained airing of Karishma till decision of Bradford's Petition. On May 19, 2003 the SC remanded the matter to the SJB of the HC

Thereafter in the HC, Sahara contended that Karishma was based on a work entitled 'Aparajita' by Sachin Bhaumick; that apart from the rags-to-riches theme, there was no similarity between Karishma and the novel; 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 vacated the injunction granted on May 7, 2003, with a direction to start the telecast from July 7, 2003. Bradford promptly challenged this order before the DB, which was allowed, and the injunction was allowed to continue till further hearing and directed Bradford to submit a copy of Bradford's book.

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 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-A Miracle Of Destiny, 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. 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?" (RG Anand v/s Deluxe Films, decided by the SC was relied upon). 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. Bradford was ordered to pay heavy costs to Sahara.

It appears from the order of DB that Bradford is free to move the HC once again praying for injunction, if after watching Karishma, Bradford can, in fact, 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."

On July 21, 2003 Bradford moved the SC challenging the HC order. On August 4, 2003 the SC dismissed Bradford's Petition, 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.

In 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.