In May, Pocket FM, an on-demand platform for podcasts and audiobooks, went to the Delhi High Court with an interesting charge: it alleged that its competitor, Kuku FM, was violating Indian copyright law by putting up audio summaries of a few popular self-help books that it said it had an exclusive license for. Entrackr obtained thousands of pages of court filings detailing the battle.
Pocket FM and Kuku FM declined to comment on the case.
The books whose copyright Pocket FM is accusing Kuku of violating are global bestsellers that are a common sight in Indian bookstores: books by Robert Kiyosaki like Rich Dad Poor Dad; Jay Shetty’s Think Like A Monk; Deepak Bajaj’s Be A Network Marketing Millionaire; and Brian Tracy’s Eat That Frog. Pocket FM is seeking Rs 2 crore in damages.
Pocket FM signed a deal in March with Manjul Publishing House, a major publisher of translated titles that held the Hindi rights to these books. This agreement, Pocket FM argues, gives it the exclusive audio rights to these books, which it says Kuku FM is violating by publishing summaries of the titles.
Pocket FM argued in its petition and affidavits with the high court that Kuku FM was commercializing a competing product for which it held rights: summaries are essentially just a condensed version of the book, and compete with the full audiobooks that they have produced, they said.
Kuku FM also had full versions of a couple of these titles, but removed them upon being served notice of Pocket FM’s license to those titles.
But, Kuku countered, its summaries did not run afoul of the law, and that it was creating something new by analyzing and interpreting the contents of the book it was summarizing. They argued that their summaries were specifically curated for their platform.
The court is yet to make a determination on whether the summaries of the books published by Kuku FM violate Pocket FM’s rights. But one crucial piece of Kuku’s defense — and Pocket FM’s response to it — throws some light on the significance of this battle.
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In 1957, the Madras High Court saw a petition from a far field: renowned English novelist EM Forster and his publishers. A Passage to India, Forster’s landmark work set in British India, was listed as required reading for students at the University of Madras. A scholar named AN Parasuram soon after published a guidebook with a summary of the book along with analysis, targeted at Madras University students. This was not new territory for Parasuram; in 1949, he had published a similar expository analysis of Shakespeare’s Hamlet, which is available in the public domain today.
But unlike Shakespeare’s works, Forster’s oeuvre was still protected by copyright laws at the time, so he and his publisher in India filed a lawsuit against Parasuram, accusing him of infringing their rights by publishing the summary.
The court ultimately decided that Parasuram’s work did not violate Indian copyright law, which was then practically identical to British statute. The court reasoned that Parasuram’s purpose — helping university students — pervaded his work to such an extent that it was no longer a substitute for, or even an “abridgment” of Forster’s novel.
Copyright law around the world has always suffered from being unable to predict and clearly outline new ways of adapting a creative work, and examining whether and how they impact an author or publisher’s rights. And so, particularly in jurisdictions like the US and the UK, courts have drawn rough boundaries, leading to concepts like Fair Use protections — where adaptations for the sake of criticism or parody are allowed — growing completely from jurisprudence, and not legislation.
65 years later, Kuku FM’s lawyers cited Forster’s loss in their favor.
But there’s a hitch: shortly following Forster’s loss, Indian copyright law was updated.
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The Copyright Act of 1957 is far clearer than its predecessor on what constitutes an ‘adaptation’. The act explicitly mentions that publishers’ copyright is protected in case of “any abridgement of the work”.
Pocket FM’s lawyers argued that adaptations include abridgments this way by law, and that even if Kuku’s summaries had an original analysis or way of expression, they were still committing copyright infringement. They contended that the summaries also consisted of verbatim extracts and used exact anecdotes as mentioned by the author.
Kuku FM argued in response that the summaries were not book summaries in the traditional sense, but were original creative works that were produced by “permeating their intellect and creativity” into the books. It argued that the summaries were entirely different and did not have any plagiarism detected either. It also denied Pocket’s argument that the summaries are substitutes of the original novels.
Kuku additionally argued that Pocket wasn’t appearing with “clean hands” in the case, as it allegedly had some of these titles available before it signed its March deal with Manjul; it also argued that the case was being filed in bad faith, as Pocket was only filing suit against a competitor, and not against similar infringers on platforms like YouTube and Spotify. (Pocket FM retorted that copyright owners cannot be faulted for choosing which infringements they take action against.)
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It’s worth wondering if protection from copyright litigation for summarized or abridged versions of other works could be hurt if the Delhi High Court ends up ruling that Pocket FM’s rights were violated.
Geetanjali Visvanathan, a litigator with intellectual property firm Ira Law, said that there may not be a major change for the publishing industry if Kuku’s summaries are found to be infringing on Pocket FM’s license. “Publishers don’t want people to create abridgements of their books, because they want to monetize their work themselves. The consumer is the one who might see this as a repercussion; currently, this is a niche industry. However, a finding of non-infringement will be detrimental to the publishing industry given that it has just started to venture into the digital age.” Visvanathan said.
If the court makes a more narrow finding — that substitutability of abridgments, competitive commercial exploitation, and other such elements are important to find that copyright infringement occurred — there may be few unintended consequences. But such a finding may still create new opportunities for publishers to act against shortened versions of books, films and music.
The next hearing of the case is scheduled for November 10.
