IN THE HIGH COURT OF KERALA, AT ERNAKULAM

[SPECIAL ORIGINAL JURISDICTION]

Writ Petition.(Civil).No2 2 7 9 0......of 2015

Anupama Mohan....Petitioner

Vs.

State of Kerala & Ors..........................................Respondents

S Y N O P S I S

This writ petition is filed against the mass commitment offence under

the Copyright Act, 1957 by the instrumentalities of the State by selling

the copyrights of about 25000 children who perform during the Kerala

School Youth Festival in State, District, Sub-District and School level.

It is an annual event of art and literary competitions of the students of

High school and Higher Secondary Schools being conducted by the

Government of Kerala. To avoid complaints and to decide on appeals

arises from the decisions of the competition, the entire events are

videographed using high quality equipments by the sound operators of

the venue and it is being secretly given to the outsiders who sell it for

consideration. Exhibits.P.2 to P.4 will show that such works are sold in

open market. The original work done by the artists have the

protection of Copyright Act, 1957 and the same cannot be taken away

without their consent as permitted by law. The students aged below 21

years are exploited by the State and its instrumentalities and enquiry

by Copyright Board sought for. Petitioners rights to have the

protection of Copyright infringed.

Dated this the 23rd day of July, 2015.

Counsel for the Petitioner

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IN THE HIGH COURT OF KERALA, AT ERNAKULAM [SPECIAL ORIGINAL JURISDICTION]

WRIT PETITION (Civil ).No.. 2 2 7 9 0.....of 2015

BETWEEN

PETITIONER: Anupama Mohan, aged 59 years, wife of M . Mohan, Sathyaanjali , HIG 24, Kasturba

Nagar, GCDA Colony, Cochin, 682 020.

AND

RESPONDENTS:

1. State of Kerala, represented by its Principal Secretary, General Education

Department, Secretariat, Thiruvananthapuram-695 001.

2. The Director, Department of Higher Secondary Education, Housing Board

Buildings, Santhi Nagar, Thiruvananthapuram-695 001.

3. Inspector General of Police, CBCID, Economic Offences Wing,

Thiruvananthapuram-695 001.

4. Copyright Board, Represented by its Deputy Registrar, Copyright Division,

Department of Higher Education, Ministry of Human Resource

Development , Government of India, 4th Floor, Jeevan Deep Building ,

Parliament Street, New Delhi-110 001.

5. Sargam Musics, Represented by its proprietor, TC 37/1713, Fowziya

Commercial Centre, Calvery Road, West Fort, Thrissur-680 004.

6. Orthic Creations, Represented by its Proprietor, ACV News Complex, Bus

stop, Opp. Nirmala High School, Muvattupuzha-686 661.

All process to the petitioner be served on her counsel M/s.. P.B.SAHASRANAMAN, T.S.HARIKUMAR, K.JAGADEESH, RAAJESH.S. SUBRAHMANIAN, Advocates, Sahasram Associates, Narayaneeyam Buildings, Chittoor Road, Cochin-682011.

All process to the respondents be sent on their above addresses or on their advocates, if any engaged.

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WRIT PETITION FILED UNDER ARTICLE. 226 OF THE CONSTITUTION

OF INDIA.

Statement of Facts.

The petitioner above named states as follows:

1. The petitioner is a known artist of the dance form Kutchupudi . She was a

student of Padmabushan Dr. Vempati Chinna Satyam a well known

Kuchupudi exponent. She is the founder of Sathyaanjali Academy of

Kuchipudi Dance, an institution recognized by Kerala Sangeet Natak

Akademi. It has branches in many parts of Kerala which undertakes

training classes for Certificate and Diploma courses in Kuchipudi dance.

There are more about 1000 students who learned Kutuchupudi form of

dance from the petitioner . Many of them had also secured prizes in the

many competitions including in the State School Youth Festivals, got

scholarships, become Doordarshan Grade artists, started teaching,

performers, etc. She has produced many dance forms and used to give the

same for performance to the students , the copyright of the same still

vests with her.

2. Every year competitions were conducted for the students of High School

and Higher Secondary Schools in art and literary competitions in Kerala.

The State level event is called Kerala School Kalotsavam (

) and is being conducted by the Government of Kerala from

1956. Winners from different revenue districts for a particular event will be

competing in state level competition. Competitions are held in more than

320 items which includes dance items, like Mohiniyattom, Kutchupudi,

Bharatha Natyam, Kathakali, Folk Dance, Kerala Nadanam, etc. In addition

separate categories for Music, Drama and Mimicry and other artistic items

are staged which are witnessed by thousands of people. This programme

is a stepping stone for the many of the students who wanted to become

an artists in future. More than 25000 students participate in such events

from all parts of the Kerala State. The State Government collects an

amount of `. 20/- (Twenty rupees) from each student towards expenses for

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conducing the same. The students who wanted to participate seek the

assistance of experts to make best performance. A true copy of the

Circular issued by the Joint Director (Academic) of the 1st respondent NO.

Acd/Spc (2)/33349/HSE/2013, dated 16-11-2013 is produced herewith and

marked as Exhibit.P.1.

3. In order to conduct the State Level Youth Festival Organising Committee is

constituted consisting of Municipal Chairman/Mayor ,the District

Collectors, the Police Officers , and other important Government Officials

of the place where the programme is conducted. This Committee decides

the manner in which it is to be conducted and manages the entire affairs

of the programme. The entire events are video graphed by private persons

selected by the Committee. The candidates at the time of performance of

the programme used to give Compact Disc or Pen Drive of the dance item

which is being played in the modern electronic equipments for playing at

the time of progrmme. The music for the dance items are played through

such equipments which has got quality recording facility. The video

recordings are done to avoid complaints about the judgment of

performance at the stage. As per the Programme Manual, appeal is

maintainable against the decision wherein the video recording is played so

as verify as to whether the decision was taken rightly or not. The said

recording is done only for the above purposes.

4. Most of the dance and music performances are original work done by the

teachers like this petitioner and sometimes by the artists with the help of

experts on the field. The dances used to seek the assistance of

Choreographers, Orchestra, Singers, Music Directors, Make Up men,

Costumes, by incurring substantial amounts. Even student performing

dance items has to incur an amount of `. 20,000 to `. 80,000/- for each

item of performance. This petitioner used to help students who could not

afford to such huge sum by spending out of pocket. The students prepare

and practice well and their performance is always accepted by the general

public. Some of the top artists have become famous film stars later on.

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5. The works done by these performers in these Youth festivals are authored

by the participants and in some case by the teachers. The said work done

by the candidates are protected by the Copyright Act, 1957 [hereafter

referred to as the said Act]. The said teachers or the candidates are the

First Owners of the work done by them. They have the right to issue copies

of their performance made by them in the said Youth Festival. But it is

seen from 2011 onwards that the visual recording done in the said venue

are being reproduced in the internet and sold in digital format. Digital

Video Disc (DVD) are sold in open market by some agencies . For example

the 3rd respondent is selling such DVDs through internet. A DVD of

Bharathanatyam, a single item is sold of `. 100/-. A true Photostat copy of

the web pages of the site, www.sargammusics.com/52-school-kalotsavam

of the 4th respondent is produced herewith

and marked as Exhibit.P.2.

6. The petitioner has purchased a two Video Compact Disc (VCD) of the

Kuchupudi Dance performance of boys and girls made at the 52nd Kerala

School Youth Festival, 2012. On viewing of the same it is understood that

it contains the performance of several of her students. For example one

student of the petitioner Achitha Aneesh , who later became Kalathilakam

has performed and the right of this petitioner has not been sold to any

person. But that is shown in the said VCD. Likewise the performance of

Aishwarya Viswan has been shown in the VCD. The original sound track

from the CD or pen drive given to the Organizers for playing during their

performance in the stage have been copied and sold it to persons like the

4th respondent. As per the said Act only this petitioner has the right to

assign the said right of their performances. Photostat copy of the covers

of the said VCDs of 52nd Kerala School Youth Festival, 2012, dated NIL is

produced herewith and marked as Exhibit.P.3. The original covers and the

CDs are kept by this petitioner which will be handed over as and when

required.

7. The petitioner also comes to know of another institution, Orthic creations,

selling VCDs of the State School Youth Festival. Their VCDs are available

in the open market. The petitioner has purchased two such VCDs and

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found that it contains many Kutchupudi item of dances of about 20 items

which are works of this petitioner and she alone has the right to sell it.. A

true Photostat copy of the covers of the VCDs of the State School Youth

Festival, produced by the 5th respondent is produced herewith and marked

as Exhibit.P.4. The originals are kept by this petitioner which will be

produced as and when required or orders to be produced.

8. The performers used to give the CD containing the music to the organizers

at the venue. The light and sound in the stage is being controlled by the

Organizers who engage people for recording. Only with the aid and

connivance of the said persons such pilferage of the original sound is

possible. Several students of the petitioner who have performed in the

said State Youth Festival have complained that their performances are sold

in digital form in abroad and in India for heavy sum. By selling it through

internet the visual recordings Crores of rupees are earned by many

unknown persons. Every performer in the school youth festival has got a

copy right over the art or literary work done by her/him. The same cannot

be taken away by any person including the State Government other than

through the way permitted under the Copy Right Act, 1957.The various

dance forms, music performance, Plays and other arts and literary worked

staged at State Youth Festival are being recorded and sold illegally.

9. In order to facilitate the implementation of the Copyright Act, 1957 the

Government of India has appointed the 3rd respondent as the nodal

officer. But the respondent is not taking any action for the reason that it is

being done by the Government and some of the persons who are on

higher up. As per Sec. 64 of the Act the 3rd respondent has powers to seize

infringing copies. But nothing has been done and it is sold in public

domain and shop.

10. Many of the students, teachers and parents are not unable to complaint

individually for the reason that it is programme being conducted by the

State Government and its officials. Many of them are not aware of their

legal rights available under the Act. Copyright in a "work" is a valuable

legal right subsisting in the "owner" or somebody claiming through the

P a g e | 7

owner. Such a right has more than one dimension. It may have a

commercial value depending upon the quality, nature and the public

demand of the work. It may also have aesthetic value. Whether such a

right should be transferred or not is a matter, essentially, for the "owner"

of the copyright to determine. It is, further, the right of the owner to

decide on what terms and conditions (which need not necessarily be

related to money alone), he would part with the copyright of his work if

ever he decides to part with it.

11. No person has a right to publish any video film in respect of any work

unless the consent is obtained from the owner and it must be specifically

stated in the cover as contemplated under Sec. 52A of the Copyright Act,

1957. None of the candidates who have performed have given consent to

the respondents 1 and 2 or to any other persons. Therefore the marketing

of video films of the performances done in the Youth Festival are clear

penal offences punishable under Sec. 68A of the said Act. This fact is

brought to the notice of the 3rd respondent several times by email as well

as by phone calls. Despite the knowing the 3rd respondent has not done

anything so far.

12. In this year the Youth Festivals starts commence from school level in

September, 2014. The Sub-District Level Youth Festival starts in October

and the District Level youth festival commences in November. The Kerala

State Youth Festival, the big event takes place in January, 2016 as per the

Academic Calendar published by the 1st respondent.

13. Only if a proper action is taken against the known violators which are the

officials of the respondents 1 and 2 action the criminal act will end. Since

the persons who has committed the offence are Government Officials it is

essential that an investigation by the 3rd respondent, the Nodal Officer, will

not serve the purpose. The only person who can do something in this writ

petition is the 4th respondent who can conduct an independent enquiry in

this. In order to protect the copyrights of artistic work of the said

participants in the Kerala State Youth Festival this writ petition is filed by

invoking this Court's extraordinary jurisdiction under Article.226 of the

Constitution of India on the following among other grounds:

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G R O U N D S

A. The State and its instrumentalities are bound to protect the Copyrights of

the participants in the State School Youth festival as well as District Level

conducted by them. The rights available to the students should be

protected and not allowed to be exploited by outside agencies. Many of

the students who do not know their legal rights have been mislead by the

respondents 1 and 2 and other officers knowingly that they are abetting

the offence of infringement has committed offences under Sec. 63 of the

said Act.

B. Officers like the 3rd respondent are bound to implement the provisions of

the said Copyright Act, 1957 by prosecuting the offenders who have are

infringing the provisions by selling the video recordings. But they are

keeping mum on the issue for unknown reasons. Enactment of law and

tolerating infringement is not enacting the law at all. Even if they conduct

an investigation it will not bring truth and therefore an enquiry by an

independent outside agency is very much essential in the circumstances.

C. The equality before law has many facets . It is the duty of the State , under

Art.38 to secure social order for the promotion of welfare of the peo-

people. Students who participate in the Youth Festival are being exploited

by selling their valuable copyrights by Organizers by recording their

performances and selling the same to outsiders who sell it. All the said

works are done by the Government Official. A through enquiry into the

entire infringement of the works done at the State Youth festival during

the previous years is also required in the circumstances.

D. It is the duty of the State and its instrumentalities to protect the rights of

the petitioner and other persons under the Copyright Act, 1957. If they

themselves violate the law to be violated it will a situation of failure of law

and order. They failed because many of the instrumentalities of the

Government are involved in it.

For the reasons set out above and the reasons to be submitted at the time

of hearing the petitioner prays that the following :

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R E L I E F S

i. To issue a writ, direction or order in the nature of mandamus or such

other appropriate writ, direction or order commanding the 4th

respondent to conduct an independent enquiry into the

circumstances under which videos of the Kerala Kalotsavam (Kerala

State Youth Festival) have been infringed or abated by the

Organisers or others persons engaged by them in earlier years and

to prosecute them in accordance with the provisions under the

Copyright Act, 1957 and other enactments;

ii. To issue a writ, direction or order in the nature of mandamus

commanding the 3rd and 4th respondents to implement the

provisions of the Copyright Act, 1957 in respect of State School

Youth Festival every year and to see that the video and audio

recordings of the Kerala School Youth Festival , District, Sub-District

and School level;

iii. Such other reliefs which this Hon'ble Court deems fit and necessary

in the circumstances of the case and the costs of this case.

Court Fees paid under the Kerala Court Fees and Suits Valuation Act.

Schedule-II, Art-(I)11 (l)(2)(iii). `..100/-.

Dated this the 23rd day of July, 2015.

Counsel for the Petitioner Petitioner.

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INTERIM RELIEF

For the reasons stated in the writ petition and the accompanying affidavit it

is humbly prayed that this Hon'ble Court be pleased to pass an interim

order directing the respondents 1 to 3 to take immediate measures to

protect the Copyrights of the performers of the State as well as District

level School Youth Festival under the Copyright Act, 1957 and the video

graphic materials recorded are kept in safe custody so as to avoid any

pilferage , pending the disposal of the above writ petition.

Dated this the 23rd day of July, 2015.

Counsel for the Petitioner

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IN THE HIGH COURT OF KERALA, AT ERNAKULAM

[SPECIAL ORIGINAL JURISDICTION]

W.P.(Crl).No2 2 7 9 0........ of 2015

Anupama Mohan............................Petitioner

Vs.

State of Kerala and others....Respondents

AFFIDAVIT

I, Anupama Mohan, aged 59 years, wife of M. Mohan, Sathyaanjali , HIG 24,

Kasturba Nagar, GCDA Colony, Cochin, 682020, do hereby solemnly affirm

and state as follows:-

1. I am the petitioner in the above case. I know the facts of this case.

2. The accompanying writ petition is prepared by my counsel on my

instructions. I have gone through the petition and state that the facts

stated therein are true and correct to the best of my knowledge and belief.

I also declare that I have not filed any petition seeking similar reliefs in

respect of this cause of action. I am fully aware of the High Court Rules and

agreed to abide by it.

3. The Exhibits produced along with the writ petition are true copies which

have been provided by me to my counsel. For the protection of the copy

rights of this petitioner and participants of the Kerala State Youth Festival

it is essential that their works are not allowed to be pilferaged by any

person and those who have committed the offences are punished

properly;

What is stated above are true and correct to the best of my knowledge,

information and belief.

Dated this the 23rd day of July, 2015.

Deponent:

Solemnly affirmed and signed before me by the deponent who is personally known to me at Ernakulam on this the 23rd July, 2015.

P.B.SAHASRANAMAN ADVOCATE, ERNAKULAM

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IN THE HIGH COURT OF KERALA, AT ERNAKULAM [SPECIAL ORIGINAL JURISDICTION]

Writ Petition.(Civil).No 2 2 7 9 0..............of 2015 Anupama Mohan................................Petitioner

Vs. State of Kerala and others.............Respondents

INDEX

Sl.No. Particulars

Pages

1 Synopsis

1

2 Writ Petition

02-10

3 Affidavit

11

4 Exhibit.P.1. True copy of the Circular

issued by the Joint Director (Academic) of the 1st Respondent NO.Acd/Spc(2)/33349/

HSE/2013, dated 16-11-2013.

12

5 Exhibit.P.2. True Photostat copy of the

web pages of the site, www.sargammusic.

Com/52-school-kalotsavam of the 4th Respondent.

13-14

6 Exhibit.P.3. True Photostat copy of the

covers of the VCDs of 52nd Kerala School Youth Festival, 2012, dated Nil.

15

7 Exhibit.P.4. True Photostat copy of the

covers of the VCDs of the State School Youth Festival, produced by the 5th Respondent.

16

Dated this the 23rd day of July, 2015.

Counsel for the petitioner

Presented on:- 28th July, 2015.

Kerala State School Festival Performers work available under the Copyright Act, 1957 are allowed to be infringed by the State Government Officials Demand for prosecution by the Board.

IN THE HONOURABLE HIGH COURT OF KERALA At Ernakulam.

WRIT PETITION (Civil ) No.of 2015

Anupama Mohan.....Petitioner

Vs State of Kerala and others..Respondents

WRIT PETITION FILED UNDER ART.226 OF THE

CONSTITUTION OF INDIA

COURT FEES PAID `.100/-

Counsel for the Petitioner

P.B.SAHASRANAMAN [ S-34] T.S.HARIKUMAR [H-60]

K.JAGADEESH [ J-451] &

RAAJESH.S.SUBRAHMANIAN [ R-999]

Advocates

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APPENDIX

Petitioners Exhibits:

Exhibit.P.1. True copy of the Circular issued by the Joint Director

(Academic) of the 1st Respondent NO.Acd/Spc(2)/33349/ HSE/2013,

dated 16-11-2013.

Exhibit.P.2. True Photostat copy of the web pages of the site, www.sargammusic. Com/52-school-kalotsavam of the 4th Respondent.

Exhibit.P.3. True Photostat copy of the covers of the VCDs of 52nd Kerala School Youth Festival, 2012, dated Nil.

Exhibit.P.4. True Photostat copy of the covers of the VCDs of the State School Youth Festival, produced by the 5th Respondent.