Kerala High Court grants anticipatory bail to Kantara director, producer booked in Varaha Roopam copyright infringement case

The Kerala High Court on Monday granted anticipatory bail to Rishab Shetty and Vijay Kiragandur, the director and producer respectively of Kannada movie Kantara, who were booked for copyright infringement over the song Varaha Roopam [Vijay Kirgandur & Anr. v State of Kerala]. .The song Varaha Roopam has been the subject matter of two suits moved by Mathrubhumi Printing and Publishing Co. Ltd and Thaikkudam Bridge, the copyright holder and creator respectively of another song called Navarasam that was released over 5 years ago..While granting anticipatory bail to Shetty and Kiragandur, Justice A Badharudeen imposed a specific bail condition that "the petitioners shall not exhibit the film `KANTARA' along with the music `VARAHAROOPAM' in the film till an interim order or final order after addressing infringement of copyright in this matter will be passed by a competent civil court".The judge noted that the proceedings in the copyright infringement litigation has been stalled due to a jurisdictional issue which is yet to be decided by the High Court. Therefore, he deemed it fit to grant anticipatory bail while also protecting the interests of the other parties to the suit. "...releasing the accused on anticipatory bail and allowing the infringement to continue so as to permit the infringer of the copyright to take benefit out of the same, could not be done. If so, ultimately the infringer would get benefit out of the plagiarized and pirated version after infringing the copyright of another person which he obtained after long cherished hard work and intellectual application of mind. Resultantly, the copyright holder's right to enjoy benefit out of the copyright protected subject matter practically will be taken away," the judge reasoned. .However, the Court's order made it clear that they can move the appropriate civil court to get an expeditious decision on the copyright infringement allegations.The duo were also directed to co-operate with the investigation, make themselves available for interrogation, and refrain from influencing witnesses, tampering with evidence, or getting involved in any other offence. .Shetty and Kiragandur were arrayed as accused in a (first information report) FIR registered alleging commission of the offence punishable under Section 63 of the Copyright Act by using the music of Navarasam in Varaha Roopam.Seeking anticipatory bail, the duo argued that Varaha Roopam is an independent creation having no connection with Navarasam. Even the prosecution has not collected any material to prove that Varaha Roopam is similar or deceptively similar. Instead, the prosecution has merely relied on the opinion of someone who viewed the film and saw some similarities, the petitioners argued.On the other hand, the Public Prosecutor opposed the grant of anticipatory bail on the ground that it would hamper the investigation. It was further argued that the prosecution had collected material that prima facie substantiated the allegations in the FIR. The Court first reiterated that the offence alleged is a cognisable and non-bailable offence. On going through the opinion collected by the investigating officer, it opined that the same prima facie indicated similarity between the two songs. "In addition to that the Investigating Officer, on gathering opinion from expert, reported that `VARAHAROOPAM' is, the plagiarized and pirated version of `NAVARASAM'. If so, the violation of copyright alleged by the defacto complainant could be discernible from the prosecution materials, prima facie. Thus detailed and fair investigation is absolutely necessary in this regard," the Court said. The Court then noted that Mathrubhumi Publishing and Thaikkudam Bridge had filed two separate suits before the District Courts of Kozhikode and Palakkad.The two courts had found the suits to be not maintainable and had returned the plaints for it to be moved before the appropriate commercial court. Mathrubhumi and Thaikkudam Bridge then challenged the two orders before the High Court and those cases are currently pending.It is in light of the delay in the proceedings in the civil suits that the Court ultimately decided to grant anticipatory bail..The petitioners were represented by advocates Anoop V Nair, E Adithyan, and Rohan Mammen Roy..[Read Order]