In India, there is no specific legislation for protection of confidential information or trade secrets. However, courts in India have consistently applied principles of common law and breach of contract in enforcing claims for protection of such information. These principles were reiterated by the High Court of Bombay in an order delivered on March 27 2003, dismissing an appeal by Zee Telefilms, a well-known TV production company in India, and upholding the order of an interim injunction granted by a single judge at first instance. By this order, the single judge had restrained Zee from proceeding with broadcasting its television serial Kanhaiyya on principles of copyright infringement and breach of confidential information.
Sundial Communications, the plaintiff, an upstart company of experienced entrepreneurs engaged in the business of television programming and television serial production, conceived a concept involving a rich, dysfunctional family with its simmering cauldron of modern day maladies and the succour provided to it by a miracle-performing child who enters the family as an avatar of Lord Krishna called Kanhaiyya. In keeping with the industry custom, Sundial registered the concept with the Film Writers' Association and the title Krish Kanhaiyya with the Indian Motion Pictures' Producers' Association. With a view to exploiting the concept as a fully-fledged TV serial, Sundial presented the same to Zee on a clear understanding of its confidentiality and Sundial's exclusive proprietary interest therein. Emboldened by Zee's positive response, Sundial produced a detailed concept note and a pilot videotape and presented the same to Zee for its review. Having not heard from Zee, Sundial approached other production companies such as Star TV, Sony TV and Sahara TV. Even though Sony showed an interest in producing and broadcasting the concept, it subsequently declined to sign any contract with Sundial after learning that Zee was proceeding to produce and broadcast a TV serial Kanhaiyya based around a similar dysfunctional family with internal fights and a magic-wielding child called Kanyaiyya.
Aggrieved by Zee's blatant acts, Sundial sought an order of injunction primarily on the grounds of:
infringement of copyright in its concept note as a literary work which includes the right to make a cinematograph film based on it; and
breach of confidentiality.
In defence, Zee primarily contended that the concept of Lord Krishna appearing in its original or human form is not novel and, therefore, lacks originality. Rejecting the defence and upholding the order of an interim injunction, the High Court held:
Zee's work was similar in material and other substantial aspects to that of the plaintiff including such common features as:
a dysfunctional family;
Lord Krishna entering the life of the family (Zee's work, the association of the child with Lord Krishna, is reinforced by the recitation of the Bhagwat Gita throughout the episodes);
opening titles in both the works feature a peacock feather (associated with Lord Krishna) with the main character's face and the titles Krish Kanhaiyya and Kanhaiyya written across it;
keeping in view numerous striking similarities, Zee could not raise the plea of coincidence and was thus guilty of breach of confidentiality; and
as the concept of Lord Krishna in child form is central to the respective works, Zee's work constitutes a substantial reproduction of the plaintiff's concept note as a literary work.
The above case illustrates how Indian courts are ever willing to protect small operators against the predatory crocodiles of the entertainment industry.
Rajendra Kumar
