ABSTRACT
“Copyright” is a legal right, falling under the intellectual property rights, which is given to anyone for his or her work and includes invention of all sorts like works of literary nature, symbols or phrases, and self-made designs, for a fixed period of time.
In other words, it implies that the right to copy is only available if any person takes permission of the owner of such copyright and it is the originality of the work which is a key feature in assigning a copyright to any work.
Thus, copyright is seen to exist only on expression and not on ideas and Section 13 of the Copyright Act, 1957, enshrines the works where copyright exists, such as Literary works, Drama and related works, Musical works, Artistic works, Cinematographic Films and Sound recordings.
Copyright infringement occurs when such copyrighted work is used without the prior permission of the owner and involves both intentional and unintentional uses of such work without giving any sort of credit to its owner. This paper is an emphasis on copyright infringement laws, particularly in cinematographic films, including case references of such infringement, also enlightening the issues which have given rise to various problems for the copyright owners.
This paper uses doctrinal form of research or desk research on the various secondary data available online, such as books, articles, statutes, and focuses on the definition/meaning of Copyright, copyright infringements, particularly focusing on the issues involved in cinematographic films in India. The research brings out laws relating to such cinematographic infringements and aims to describe the ambit of such films putting emphasis on the various decisions of the high courts and supreme courts in landmark cases. It also throws light on the current position of India with regard to such infringements. And lastly, the research concludes by putting in suggestions, recommendations and justifications on the nature of such rights.
KEYWORDS: INTELLECTUAL PROPERTY RIGHTS, LEGAL RIGHT, COPYRIGHT INFRINGEMENTT, COPYRIGHT ACT 1957, CINEMATOGRAPHIC FILMS
INTRODUCTION
“Copyright infringement”, as the terms suggests, is making inappropriate use of copyrighted work without the prior permission of its owner and occurs when a person either with the intention or without the intention makes copies of any work or uses the work of someone else without his or her consent or without giving that person any credit which he/she rightfully deserves. Such type of infringement is classified into two types, known as the primary and secondary infringement. Where the first type of infringement involves the actual copying of someone else’s work with or without the prior knowledge of it, while, second type of such an infringement involves unauthorised use like selling copies of work of other individuals with the knowledge of such type of infringement.
Copyright infringements in India occur due to various reasons like:
- Sale of any work already published without the consent or authority of the owner of such work
- Performance of copyrighted work in a place of public nature
- Infringing copies for personal gains
- Trade of copies of such copyrighted work
- Importing of infringed copies to India from other countries
However, there are other acts not amounting to copyright infringements and for which certain conditions are to be fulfilled. These includes using any such copyrighted work for various other purposes like in schools and also in research where the necessity to obtain any permission does not come into picture.
Footnotes-1 Section 14 reads as follows: “copyright means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following act in respect of a work or substantial part thereof, namely: – (d) in the case of a cinematograph film:(i) to make a copy of the film, including-
(A) a photograph of any image forming part thereof; or(B) storing of it in any medium by electronic or other means;(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;(iii) to communicate the film to the public;”
2 R.G. Anand V. M/s. Delux films & ors. (1978) 4 SCC 118.
3 MRF Limited V. Metro Tyres Limited CS(COMM) 753/2017.
4 Shree Venkatesh Films Pvt. Ltd. V. Vipul Amrutlal Shah & Ors., 2009 SCC Online Cal 2113.
5 Berne Convention is administered by the World Intellectual Property Organization (WIPO) and its predecessor organizations, since it was adopted in 1886.
Some such acts are mentioned below:
- One of the most important defences against copyright infringements is the making of just use as defined in Section 53 of the Copyright Act
- Connected judicial proceeding
- Performing in front of a non-paying audience by an amateur club or society
- Recordings of any nature
The importance of copyright flows from the fact that the owner of a copyright is entitled to a number of rights like producing, publishing, performing, translating, broadcasting, making copies of or making a movie out of the work and other such rights, which helps protect the creativity of such work by its respective authors.
Cinematographic films are defined under Section 2(f) of the Copyright act and states that any work of visual recording, which also includes a sound along-with such recording, shall be construed to be a cinematographic film or video films according to the provision of the act.
The two most important or landmark cases dealt with regard to infringements in cinematographic films are:
- RG Anand vs Deluxe Films case
- Star India Private Limited vs Leo Burnett Private Limited
These two cases are important because these cases not only put forward the relevance of Copyright act in cinematographic films but also the extent to which it is applied in various scenarios in India.
THEORETICAL FRAMEWORK OF THE STUDY
The following case references have been made for proper understanding of the position of copyright infringements in cinematographic films in India;
- RG Anand vs. Deluxe Films
- Shree Venkatesh Films Private. Ltd. v. Vipul Amrutlal Shah & Ors.
R.G. Anand v. Deluxe Films case
This case was initiated by R.G Anand, who was the plaintiff, filed a case against Deluxe Films, who was the defendant. The main issue in this case was regarding copyright infringement of a play by the name of “Hum Hindustani”, written and produced by R.G Anand himself, alleging that Deluxe Films had used the story of this play without taking prior permission of its author, and had thereby made a movie out of it by the name of, “New Delhi”. After the author watched the movie, he found out that it was entirely taken from his play and thus he filed a case against it.
Initially the case was filed in Mumbai High Court after which it moved to the Supreme Court of India. An injunction of permanent nature was filed on the movie, along-with damages pertaining to such misappropriation.
The judgement of this case was also remarkable because it delineated the concept of idea-expression dichotomy in a better way.
Thus, in this landmark case, the movie for which a case was filed on copyright infringement was claimed to be a former play, with huge resemblance with the original work but the following judgements were passed by the Justice in this case:
- In the judgement of the above mentioned case, the Supreme Court had held that there might be similarities that could come up in two different works since there can be no copyright in the idea or the theme of any work. And there can be no infringement if the two works have the same theme but different way of portraying the idea. Thus, in the judgement a wider meaning was given to the term ‘copying’.
- In this case it was held that such type of copyright infringement cannot subsist in similar ideas or themes. Thus, if the mode of presentation is different, one cannot claim copyright infringement.
- Works based on the same theme are bound to have similarities and such coincidental or incidental similarities cannot be deemed to be a copyright violation. Only if the works are exactly similar then only there can be copyright infringement.
- Also such claim for copyright infringement shall be made with clear evidence or proof since it might be easy to prove copyright infringement of a movie but it is not the same case where it’s a play or novel.
- It was also held that if most of the viewers recognize the movie as a copy of the play or literary work then it would be a case of copyright infringement.
Shree Venkatesh Films Private. Ltd. v. Vipul Amrutlal Shah case
This case was regarding the cinematographic infringement of a very famous Hindi (Bollywood) movie, filed against a Bengali movie, deemed to be a copy of the same. The court in this matter held that the term ‘copy’ does not only include physical copy but also the other principal factors leading to such resemblance with the original movie. The court in this matter also held the most important factor is the principle substance of the film or its basic foundation, which helps in determining whether there is an infringement or not. This change in scope of the term “copy” not only brought the laws in alignment with the Berne Convention but also resulted in better protection of one’s artistic or literary work. Thus, it was held that the term copy also has within its scope adaptations and inspirations which may be taken from any such movie.
Although it was the argued that the original movie was also a copy of an old Bollywood movie, with a similar kind of story, but because the way of portraying such movie was different, it could not be held as copyright infringement. Reference was made to the R.G. Anand case and after analysing all the facts, the judge held that all the components of a movie enjoy copyright protection, including the creators of each such work. The act made it clear that in order to establish cinematographic infringement there shall be considerable similarities between the original and the copied work, giving the term copy a wider meaning.
FINDINGS OF THE STUDY
The future of copyright in India pre supposes the provisions for anti-circumvention and Rights Management Information in the context of Indian regimes so as to introduce changes to the copyright laws. And Although India is a not a part of the WCT or WPPT, such changes might be helpful in solving the upcoming problems.
The amendments in the Copyright Act that took place in 1994 have also helped in the improvement of the situation of copyright infringement laws in India. Piracy relating to medical textbooks was one serious area of infringement before the amendment took place.
Section 64 of the Indian Copyright Act 1957 provides that no police officer below the rank of a sub-inspector may seize any such copyrighted work or articles without warrant but other officers might seize such work without any warrant if the act satisfies the conditions of an offence under Section 63 of the act, which relates to infringements. And such copies of work seized shall be produced before a magistrate as soon as possible.
The intellectuals have compared the copying of a book to be similar to stealing jewellery and the large scale copying of such books have been termed as robbing a jewellery shop by them.
Thus, as it has been mentioned earlier copyright does not protect the idea but the skills and labour put in by those authors in producing the work. And any person cannot be held liable for copyright infringement if he/she has taken only the idea involved in the work. And it is also seen that two different authors can use the same information for producing two different works with their own knowledge, just the language used should not be copied including the arrangements of information.
Thus I would like to conclude by saying that although piracy is taking place at high rates in various fields and the real owners of the various works are being deprived of the profits they deserve yet there is quite less piracy in India compared to other nation and publishers are trying their best to enforce copyrights. Particularly in books there is seen to be much less piracy than the other fields of infringements and the law is required to be tightened in such fields to curb the problems of piracy.
CONCLUSION
The various provisions of the mentioned acts and enactments prove that copyright protection is quite effective to take proper care of the rights of such copyright owners and extends not only to the traditional meaning of the aspect but also the modern aspects of the such infringements in India. Online issues have also been taken into consideration and are being protected sufficiently.
To meet the challenges imposed by the developing technologies the existing laws need to interpreted in a way so as to cover all the aspects of Copyright, which can be gained by the technique of purposive interpretation. This technique requires the interpretation of laws in a manner which ensures there is administration of justice to the facts of the case.
Also this research proposes the amendment of existing laws as per the requirements of the current situation in our country. And the study also suggests supplementation of older laws with new ones to deal with the modern or present day problems. The IT Act 2000 shall also be modified accordingly to meet the future problems or challenges inflicted by the rights called Intellectual Property Rights, and till the country develops a very strong and sound base for the protection of such legal rights, more emphasis shall be made by the judiciary for protecting the various rights of individuals, most importantly copyright.
Although, according to the afore mentioned facts, the position of our country is not in a bad situation as perceived earlier from previous resources, but there is still the requirement of minute changes in the mentioned acts which may help in tackling any such problems more effectively, hence providing a better solution. India as a nation has always been developing, the amendments in law have only brought development in the areas of concern, and it is expected to do the same in future.
REFERENCE
- Copyright Act, 1957 – An Act to amend and consolidate the law relating to copyright.
- MyAdvo has a network of best copyright lawyers in India. Start by sending us an email at info@myadvo.in or call us at +919811782573.
- Copyright Infringement By WILL KENTON Updated June 11, 2020 Crime & Fraud
- http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=394e7bf3-9764-4ae9-a530-2713b4120a89&txtsearch=Subject:%20Intellectual%20Property%20Rights
- http://www.rmlnlu.ac.in/webj/alok_kumar_ya dav.pdf
- https://www.indialaw.in/blog/blog/law/analysis-of-doctrines-sweat-of-brow-modicum-of-creativity-originality-in-copyright/
- https://info.legalzoom.com/forms-copyright-infringement-23122.html
- https://www.copyrightuser.org/understand/exceptions/quotation/
- Copyright infringement and remedies in India by Anand and Anand
- “Relevance of the R.G. Anand test and time of filing of suits for copyright violation of cinematographic films in recent times” Under the Guidance of Prof. (Dr) T. Ramakrishna, MCI Chair Professor on IPR Submitted by Sarbesh Chaudhury Intern, January 2021 Jindal Global Law School, O.P. Jindal Global University