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Could copyright be wrong?

Could copyright be wrong?
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First Published: Sun, Jan 17 2010. 09 17 PM IST
Updated: Sun, Jan 17 2010. 09 17 PM IST
Much media attention has gone into how much Vidhu Vinod Chopra’s movie 3 Idiots has borrowed from Chetan Bhagat’s novel Five Point Someone. The issue has not been one of plagiarism, but of credit.
The contract accords the producer the rights to “…interpret, adapt, title, create, and produce the novel (including its title, theme, story, characters, narration, and any other contents), in any way or manner whatsoever” in exchange for an “ex gratia consideration”. The contract also makes it obligatory for the producer “to accord credit to the author in the rolling credits”. Bhagat does not dispute that the producer has met the letter of the contract; he seems to complain about the producer not having met the spirit of it.
Now, legal language is pedantic, precisely because law—particularly contractual law—is more about words than spirit. Had this not been the case, William Shakespeare’s The Merchant of Venice (where Antonio goes scot-free only because Shylock’s contract doesn’t mention the blood that comes with his “pound of flesh”) would have been a lesser play.
In an attempt to understand Bhagat’s perspective, I reread a chapter of Malcolm Gladwell’s What the Dog Saw (Allen Lane, 2009) called “something borrowed”, which deals with the violation of intellectual property rights in its crudest form, namely plagiarism. While the case in question is hardly in the domain of plagiarism, I thought the chapter did have some value in this debate.
Gladwell cites Lawrence Lessig, a Stanford law professor, who says that to call copyright a “property right” is somewhat misleading. For example, if I lift your garden bench from your backyard, that is theft, because I steal it, you no longer have it. On the other hand, if I think your garden furniture is nice and buy the same brand of fixture from Ikea for my back garden, is that theft? What if I copy the jacket you wear? Exactly what do I take away from you?
In the publishing world, verbatim lifting of material borders on crime, and rightly so. But what if a borrowed idea is improved greatly into a work of art of enormous value? Gladwell quotes an instance where one of his works finds its way into a highly successful Broadway play, Frozen —without him being given any credit. Perturbed, when he finally gets hold of the script of Frozen, he finds it “breathtaking”. He says, “Instead of feeling that my words had been taken from me, I felt that they had become part of a grander cause… I considered the borrowing to be a compliment.”
Well, in some ways, 3 Idiots may be said to have done that to Five Point Someone—transforming the original work into a work of art of a higher order. What is more, when the author himself sells all his rights away to the producer for a consideration, and that consideration has been delivered, it is difficult to fault the producer even by a stretch.
Luckily, thanks to the law of unintended consequences, the controversy has surely given a significant boost to the sale of the book. Let’s also consider the counterfactual: Surely the author would not have been happier with a badly made movie which credited him up front? And surely the success of the film has not taken away from the quality of the book? So, there appears to be little case for any heartburn either for Bhagat or his well-wishers, of whom I am one (disclosure: I was his teacher and he co-authored a chapter in one of my earlier books).
What’s more, it shines some light on how we should think more deeply about both the economics and legality behind issues of copyright—a problem currently plaguing other industries, too.
V. Raghunathan is CEO of GMR Varalakshmi Foundation. These are his personal views. Comment at otherviews@livemint.com
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First Published: Sun, Jan 17 2010. 09 17 PM IST