Rock ’n Roll in Bangladesh: Protecting IP Rights across Borders
This is an abridged version of a case study written by Abul Kalam Azad, Professor of Economics at the University of Chittagong, Bangladesh, and first published by the World Trade Organization (WTO) in “ Managing the Challenges of WTO Participation: 45 Case Studies.” Professor Azad presents the case as a successful example of how international intellectual property agreements enabled a rock band in Bangladesh to challenge successfully the unauthorized use of one of their songs by a filmmaker in India.
“It’s daylight robbery in Murder, screamed a cult Bangladeshi rock band - and its plea has been heard,” wrote the Telegraph of Calcutta in its front-page story on the Hindi movie, Murder (Telegraph, 20 May 2004). Miles, a popular Bangladeshi music band had accused music director Anu Malik, a music-mogul of the Mumbai movie world, of pirating one of its original
Manam, Hamin and other members of Miles were alerted by fans that their song Phiriye Dao Amar Prem (Give me back my love) had been copied in the soundtrack of Bollywood block-buster movie, Murder. When the song Jana Jane Jana was played in the movie, the band members could hardly believe their ears. Only the language was different — Hindi. Otherwise, “the lyrics are a shadow of ours, the tune is the same. Even the beat break-ups, the use of guitar and filler notes are the same,” guitarist and vocalist, Hamin, told the Bombay Times.
The band composed the song Phiriye Dao in Bengali for their 1993 album, Prathasa (Hope). The song was also included in their 1997 album ‘Best of Miles, Vol. 1’ released by the Asha Audio Co. of Calcutta, and became very popular in both Bangladesh and West Bengal, India. “Just as Santana cannot leave a concert without performing ‘Black Magic Woman,’ we cannot conclude a concert without performing Phiriye Dao. We had planned to release the Hindi versions of our songs. The offer should have come to us,” said Hamin. The violation of intellectual property (IP) rights in the song hurt the business interests of Miles, and, by extension, of Bangladesh.
The band members contacted lawyers well versed in international IP matters and the Ministry of Commerce. Ministry officials contacted their counterparts in India, who suggested that Miles should seek redress by taking the violators of copyright to court. The main provisions on the international protection of copyright and related rights, the band learned, are contained in the Berne and Rome Conventions and in articles 11 and 14 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Miles decided to go to court.
A Calcutta law firm filed a writ petition on behalf of Miles in the Calcutta High Court on 17 May 2004 against the producer, Mahesh Bhat, and the music director, Anu Malik, of the film Murder, the singer of the song, Amir Jamal, the recording firm Saregama (India) Ltd and the audio company RPG Global Music (London). It was claimed that the defendants had collaborated on copying core elements from Phiriye Dao Amar Prem in the soundtrack Jana Jane Jana of the movie Murder. It was further claimed that the themes of the two songs were similar and their melodies identical. Even the use of chords was the same in both the songs. “This is gross infringement of the international (intellectual) property rights as well as the Copyright Act,” stated Pratap Chatterjee, the lawyer for the petitioners (Telegraph, Calcutta, 20 May 2004).
As compensation for the injury caused to the business interests of the petitioners, they demanded 50 million rupees from Anu Malik, Mahesh Bhat, Saregama India Ltd and RPG Global Music; plus total reimbursement for the expenditure incurred in filing the case. A court order was also sought for appointing a receiver or special officer to seize the entire lot of soundtrack software from Saregama’s Dum Dum studio. Besides this, the band’s lawyers demanded that the respondents “should be directed to disclose upon oath details of cassettes and CDs distributed by them to various vendors and retails.”
On hearing the petition, the Hon. Justice S. K. Mukherjee took prima facie cognizance of the matter and passed an interim order on 19 May 2004. In his learned judgment, the justice ordered the respondents to remove the song from the soundtrack of the movie Murder. The court order further barred the respondents from manufacturing, selling, distributing or marketing any music cassette or disc containing the song.
Pursuing their IP rights in court involved costs and challenges for the copyright owners in Bangladesh, including money, time, lack of information and uncertainty about the outcome. When this article was written, the band had won only the first round of the battle, and had yet to secure a verdict on the nature and amount of monetary compensation for the damage caused to their business prospects. Nevertheless, the band members were very happy with the decision of the court. “We were impressed by the promptness with which the first hearing in the Calcutta High Court was completed and the injunction order was passed. We proceeded systematically, organizing everything very carefully. We submitted the technical notations of our song and that of the “copied” song,”said the band members (Prothom Alo, 26 May 2004).
The verdict was a triumph of international IP rights treaties, which enable the nationals of one country to defend their rights across national boundaries. The case upholds the fact that IP rights, like other property rights, are inviolable. It simultaneously serves as a warning to would-be violators of IP rights, and as an encouragement to creative people all over the world by reassuring them that their creative works can be defended against piracy.
|Going the Distance|
Miles have come a long way. They started out in 1979, playing western hard rock cover versions in hotels around Dhaka, and for twelve years performed only in English. But Bangla pop was rapidly gaining in popularity across Bangladesh. “As a top band, the pressure started mounting on us - from the press, fans, audio companies - to do Bangla pop songs,” explained lead guitarist and vocalist, Hamin Ahmed, in an interview for India-today.com. “We knew that we would reach out to a much larger audience once we did songs in Bangla. We decided to do it in a slightly different way and introduced Bangla rock-fusion in our first Bangla album, Pratisrutti (1991).” The album was an instant success. The band followed it up with another hit. Prottasha (1993) sold around 300,000 copies within a few months of its release, and is still a best selling band album in Bangladesh.
The band has created its own style of music which includes elements of pop, blues, Latino, jazz and techno. “The pop/rock scene in Bangladesh is fantastic,” Hamin enthuses. “And the best part is that the audience is mature enough to understand and appreciate each and every instrument played and the intricate vocal works of a good singer. There are 50 to 60 bands in the country, including six or seven very good ones with a huge fan following. So, things are looking up and looking great.”
And why the name? “Miles represents distance,” explained Hamin. “At the time of naming the band, we knew that our journey through music is going to be a distance that will never end. So, miles and miles of music. You never stop learning, creating and never, ever, stop moving.”
Current line-up: Hamin Ahmed (guitar & vocals), Shafin Ahmed(bass guitar & vocals), Manam Ahmed(keyboards & vocals), Iqbal Asif Jewel (guitar & vocals) and Syed Ziaur Rahman Turjo (drums).
The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.