‘Betaal’ Case and The Inverse Ratio Rule: No monopoly Over Mythology
In the recent case of Sameer Wadekar v. Netflix the Bombay High Court accentuated the importance of ‘accessibility of work’ test also understood as inverse ratio rule. The case arose over Netflix’s horror drama titled ‘Betaal’ which the plaintiff alleged to be a copy of its original literary work ‘Vetaal’.
Plaintiff’s position was that Vetaal, is an original creation of the imagination. Plaintiff created the Vetaal story in 2013–14 and obtained copyright registration in 2015. The Vetaal story was also registered with the Screen Writers Association in 2018. Plaintiff accentuated at least 13 similarities between his work and Netflix’s Betaal.
Netflix claimed Betaal an original work and also emphasized that the news about its work Betaal was made public in June 2019 and it contained a description of the story of the series. Hence argued for a case of delay and latches.
Court’s observation
The Court relied on three major points to reach a conclusion which I found a little problematic.
Inverse Ratio Rule
The Court deliberated on the accessibility of the plaintiff’s work by the defendant to know about the story of the plaintiff’s original work. The Court defied all the claims of the plaintiff and ruled that it is not possible that the original work of the plaintiff can be copied by anyone else. The court’s reliability on the proof of access is also known as inverse ratio rule which has recently been jettisoned by the US Ninth Circuit Court in Skidmore v. Led Zeppelin. In simple words, the inverse ratio rule says that when showing that the defendant had access to the plaintiff’s work is very strong, the bar for showing the similarity between the works is correspondingly lower.
Interestingly, there is no such rule similar to the Inverse Ratio Rule in India. Courts have dealt with the proof of access test, though in an obscure way without providing explicating the rule per se. In Twentieth Century Fox Film vs Zee Telefilms Ltd. & Ors, Delhi High Court pondered upon the difficulties of procuring direct evidence of copying and ruled that secondary proof of copying lay in “establishment of similarities between the plaintiff’s work and the defendant’s work, combined with the proof of the possibility of access by the author of defendant’s work to the plaintiff’s work” The wordings of this judgment hence imply that such a test is necessary for establishing a case of infringement. Further, in Mansoob Haider v. Yashraj Films Pvt Ltd, the Court stated that “the question of access plays a material, though not determinative, part in the assessment of any action of copyright infringement”. It also observed that irrespective of whether access is proved or not, “if similarities are so extensive as to eliminate any possibility of the rival work being original”, the plaintiff’s claim for an injunction should be considered in that case.
Given these, it won’t be incorrect to say that the need to prove access is material and not determinative. Therefore, in the present case, the Court should have delved more into the similarity between the two works in order to reach a sound conclusion..
Delay and Laches
The court relied on the availability of information on the public domain since June 2019 and negated the plaintiff’s claim of unawareness of the publications. Thus, the court denied the remedy to the plaintiff by relying on the principle of delay and latches.
This appears contestable on various judicial pronouncements. Illustratively, in Midas Hygiene Industries (P) Ltd. vs. Sudhir Bhatia and Others, the Supreme Court stated that “Mere delay in bringing the action is not sufficient to defeat the grant of injunction in such cases.”. In Hindustan Pencils (P) Ltd. vs India Stationery Products Co., the court held that the mere delay and silence, although with knowledge of an infringement, do not amount to consent and are no bar to relief against a continuance of the infringement. In the Court Of Shri Man Mohan vs M/S Gyancy Enterprises, the court clarified that the statutory right can not be lost or defeated by delay. Delay may defeat rendition of account, damages, cost, and not an injunction.
No copyright in Mythology
The Court noted that the word ‘Betaal’ has originated from the word ‘Vetalam’ which is related to Hindu Mythology and everyone knows the said tale in Hindu Mythology. However, the court failed to notice that even a common idea if expressed originally can be subject to copyright law because the originality does not mean novelty. In Eastern Book Company & Ors vs D.B. Modak & Anr, the court had clarified that copyright is given to an original as, given Section 13 of Copyright Act. In FEIST PUBLICATIONS, INC case (which was heavily relied upon in D.B Modak Case) the Court held that “originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying”. In the instant case, the Court should have looked into the similarities between two works and delved more into the fact-specific inquiry (especially w.r.t accessibility of work and ) in order to reach a sound conclusion.
Finally, the Bench led by Justice K.R. Shriram dismissed the interim application. Mr. Kadam sought leave to amend the plaintiff to include claims and damages. The Court granted a period of 8 weeks to file the written statement.
