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30 June 2014
On October 12 2013 Muhammad Kashan, the owner of music production house Dream Music Productions, filed a suit before the High Court of Sindh at Karachi seeking a declaration, permanent injunction and damages against, among others, The Coca-Cola Export Corporation, Pakistan Branch (Coca-Cola Pakistan) and Frequency Media (Private) Limited for alleged copyright infringement in the sixth season of Coke Studio, a widely acclaimed music programme owned and financed by Coca-Cola Pakistan and produced by Frequency Media in Pakistan. The suit was filed soon after Coca-Cola Pakistan launched the sixth season of Coke Studio with advertisements and promotion on television, the Internet, billboards and in newspapers across Pakistan.
The plaintiff claimed that Coca-Cola Pakistan and Frequency Media had, in the sixth season of Coke Studio, imitated his unique idea of having foreign and local artists perform together in a musical programme and, as such, had infringed his copyright in a work entitled 'Dream Music' (which comprised a video presentation and a booklet). He further claimed that the format of the sixth season of Coke Studio was a departure from the format used in the first five seasons. The plaintiff based his claims on the assertion that he had discussed and shared his idea of collaborations between local and foreign artists in a reality music show with individuals associated with Coca-Cola Pakistan and Frequency Media before the launch of the sixth season of Coke Studio.
In view of theses claims, the plaintiff asked that the court:
The defendants, particularly Coca-Cola Pakistan, countered the plaintiff's claims by disputing the facts submitted by the plaintiff and quoting relevant provisions of the Copyright Ordinance 1962. Coca-Cola Pakistan argued that in accordance with Section 3 of the ordinance, read alongside Section 10, a copyright exists in certain classes of work and entails the exclusive right – in the case of literary, dramatic and musical works – to reproduce, publish, produce, perform, adapt, broadcast, translate, rent or use the work in a cinematographic work, or to authorise such acts. Moreover, it was argued that the definition of 'works' contained in Section 2 of the ordinance does not extend to ideas or concepts.
Coca-Cola Pakistan also argued that the concept of collaboration between local and foreign artists was in any case not a novel or unique idea, and that such collaborations have taken place throughout the course of musical history. In this regard, a number of past examples of collaborations between foreign and local artists were submitted, including:
In support of its arguments, Coca-Cola Pakistan relied on a number of foreign and local decisions involving similar questions of copyright law. Based on these decisions, Coca-Cola Pakistan asserted that the plaintiff did not have copyright in his Dream Music work. Further, Coca-Cola Pakistan denied having any knowledge of Dream Music. Thus, Coca-Cola Pakistan contended that the plaintiff had failed to establish a prima facie case against the defendants and, as a result, was not entitled to any relief.
The primary questions before the court were whether copyright subsists in an idea or expression, and to what extent the plaintiff's work was entitled to protection under the Copyright Law. If copyright did subsist in the plaintiff's work, the court then had to determine whether the defendants had infringed the work in a way that entitled the plaintiff to receive injunctive relief against the defendants.
In analysing the first question, the court relied on several passages from a well-known and authoritative treatise on the subject, Copinger & Skone James on Copyright (16th Edition), which addresses the question of copyright in ideas. The referenced passages also discuss the different forms of expression that an idea can take and state that every expression or work is based on an idea developed by the author. As such, the court concluded that an idea can be expressed in indefinite ways and therefore there can be no copyright in an idea. In this regard, the court remarked: "[T]he object of copyright is to prevent the copying of the particular form of expression in which these things are conveyed. If the expression is not copied, copyright is not infringed."
In light of the referenced treatise, the court concluded that the two possible works in which the plaintiff could claim copyright were the booklet and the video presentation comprising Dream Music. The court referred to these works as a 'concept note', which was defined as a form of preliminary description of an idea that is intended to be expressed subsequently in the copyright sense. Although stating that copyright may exist in a concept note, the court held that such protection cannot normally be regarded as extending to the expression of an idea merely described in the note. This is because there can be numerous and indiscriminate expressions of an idea. As such, after viewing the plaintiff's video presentation, the court concluded that it lacked the expression which may be protected by copyright; therefore, no copyright could subsist in the possible expressions of the idea contained in it. Further, in comparing the promotional video for the sixth season of Coke Studio and the plaintiff's video presentation to determine whether any infringement of the latter had occurred, the court concluded that the two videos were distinct and each proceeded on its own basis. The court added that the ideas described in the two works were also distinct. As such, there was no question of infringement of the plaintiff's work.
With regard to the content of the booklet, the court concluded that it simply gave an overview of the idea conceived by the plaintiff, and although it contained some indication of how the idea may subsequently be expressed (in the copyright sense), the work itself was not an expression of it. As such, the court held that there had been no infringement of the plaintiff's copyright in the booklet.
In view of the above, the judge concluded that the plaintiff had been unable to make a case for interim injunctive relief on the grounds of infringement of a work under the Copyright Ordinance and thus dismissed the plaintiff's application for an injunction against the production, distribution, advertising and airing of the sixth season of Coke Studio.
Although the main case is pending adjudication before the court, the court's refusal to grant the plaintiff's application for injunction does constitute an important development with respect to copyright protection for ideas in Pakistan.
For further information on this topic please contact Ali Moiz Ansari at Vellani & Vellani by telephone (+92 21 3580 1000), fax (+92 21 3580 2120) or email (firstname.lastname@example.org). The Vellani & Vellani website can be accessed at www.vellani.com.
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