COPYRIGHT AND ITS IMPORTANCE; INTERNATIONAL COPYRIGHT and REFERNCE TO COPYING IN CINEMATOGRAPHIC FILMS

Tapajyoti Deb

CONTENTS Acknowledgement Abstract Introduction What is copyright International copyrights Minimum standards Basic concepts Work or subject matter Originality De minimus rule Types of work to be protected Authorship Public domain Rights Cinematographic films Categorization of a screenplay Altered copying Re-shooting of a film Infringement by cinematographic films Remedies Conclusions Findings and recommendation References

Acknowledgement
2| Page

In connection with the subject, I would like to take this opportunity to thank each and every lawyer for giving me an opportunity to undergo my internship programme under their respective guidance from 2ND August to 20th December, 2010 in Kolkata. It was indeed an experience and a learning process which I am sure will be very useful and beneficial for the legal studies I am pursuing at ICFAI Law School, Dehradun. During my internship with various well known and reputed lawyers, I was able to get an insight into several aspects of the legal system prevalent in the country. I would like to take this opportunity to convey my gratitude to all my seniors who helped and guided me during my stay. In this context, I would particularly like to put on record my sincere gratitudes to our project and faculty guide, Miss A. Pandey, Senior Advocate Mr. Naresh Balodia and Senior Advocate Late Partha Nath Banerjee, for their unending support extended to me during my stay in Kolkata. It was an experience I shall always cherish with fond memories of the time spent under their respective guidance. I also know that it was their initiative that permitted me to undergo this training and I shall remain indebted towards everyone for every kind and favourable considerations of my applications. Thanking you and with regards, I remain. Yours Faithfully, Tapajyoti Deb

Abstract

3| Page

Human beings possess the faculty to think and create. They exploit their creation to earn bread. Since it is the creation of their mind, it is called the intellectualproperty. Every intellectual property, which adds to the cultural, social, scientific and economic development of the society, must be protected and encouraged. The creator must be suitably rewarded for his creation by providing legal protection to the intellectual output. The intellectual property law regulates the creation, use and exploitation of mental or creative labour. It prevents third parties from unjustifiably reaping the fruits of the creative labour of the author, which they have not sown. The Intellectual Property Rights (IPRs) are the legal rights governing the use of creation of human minds. Among other components, the copyright also forms the subject matter of the IPRs. The concepts of copyright and neighbouring rights have assumed significance in the light of current scientific, economic, social, political and legal environment not only in India but also across the world. The subject matter of the copyright has increased in ambit. Earlier the scope of copyright was restricted to protection of literary and artistic works. But the contemporary regime on the copyright also includes dramatic and musical works, cinematograph film, and sound recording. Apart from that, the copyright law also covers the neighbouring rights which consist of the right of performers, the rights of producers of phonograms and the rights of broadcasting organisations. The technological inventions that took place in past two centuries have substantiated the basis for the development of the copyright law.

In present day life, the use of Copyright is one of the most important thing in order to protect any Intellectual creation like, literature, poetry, painting, photographs, diagrams, cinematographic films and sound
4| Page

recordings, etc.

Protection is to be given against unauthorized use,

infringement of right, morphing or copying of the subject. The report will deal with national and international copyrights, authorship, types of rights, certain relevant sections, and with a brief emphasis on copying of cinematographic films. Ideas are not copyright protected by the finished product are the subject matter of copyright protection. So can we say that a film is copied from another film, or it is inspired. So what is the remedy available, what are some of the precedents that we will discuss in the report. Though it is not given that what is the remedy of these type of copying of concept. Idea and the finished work both must be copyrighted, they are the inseparable duo. What is the work without the idea ? nothing. If you steal the idea that will be enough for you to make something of your own with a slight modification.

An artistic, literary or musical work is the brainchild of the author, the fruit of his labour and so, considered to be his property. So highly it is prized by all civilized nations that it is thought worthy of protection by national laws and international conventions.

Introduction
5| Page

What is Copyright? A bundle of exclusive rights in works: Copyright is the term we use for the bundle of exclusive rights which the laws of most countries confer on authors to exploit the works which they create. When we say someone has an exclusive right to do something, we mean that no one else can lawfully do it without the permission of the holder of the right. The simplest and oldest of these exclusive rights is the right of the author of a book to print copies of it. This was the right conferred by the first copyright law, which was enacted in the U.K. in 1709 and is commonly known as the Queen Annes Statute. In course of time, the bundle of authors exclusive rights has widened vastly, covering a variety of activities in respect of a variety of works. Neighbouring Rights: Besides the rights that authors enjoy in their works, there are exclusive rights that others may enjoy in respect of works or otherwise, which are called related rights or neighboring rights. These include the rights of performers and of broadcasting organisations, which we shall discuss later. A flexible and growing bundle of rights: The protohistory of copyright, goes back to the fifteenth century when, with the invention of printing, there developed in Europe a system of royal privileges or monopolies given to publishers authorising them to publish particular books. This system served the States interest in controlling what was published, but it also usually gave the holder of a royal privilege (normally the publisher) an exclusive right. From the eighteenth century onwards, the vacuum left by the abolition of the old feudal system of royal privileges was filled by conferring this exclusive right on the author (rather than the publisher) for a limited
6| Page

period of time. This happened in Britain in 1709, as we have seen. In France, the first copyright laws were enacted during the French Revolution, which also abolished the old royal privileges. The Constitution of the United States provided for both copyright and patent protection. Other countries followed suit with their own laws. The same principle came to be applied to other kinds of work, such as artistic and musical works, and to be extended to other kinds of right in them, such as the right to perform a work, or to make translations or adaptations of it, etc. Copyright has proved a very flexible, adaptable form of intellectual property protection and today copyright laws bear on virtually every form of public or mass communication, including the print media, radio and and television recordings broadcasting, of them, films, music, musical performances computer programmes,

multimedia and the internet. Our lives, both at work and at leisure, are profoundly influenced by copyrighted works: virtually everything we read is a literary work; we are continually exposed to broadcasts, films, recorded music and live and recorded performances; many of us spend a lot of time, both at work and at play, in front of computers which means we use computer programs which are a kind of literary work, and view, hear or make available to others works which might be literary, artistic or musical, or may be cinematographic (audiovisual) works or sound recordings; we surround ourselves with artistic works (a term which also covers technical drawings) and often with works of artistic craftsmanship; we live and work in buildings, which may be works of architecture. The need for copyright protection: It is significant that the Queen Annes
7| Page

Statute, described itself as An Act for the Advancement of Learning: copyright is the intellectual property right created to promote and reward the creativity of authors. There are always, no doubt, a very small number of creative people who will produce great works without considering the reward, but that is not true of most of the works that modern civilisation needs: would we have the same wealth of dictionaries and encyclopaedias, textbooks, popular novels, cookbooks, guidebooks, popular music, Bollywood films, computer software, broadcasts, soap operas, and the myriad other kinds of work we use every day, without any incentive for the authors? Further, copyright piracy not only cheats the authors and the industries that bring us their works but also the public in terms of tax revenue, and damages the quality of a society as more money enters the black economy. It pays a country to protect copyright and encourage its creative industries in order to promote both its cultural and intellectual vitality and the growth of its economy.

International Copyright: The Berne Convention: The works protected by copyright are transnational by nature; therefore, merely protecting a work in one country is not enough. From the early 19th century, bilateral agreements began to be executed between States for international protection. A movement for international copyright developed involving the leadership, among others, of the great French author Victor Hugo, and culminated in the negotiation of the first version (or Act) of the Berne Convention for the Protection of Literary and Artistic Works on September 9, 1886.
8| Page

The Berne Convention has since been revised a number of times, notably at Berlin in 1908, at Rome in 1928, at Brussels in 1948, at Stockholm in 1967, and at Paris in 1971. Some further amendments were made in 1979, but the current version of the Convention is commonly referred to as the Paris Act of 1971. A member country may accede separately to each new Act of the Convention as it is signed: thus it remains possible for a country to have acceded to, say, only the 1948 Brussels Act so far notwithstanding the subsequent execution of the 1971 Paris Act; but it would now be possible for a country that had not so far acceded to the Convention at all to accede only to the 1971 Paris Act. India in the Berne Convention: In the earlier Acts of the Berne Convention, before the 1948 Brussels Act, there was a colonial clause under which the ruling colonial powers accession applied to the areas and countries that it ruled. Thus, since Britain was a member of the Berne Union from its inception, it applied to India as well. However, the Government of India acceded separately to the Rome Act of the Convention and India has been a separate member of the Berne Union ever since. The Berne Convention is administered by the World Intellectual Property Organisation (WIP0) having its headquarters at Geneva, which is one of the specialised agencies of the U.N. The TRIPS Agreement: The environment of international copyright protection changed considerably with the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994, which required adherence to the substantive requirements of the Berne Convention and added some morethus, it described as being Berne plus. This is one of the various agreements administered by the World Trade Organisation (WTO).
9| Page

The protection of intellectual property, including copyright, is thus now treated as an issue affecting international trade. This has two important consequences: Copyright is no longer a sphere by itself; rather a countrys failure to meet the standards of intellectual property protection laid down in the TRIPS Agreement may invite sanctions going beyond the sphere of copyright or even of intellectual property. A countrys policy and its negotiating stance in respect of intellectual property issues is now but one of its counters in the wider game of international trade negotiations. How international copyright functions: The two basic principles of international copyright are:

National Treatment: This means treating foreign works as if they were national works. Thus, since India and the U.K. are both members of the Berne Union, the U.K. is obliged to give works created by Indian authors the same protection that it gives to works by British authors, treating them within the U.K. as if they were British works; and vice versa.

However there are a few exceptions to the rule of national treatment, where the alternative principle of reciprocity is applied. The main exception relates to the term of copyright. Let us suppose country A protects copyright for 70 years after the death of the author and country B for only fifty. This means that country B will protect works by authors from country A for only fifty years. Now if country A were to apply the national treatment rule, it would nevertheless be obliged to protect works from country B for seventy years. However, Article 7(8) of the Berne Convention provides an exception to the national treatment rule, laying down that the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term
10 | P a g e

fixed in the country of origin of the work.

Minimum Standards: The principle of national treatment implies that a work will enjoy varying standards of protection in different countries. To keep such variation within reasonable limits, the Berne Convention and the TRIPS Agreement require all member countries to incorporate certain minimum standards of protection in their laws. Thus the basic minimum standard for the term of copyright is fifty years after the end of the year of the authors death, and member countries must provide for at least such a term.

The copyright symbol and the Universal Copyright Convention: The origins of the symbol are interesting. One of the basic requirements of the Berne Convention is that there should be no formalities in respect of foreign authors, i.e. no author from a country of the Berne Union should be required to fulfil any bureaucratic procedure (like registration of his work) to enjoy copyright protection for it in another such country. (Of course, since it would be invidious to require formalities from ones own authors that one does not require from foreign authors, this has resulted in most countries dispensing with formalities altogether.) Now in the 1950s there were some countries, including the U.S.A., the then U.S.S.R., and a number of developing countries, which were unwilling to adopt the standards of the Berne Convention. Some of these countries (including the U.S.A.) also retained some formalities as a precondition for enforcing copyright in a work. The Universal Copyright Convention (UCC), administered by UNESCO, was negotiated in 1951 to meet the needs of such countries. It had lower standards than the Berne Convention in various ways, and it addressed the question of formalities by laying down that the use of the copyright symbol on a work would be sufficient compliance with
11 | P a g e

any requirement of formalities in another member country. Thus (India being a member of both conventions) the only legal advantage an Indian author would obtain by using the symbol on his work would be that of ensuring its copyright protection in a country that was a member only of the UCC (such as the United States until it acceded to the Berne Convention in 1976). Now that all countries that are members of the WTO are bound by the TRIPS agreement, which incorporates all the substantive provisions of the Berne Convention, the UCC and its symbol have effectively lost their earlier significance. But the symbol remains useful as an indication that the author has asserted his copyright in respect of the work on which it appears, and it continues to be used mainly for that reason. How do international conventions affect Indian law? The international conventions to which India is party are not self-enforcing in India as they are in some countries: that is, they do not automatically become Indian law that can be enforced by Indian courts. Indian courts enforce only the laws enacted by Indian legislatures and, since copyright is a Central subject in India, laws about it must be enacted by Parliament. However, where a question of interpreting our copyright law is concerned, the provisions of a relevant international convention to which India is a party may be of assistance: it is a reasonable presumption (unless the language of the statutory provision is absolutely clear to the contrary) that the legislature would not have intended to enact a law inconsistent with existing international obligations. Main text SOME BASIC COPYRIGHT CONCEPTS Works, or the subject matter of copyright:

12 | P a g e

Works, not ideas: Copyright protects works but not ideas. Neither does copyright protect mere facts: it distinguishes between a work and the mere content of a work: what it protects is the way in which the content is expressed. Therefore we often speak of an idea/expression dichotomy, a work itself being the form, such as books or other literary works, musical scores, drawings, paintings, sculptures and so on, in which the content of the work is given expression. However, we very naturally think of such a work as having a sort of core identity which remains identifiable despite a certain amount of change or adaptation; otherwise it would be difficult to give it much effective protection. A work which reproduces another substantially does not become an original work merely because of superficial or cosmetic departures from the original, if it is apparent that it has been copied from another: such copying is called non-literal copying. These concepts are important when a Court has to consider whether someones copyright has been infringed: did the alleged infringer copy the work, i.e. the expression created by another author, or did he create his own work merely using some of the same ideas and factual content? Cases: Baker v Selden 101 U.S. 99 (1879) Hollinrake v Truswell 1894 3 Ch 420 Kenrick v Lawrence (1890) 25 Q.B.D. 93 R.G. Anand v M/s. Delux Films AIR 1978 S.C.1613 Fixation: The work we are speaking of is not the same thing as its physical vehicle or container: it is a piece of intellectual, not physical property. When you buy a book or picture or a CD you may become the owner of a
13 | P a g e

piece of physical property but you will not become the owner of the intellectual property rights in it: you cannot exploit the work by making more copies of it and selling them, and so on, unless the author specifically assigns these rights to you or licenses you to do so. So we have to think of the work as something immaterial, existing independently of its different physical copies. In principle, thus, a work need not exist in any material form at all. However the laws of many countries do require, for essentially practical reasons, that to qualify for copyright protection a work must have been fixed in material form (though not necessarily by the author) e.g. a literary work should have been written down or a musical work recorded in notation or otherwise. Article 2.2 of the Berne Convention leaves it to national laws to determine whether or not to require fixation in material form. The Copyright Act, 1957 does not specifically require fixation of the work as a precondition of protection. But in most cases, in practice, it would be difficult to pin down the identity of a work, and consider an allegation of infringement, if the work had not been fixed in material form. Originality: Copyright protects original works. This only means that to enjoy copyright in a work its author should have created the work rather than reproducing another work. It does not mean that the work has to be very novel or innovative: so we say that the standard of originality required for copyright protection is low. An author may borrow ideas and obtain factual content from any source including the works of other authors, but if an author gives expression to such facts and ideas in a new work, it is an original work: for example this course material contains no new ideas and no facts which will not be found in other, existing published works, yet it is an original literary work.
14 | P a g e

If a work could be expressed in no other way, so that there is a convergence between its content and its expression, it may not be protected by copyright. This is sometimes called the merger principle. CASES. Cf Baker v Selden, Hollinrake v Truswell

We may pause to consider why copyright protects original expression rather than content.

Patent laws do indeed protect ideas, but only very specific ones which are innovative and have an industrial application, besides being nonobvious, and the authorities concerned follow an elaborate procedure to determine the patentability of an invention. In the case of works protected by copyright, it would seldom be practicable to identify original ideas--or the provenance of facts--with any degree of certainty. Nor, assuming it were possible, would such a thing be at all desirable: it would obviously make it nearly impossible to produce an original work.

There has to be some minimal creative, intellectual contribution in the arrangement or presentation of material to make something qualify as an original work.

Recently, the Supreme Court of India in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 held the as far as he judgments of Courts are concerned, there cannot be any claim as to copyright as the same is already in the public domain. In most cases there is unlikely to be much serious difference of opinion about this, but there are marginal cases (like a telephone directory) where courts may take differing views of the matter in different countries, or at different times. CASE: Feist Publications, Inc. v Rural Telephone Service 490 U.S. 340, 111 S.Ct. 1282, L.Ed.2d 358 (1991) The degree of intellectual contribution required may also vary somewhat according to the nature of the work: for example, questions are more likely to arise as to whether or not a particular article of everyday use
15 | P a g e

qualifies for protection as a work of applied art, or a particular building as a work of architecture, than in many other cases. Since it is usually difficult to prove the actual act of copying, the courts have to consider the similarities between works to decide whether a work is original or has been copied from another. As a general rule, the courts will consider the overall impression created by two or more works to decide whether a work is original or is the reproduction of another. CASES University of London Press v University Tutorial Press (1916) 2. Ch 60101 Interlego v Tyco Industries (1988) R.P.C. 343 (J.C.) The De Minimus rule: Though a work might be very brief, some things are regarded as insufficiently substantial to be treated as works. Thus a string of just a few words, or the title of a work, or a name, would not normally be regarded as a work qualifying for copyright protection (though an attempt to mislead the purchaser of a work may attract other legal remedies). CASES Francis Day and Hunter Ltd v Twentieth Century Fox Corpn Ltd [1940] A.C. 112 Exxon Corp. v Exxon Insurance Consultants (1982) R.P.C. 69 (C.A.) Types of work protected by copyright: Literary and artistic works in general: The Berne Convention term literary and artistic works is defined very inclusively in Article 2. The laws of some countries provide similar inclusive or open-ended definitions, but those of others, including India, provide exhaustive
16 | P a g e

definitions: thus in our Copyright Act the statute states exactly which kinds of work are protected and, if a new kind of work comes into existence, the legislature may have to amend the statute to cover it. It is not unusual for several different copyrights, whether pertaining to different authors or the same one, to subsist in the same composite work. Two obvious examples are illustrated books (which contain both literary and artistic works) and songs (which comprise both literary and a musical works.) There are also many cases where a separate copyright subsists in the composite work itself: the case of anthologies and compilations will be referred to below; and consider the case of the photograph of an engraving of a painting! A cinematographic work is another obvious, and more common, example.

Article 2(3) of the Berne Convention specifically confers a separate copyright on derivative works, described as translations, adaptations, arrangements of music and other alterations of a literary or artistic work.

The precise list of copyrightable works varies in different countries.

Thus the laws of some countries treat sound recordings as works protected by copyright, over and above any copyright in the recorded work, but in other countries these are protected by means of a neigbouring right. Again in some countries, either by means of judicial decisions or by new legislation, computer programs came to be protected as literary works much before this became the international norm. Digital technology and new kinds of work: With the advent of digital technology some new types of work came into being and questions arose about how, and to what extent, they should be protected: Computer programs have some of the characteristics of a literary work but are not written to be read directly by another person; rather
17 | P a g e

a computer program is a set of instructions for a machine. The question of a new, sui generis form of protection was seriously considered in the 1970s, but copyright protection became the norm. The TRIPS Agreement requires that Computer program, whether in source or in object code, shall be protected as literary works under the Berne Convention. Works protected under the Copyright Act, 1957: Section 13 of the Act specifies the classes of works in which copyright subsists. These are (a) (b) (c) original literary, dramatic, musical and artistic works; cinematograph films; and sound recordings. Literary works include computer programs, tables and compilations including computer databases (section 2(o)). The basic form of literary work is something textuala piece of prose or verse, but this inclusive definition extends it to certain other things. A dramatic work typically involves not merely dialogue but a series of incidents and situations; the definition extends to the whole composition of arrangements for presentation on the stage, both visual and aural. This is an inclusive, not an exhaustive, definition: it does not exclude the script of a play or the screenplay used for a cinematograph film, but such works being textual in character are in any case concurrently protected as literary works. In this case, the law specifically requires fixation of the work; a dramatic work would conventionally be fixed in material form by a combination of text and drawings or other graphic images, but an audio-visual recording would also amount to fixation. Musical work is defined in section 2(p); it means a work consisting of
18 | P a g e

music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. This simple definition requires no further comment here, except to say that it was introduced by the amending Act of 1993 to replace an earlier definition which extended protection only to the notation in which (mainly Western) music is recorded, which did not suit the needs of Indian music. Artistic work. The definition in section 2(c) is exhaustive, not inclusive, and lists three kinds of artistic works: (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality It is not difficult to identify something as a painting, sculpture,

drawing, engraving or photograph. The important point about them is that artistic quality is immaterial. The Act does not say this about the other kinds of artistic work discussed below. Section 2(za) clarifies that a work of sculpture includes casts and models. (ii) a work of architecture. This term is further defined exhaustively in section 2(b) as any building or structure having an artistic character or design, or any model for any such building or structure. Thus, every building or structure is not protected by copyright. There has to be some original element in its design which may be described as having artistic character. This might be in the form of the building, the way its spaces are arranged, and/or in its ornamentation. But we must remember that (i) the standard of originality remains a low one and (ii) artistic character does not mean artistic merit: an architectural work that most people think is ugly might still be protected by copyright. Section 13(5) further clarifies the nature of a work of architecture by
19 | P a g e

laying down that copyright shall subsist only in the artistic character and design and shall not extend to processes and methods of construction. (iii) any other work of artistic craftsmanship. This means something that is not a painting, a sculpture, a drawing, an engraving, a photograph or an architectural work, but which nevertheless displays some artistic craftsmanship. Works of artistic craftsmanship may include such everyday useful objects as furniture, pottery, cutlery, jewellery, etc. Here the possession of some artistic quality or character is vitally important to distinguish a copyrighted work from objects not protected by copyright. This does not mean it must have artistic merit, but that its design involves some artistic feature or characteristic that does not arise purely from the use for which the object is intended. However the law of copyright is not intended to protect mass-produced useful objects, even if they possess original artistic character. The artistic design features of a useful object are normally capable of registration under the Designs Act. Under section 15 of the Copyright Act, copyright protection ceases if the copyright owner makes or authorises the making of more than 50 copies of such a design by an industrial process; the protection available in such a case would be that provided by the Designs Act. Authorship: Authorship and the two approaches to copyright: The Berne Convention nowhere defines or identifies the author who is intended to be its principal beneficiary. This is so by design, not omission, for agreement on the subject cannot be reached. This is the most fundamental point of divergence between two approaches to copyrightcommon law and civil
20 | P a g e

lawthat have existed from the beginnings of copyright. The common law countries are those which have inherited from English law the body of case-law that is known as the common law; this includes as a general rule all those countries that were ever under British rule, starting with the United States. India is, obviously, one of the common law countries. It is important to always bear in mind that what we are speaking of are two different trends or tendencies of thought, not two explicitly formulated contradictory doctrines. Simplifying, even to the point of caricature, we might characterise these two approaches as follows: Civil law approach: Authors have an inherent, natural right over their works, which are but emanations of their unique human personalities; this is the primary justification of copyright which must not be diluted by concern for secondary interests (like those of publishers or other entrepreneurs) howsoever important. Common law approach: Copyright is a right conferred by the State in order to financially reward the people (individual authors being of course the most important) who give us works of different kinds; it provides an incentive and a reward for their creativity and hard work, including the entrepreneurial contribution of publishers, producers and the like. Such a benefit should ideally be conferred to the extent, neither more nor less, that appears optimal, keeping in view the interests of all those involved in making works available to the public. The civil law notion of authorship makes it difficult to allow a company or other juridical person, or someone like a film producer or producer of phonograms, to claim to be an author. This is not a problem for the common law countries. Thus the civil law countries do not treat sound recordings (or phonograms) as works both because (a) the author would have to
21 | P a g e

be a producer, usually a company, and (b) because the recording of sounds for a phonogram, though it may require great professional skill, seems to lack the necessary element of personal creativity. They do protect phonograms, but they call it a matter of neighbouring rights rather than of copyright. The common law countries have no such difficulty in treating the producer of a sound recording as an author and in treating sound recordings as works or as subject matter for copyright. There is no dispute that a cinematograph film is a work deserving of copyright protection. But who is its author? o Article 14(2) of the Berne Convention leaves the question to national law, but requires that if sundry contributors are granted part authorship they should not be in a position to prevent exploitation of the film (by the producer). o In common law countries (like India) we treat the producer (individual or company) who brings the film into existence as its author. o Civil law countries are unwilling to treat the producer of a film as its author but have created various legal fictions to safeguard the producers interests. Authorship under the Copyright Act, 1957: Section 2(d) of the Copyright Act defines what the term author means in relation to different kinds of work: In relation to a literary or dramatic work, the Act does not give any special definition, nor is one necessary. The author of a musical work is the composer. Section 2(ffa) defines the composer as the person who composes the music regardless of whether he records it in any form of graphical notation. The author of an artistic work other than a photograph is the artist. This refers to the person who paints a painting, who sculpts a
22 | P a g e

sculpture, who draws a drawing or who engraves an engraving. The author of a photograph is the person who takes the photograph. The author of a cinematograph film or sound recording is the producer. A producer in this context is defined in section 2(uu) as the person who takes the initiative and responsibility for making the work. As we have seen, the producer of a film or sound recording under our law may be either a natural or a legal person. The author of a literary, dramatic, musical or artistic work that is computer generated is the person who causes the work to be created. In all cases, a person has to create an original work, in the copyright sense that we have discussed, in order to enjoy the rights of an author in it. Authorship and the ownership of copyright: The essential purpose of copyright is, subject to the interests of the public, to protect the interests of authors in relation to their works. Normally, the author is the first owner of copyright, and he may exploit the work by assigning it, or by licensing the use of it, to others. However, in certain circumstances, the law may provide for some other person (natural or juridical) to be the first owner of copyright. In India, section 17 of the copyright provides for the following cases where (in the absence of any agreement to the contrary) the first owner of copyright is someone other than the author: If an author creates a literary, dramatic or artistic work in the course of employment in a newspaper, magazine or similar periodical, which is for the purpose of publication in the periodical, then the proprietor is the first owner of copyright for the purpose of such publication, though not for other possible uses of the work.

In the case of certain commissioned worksviz. a photograph,

23 | P a g e

painting or portrait, or engraving or cinematograph film made for valuable consideration at the instance of another personthe first owner of copyright is the person commissioning the work, not the author. In all other cases where the author creates the work in the course of employment, i.e. where he creates it while performing the job for which his employer has hired him, the employer is the first owner: in other words, the limitation on the employers ownership in the first case of above would not apply where the employer is not a newspaper or periodical. The person who delivers a speech, or where the speech is read out by someone else then the person on whose behalf it is delivered, is the first owner of copyright, no matter who actually drafted the speech. In the case of works published by or under the direction or control of the by Government, the or a Government section undertaking, 41) the Government or company or statutory body, or an international organisation notified Government (under Government corresponding employer is the first owner of copyright. In all the above cases, it should be borne in mind that what has been said is subject to any contractual agreement to the contrary: thus it is possible for an author to protect his rights, subject to what the other party will agree to, by negotiating an agreement under which he retains copyright.

The public domain We have, all this while, been considering works protected by copyright. It is worth reminding ourselves how much of the intellectual and cultural wealth of humankind lies in works which are not so protected. This is called the public domain.
24 | P a g e

Much of it was created before there ever was such a thing as copyright and much has fallen into the public domain after the term of copyright expired.

Much of it is folklore without an identifiable author. It is usually considered both natural and desirable that works in the public domain should be freely available not only for reproduction but for adaptation and other forms of exploitation for the creation of new works which, if they meet the test of originality, will enjoy copyright. [Eastern Book Company v. D. B. Modak, (2008) 1 SCC 1]

Once a work falls into the public domain, and has been exposed to such use as well as direct exploitation, it is not considered appropriate to bring it back within the sphere of copyright protection: thus Article 18 of the Berne Convention provides that when a country accedes to the Berne Convention the Convention shall apply only to those works which have not yet fallen into the public domain.

We shall be discussing the term of copyright in Part 1.4 .

RIGHTS We have been considering the subject matter of copyright. It is now time to consider its real substance, which is the exclusive rights it enables an author to enjoy in respect of his work. Section 14 of the Copyright Act, 1957, which lists out the rights conferred by the said Act, is entitled The meaning of copyright. These exclusive rights are negative in character, in that the authors exclusive rights enable him to prevent others from exercising them without his consent: his own right to circulate or exhibit his work must remain subject to national law or regulation. (Berne Convention, Article 17) Thus if the Government of the authors own or another country bans the circulation of a book, this will not be regarded as infringement of the authors copyright.
25 | P a g e

The authors exclusive rights are, further, grouped under two major heads, economic rights and moral rights. The term copyright as used in the Copyright Act, 1957 and defined in section 14 is limited to the economic rights; moral rights are provided for separately in section 57 as the authors special right. Section 14 of our Act covers all the economic rights provided for in the Berne Convention and the TRIPS Agreement except for droit de suite, which is an optional right but which is provided for in section 53A of our Act as the resale share right. (We are of course speaking here of copyright and not of the neighbouring rights covered by the TRIPS Agreement, which will be discussed separately.) The right of public performance. The exclusive right to authorise the public perfomance of a work (Article 11), including a translation of it, is of very basic importance to the authors of those worksdramatic, dramatico-musical or musical which are created primarily for such performance. It is also very relevant to literary works (though in their case the Berne Convention calls it a right of public recitation) and (Article 14) cinematographic works.
o

The question as to what constitutes a public performance is very important, as there is no restriction on private performances. This has been left to national law, but it is generally understood that by a private performance we mean one before an essentially domestic circle of family and social acquaintances. The mere fact that the public does not have free access to the venue of the performance is not sufficient to characterise it as a private performanceconsider, for example, the case of a hotel, or a hostel or hospital, making a performance available through video to its guests or inmates in a lounge, or even in the privacy of their rooms: it would not be usual, nor would it be reasonable, to treat this as a private performance.

26 | P a g e

Though it is not yet a requirement of any international

convention, some countries provide for a right of display of artistic works in public.

The broadcasting right: Article 11bis gives authors the exclusive right to authorise the broadcasting of their works by radio or television, or their communication to the public by wire. This right extends to rebroadcasting and communication of the broadcast to the public by other means like loudspeakers: thus the fact that an author has authorised a broadcast does not authorise, say, a shopkeeper or restaurant owner to attract custom by making the broadcast available by such means. The broadcasting right may, however, be subject to a compulsory license.

Droit de suite: This right, provided for in Article 14ter, is optional for member countries. Where conferred, it gives the author of an artistic work an inalienable right to an interest (as determined by national legislation) in any subsequent sale of the original work. Thus a struggling young artist who sells his work cheap may hope to.

Moral rights In countries of the civil law school, copyright has tended to be seen fundamentally as a matter of the human rights and dignity of the individual authorthe French term for copyright means literally authors right. An authors work is thought of as an extension of his unique personality, therefore it is not enough to see that he is compensated for its exploitation materially: his enduring spiritual link with the work of his creation also has to be respected and safeguarded. Article 6b of the Berne Convention reflects this approach; it is interesting that some major countries of the common law school still do not
27 | P a g e

provide for moral rights in their copyright laws, but meet their obligations under this article by virtue of remedies available to authors under their general law relating to such matters as contract, unfair competition and defamation.

The right of paternity: This is the right to claim authorship of the work; exercise of this right involves the authors right to have his name appear at an appropriate place on copies of the work (or not appear on them if he prefers anonymity or the use of a pseudonym) and a right to prevent others from claiming authorship of his work. His authorship must also (under Article 10(3)) be acknowledged in the case of quotations from, or other free use of, his work.

The right of integrity: This is the authors right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would be prejudicial to his honour or reputation. This does not give the author a free hand to object to any alteration, adaptation or editing of his work but only to those which are considered (by the author and then the court) to be derogatory to the work and prejudicial to his honour and reputation. It is not always a simple matter of preventing mere malicious acts, rather works may be altered merely in an effort to ensure their continued marketability. We may also note that the integrity right has grown in importance with the greater potential for manipulation of a work by digital means: as we shall see, a moral right for performers has been justified largely on this ground.

Moral rights independent of economic rights: Moral rights being necessarily of a character personal to the author, he retains them even if he has transferred his economic rights. He must certainly retain them during his lifetime; countries which do not provide for a longer term at the time of accession to the Convention are exempt from the normal requirement that moral rights shall be maintained at

28 | P a g e

least until the expiry of economic rights. (This exemption was necessary because, as we have seen, some countries provide for moral rights indirectly through their existing laws; the remedies available under such lawsfor example of defamation may not be available after the authors death.) It should be added here that moral rights are regarded as inalienable in some countries, though not necessarily so in others.

Other moral rights: The two rights incorporated in Article 6bis are by no means the only possible moral rights. One which was originally proposed, but which it was not found practicable to include in the Berne Convention was a right of divulgation i.e. an authors right to decide when and how his work should be made public. Further, under some national laws, an author has a right to withdraw a work even after it has been published.

Section 57, Copyright Act: Section 57 of the Copyright Act, 1957 provides for the two forms of moral right mandated by the Berne Convention in substantially the same terms as the Convention. Under our Act, these rights are termed the authors special right, the term copyright being reserved for economic rights. We may note the following additional points about this provision: The right of integrity may be exercised only before the expiration of the term of copyright, but there is no such restriction on exercise of the right of paternity. Failure to display a work, or to display it to the authors satisfaction, is not an infringement of the authors special right (Explanation to section 57). The most obvious application of this is to artistic works: a painter or sculptor, for example, would not be able to complain that his work had not been displayed, or displayed with sufficient prominence, by the owner of the original or any copy of it. The adaptation of a computer program to utilise it for the purpose for

29 | P a g e

which it was supplied (interoperability) or for purposes of backup would not infringe the authors 2) It is not in the interests of the public at large for works to be kept out of the public domain for longer than necessary. It may also be argued, between the two positions, that what is really desirable is consistency between the laws of different countries, whatever the term of copyright. The term of copyright under the Copyright Act, 1957: Chapter V (sections 22-29) of the Copyright Act, 1957 deal with the term of copyright. Needless to say, the term of copyright begins the moment a copyrighted work is created; these provisions lay down the rules for determining when copyright in a work ends and it falls into the public domain. Literary, dramatic, musical and artistic works (except photographs): The term is generally sixty years from the beginning of the calendar year next following the year in which the author dies: thus if an author dies on 2nd January 2010, the term of copyright will continue for sixty years from 1st January 2011, i.e. until 31st December 2061. If there are two or more authors, i.e. it is a case of joint authorship, the above term will be determined by the date of death of the author who dies last. If the work is published pseudonymously or anonymously, the period of sixty years will be counted from the beginning of the calendar year next following the year of publication. But if the identity of the author of such a (pseudonymous or anonymous) work is disclosed before the work falls into the public domain, the term will be the usual one for known authors. If such a (pseudonymous or anonymous) work is a work of joint authorship, and the name of one or more of such authors is disclosed before the work falls into the public domain, then copyright continues for
30 | P a g e

sixty years from the beginning of the as a work; whether it shows sufficient intellectual contribution for the purpose must remain a question for the courts to consider in a particular case. Article 10(1) permits the reproduction of extracts (not necessarily verbal) from a work already lawfully available to the public if (a) they are compatible with fair practice and (b) they are not longer or larger than necessary. An author can fairly use extracts from the work of others to bring home or illustrate a point, not as a substitute for his own labour or want of ingenuity. Exceptions left to national legislation: Article 9(2) leaves it to national legislation to allow the reproduction of protected works in certain special cases subject to two further conditions, (a) that it does not conflict with a normal exploitation of the work and (b) that it does not unreasonably prejudice the legitimate interests of the author. o The most obvious example that will spring to mind is the reproduction of a work, or part of a work, for ones own private reference or use. o Normal exploitation means the ways in which the author is normally able to use his copyright: a novel is exploited by allowing the publication and sale of copies of it, or permitting a film to be made of it; a cinematograph work in turn is normally exploited by showing it in theatres, selling video rights and allowing it to be broadcast and transmitted by cable, etc.
o

The term unreasonable prejudice implies that some prejudice is inevitable, and therefore that it should be minimized, e.g. by restricting the number of copies that may be reproduced, etc. The national legislature is obliged by the Convention to consider these factors while enacting legislation on the subject.

Besides this general provision, the Convention also leaves certain kinds of limitation on exclusive rights specifically to national legislation, viz.
31 | P a g e

the reproduction of official texts (like laws and other official documents like legislative and court proceedings etc.); political speeches and speeches delivered in the course of legal proceedings; public lectures, addresses and other works of the same nature; articles on current economic, political or religious topics which have already been published in newspapers or broadcast; the reproduction of works seen or heard during an event, for the purpose of reporting the event; and the use of works by way of illustration for purposes of teaching, if justified by the purpose and compatible with fair practice.

Fair dealing or fair use in the common law countries: Discussion of the subject would be incomplete without reference to these terms the former British and the latter Americanwhich are commonly used and widely understood in the common law countries. They broadly cover the kinds of cases we have been discussing, establishing principles of fair play through a considerable body of case law.

Limitations on exclusive rights under the Copyright Act, 1957 (section 52): Section 52, entitled Certain acts not to be infringement of copyright is the longest section in the Copyright Act, far longer than section 14, which enumerates the exclusive rights of copyright owners. Sub-section (1) lists the non-infringing acts while sub-section (2) extends the applicability of the exceptions listed in sub-section (1) to the same acts if done in relation to a translation or adaptation, as may be the case, of a literary, dramatic, musical or artistic work.

The length of section 52 does not mean that there are too many exceptions, but is merely because, while the rights conferred are general in nature (like the right to reproduce a work in material form), the exceptions have to be specific (like the right to reproduce

32 | P a g e

a work for personal use, or the use of a legislature or a court, etc) and, therefore, have to be spelt out in full.

Fair dealing: The term fair dealing is used in clauses (a) and (b) of sub-section (1). The American term fair use , which is often used in discussion of copyright law, is interchangeable with fair dealing.

This is a general term, developed through case law, for cases where an author uses another work, not to exploit the latter directly but to make an acceptable use of it for the purposes of his own work; it would not be fair dealing to use so much of the other work, or to use the other work in such a way, as to create a substitute for it. Examples of such fair dealing include the use of quotations or extracts to illustrate or corroborate a point being made in ones own work: but a line would have to be drawn between this legitimate activity and the inclusion of extracts from anothers work as a substitute for creating ones own expression. Another long-established form of fair dealing is parody: this is a legitimate form of criticism, a parody is very much an original work, yet by its very nature it must make use of the work parodied. Section 52 should be referred to in detail. include: The exceptions it lists

Fair dealing for private use including research, criticism or review, for reporting current events, etc. In the case of computer programs, for purposes of interoperability, reverse engineering and back-up; and any copies made for personal, non-commercial use. Reproduction for the use of courts and legislatures; the reproduction of public notifications; the reproduction of Acts of legislatures with commentary. Use in educational institutions or in the course of education, in the
33 | P a g e

specific cases spelt out in section 52. Cover versions referred to in section 52(1)(j); this is discussed further below. The playing of sound recordings as a common facility in non-commercial places of residence or non-profit clubs etc.; amateur performances for non-paying audiences; similar acts in the course of official functions. The two-dimensional reproduction of architectural works and of other artistic works if they are permanently situate in public places. Various other uses of copyrighted works. The above list is purely descriptive and, further, it should be noted that the precise scope of exemption would be limited strictly to the actual language of the statute, which must be referred to.

Cover versions (section 52(1)(j)) are an example of a statutory licence: i.e. an instance where the law itself confers a licence for the use of a copyrighted work in certain circumstances, and subject to certain conditions,. As the provision has been controversial in India, it merits some discussion here.

To understand the background, we may refer to Article 13(1) of the Berne Convention, which reads as follows: Each country of the Union may impose for itself reservations and conditions on the exclusive right granted to the author of a musical work and to the author of any words, the recording of which together with the musical work has already been authorised by the latter, to authorise the sound recording of that musical work, together with such words if any; but all such reservations and conditions shall apply only in the countries which have imposed them and shall not, in any circumstances, be prejudicial to the rights of those authors to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority. Under section 52(1)(j), if a sound recording of the work has been made with the consent of the rights owner, then another person intending to make another sound recording of it has only (subject to certain
34 | P a g e

conditions that will be discussed below) to give the rights owner notice of his intention, provide him with copies of all covers and labels, and pay royalty as prescribed by the Copyright Board. The rationale for this provision is that once a sound recording of a musical work or of a songwhich is a musical work (the tune) combined with a literary work (the lyric)has been published, others should be able to record other performances of the same music or song and sell such recordings; they must pay a royalty to the copyright owners but should not be prevented from making such cover versions and it must be reasonably convenient for them to do so. This is one of the ways in which copyright law seeks to balance the interests of rights holders with those of the general public: popular songs are part of the common popular culture and to that extent may be thought of as belonging in some sense to the public, even though they may not have fallen into the public domain. The same objective can be achieved without a statutory licence if there is an effective copyright society from which licences for cover versions can be obtained without undue difficulty. This is the case in many countries. However in the United States as well as in India, the statutory licence for cover versions continues. In India the main criticism of the provision is that it is misused: the makers of the cover version may (and in fact often do) grossly understate the number of copies they intend to make, and thus fail to pay proper revenue. They also sometimes mislead the public into buying their product under the impression that it is the original version. Some safeguards, to deal with this, are built into the statute: no misleading labels or packaging; no cover version until two years after the first recording; the rights owner is allowed to inspect the records and
35 | P a g e

accounts of anyone making cover versions; and recourse to the Copyright Board.

REFERENCE TO CINEMATOGRAPHIC FILMS Bollywood directors have forever aped Hollywood storylines. Western studios have belatedly woken up to this trend and started threatening Bollywood directors with copyright infringement lawsuits. This article refers to English and Indian law and examines the ways in which filmmakers who copy storylines can be sued for copyright infringement. The author argues that copyright lawsuits against Bollywood could indirectly benefit the gifted yet neglected Indian directors outside the Bollywood genre. There is a huge list of Bollywood movies which are scene by scene copy of Hollywood movies. And some others stole the concept and modulation. Agneepath(Scarface) , Sholay(Seven Samurai), Ek Ajnabee(Man on Fire), Murder(Unfaithful), Ghajini(Memento), Kaante(Reservoir Dogs), Rajneeti(Godfather), Sarkar(Godfather), Knock Out(Phone Booth), Action Replay(Back To The Future), Fool and Final(Snatch), Awara Pagal Dewana(The Whole Nine Yards),
36 | P a g e

Shaurya(A Few Good Men), The Killer(Collateral) , Main Aisa Kyun Hoo(I Am Sam), BIchoo (Leon), Bluffmaster(Matchstick Men).and the list goes on. And most of the copied and inspired movies are big hits and have earned huge money. Indias film industry is frequently typecast by the term Bollywood, a word apparently coined by a British detective novelist. But this is a misleading characterisation. Bollywood movies are usually kitschy musicals made in Hindi, a language not native to a sizeable chunk of Indias population. In reality, many Indian movies are neither musicals nor in Hindi. Critics have scoffed at Bollywood films for their hammy acting and extravagant themes. Bollywood has also been criticised for its blatant copying of Hollywood storylines, a trend that occurs partly because Indian audiences are unfamiliar with international films. For many years, India has extended copyright protection to foreign works in accordance with the principles of national treatment. Yet, somewhat inexplicably, Western studios have ignored numerous opportunities to sue Bollywood filmmakers for copyright infringement. However, two developments of the past year suggest that this inertia could now cease. In April 2009, Warner Brothers published a notice in a leading Indian newspaper saying that it would pursue legal action against anyone making a film having a similar script, screenplay or story line or character sketches or interplay of characters or sequence of events as The Curious Case of Benjamin Button. The notice was issued after press reports alleging similarities between the storylines of Benjamin Button and the upcoming Bollywood film Action Replay (later reports, though, claimed that Action Replay has actually borrowed the storyline of Back to the Future ). Soon after this incident, Twentieth Century Fox sued a Bollywood studio for allegedly making a movie with a script and storyline that was virtually identical to that of My Cousin Vinny. Fox sought damages worth INR 70,000,000 (over 1 million) but eventually
37 | P a g e

accepted INR 10,000,000 (approximately 150,000) in a settlement. THE TROUBLE WITH BOLLYWOOD In British India, the government-appointed Indian Cinematograph Committee (ICC) presciently discerned an aesthetic divergence in Indian cinema. The ICC felt that Bombay productions were not faithful to Indian life. These productions indulged in crude imitation and showed a tendency not only to borrow plots and incidents from Western novels, but also to imitate the Western films both in action and treatment. However, the ICC found Bengali movies to contain a more intellectual appeal. The storylines of Bengali movies were derived not from Western movies or novels but from the peculiarly rich literature of Bengal. In the 1950s, the divide between Bengal and Bollywood took an acrimonious turn with the release of Pather Panchali, the debut film of the Bengali director Satyajit Ray. Pather Panchali received worldwide acclaim and a critics poll by the British Film Institute once rated the movie as the sixth-greatest of all time. However, sections from Bollywood had objected to Pather Panchali being sent to the Cannes Film Festival. The film was sent only after the Bengal government, which had also funded the film, persuaded the then Indian Prime Minister Jawaharlal Nehru to intervene. Much of the opposition to Pather Panchali had to do with the fact that it told the story of a poor rural family. Nargis Dutt, a renowned Bollywood actress, famously blamed Ray for tarnishing Indias image. Dutt alleged that she had been asked embarrassing questions about India on her trips abroad because of Rays film. More recently, Dutts views were echoed by Amitabh Bachchan, perhaps the most famous actor in Bollywood history. Bachchan denounced critics for fawning over Ray but having not a word of appreciation for Bollywood. Ray who, ironically, ending up making more movies about urban middle-class India undoubtedly portrayed Indian society more
38 | P a g e

realistically than Bollywood. A group of critics had rightly responded to Dutts diatribe by saying that Bollywood cinema could hardly be called representative of Indian life. Another critic similarly rebutted Bachchan by pointing out that Rays movies were more realistic than those with songs and dances entirely shot near London Bridge and Swiss Interlaken. Indisputably, international film awards are biased towards movies that are realistic (or, at least, more realistic than Bollywood movies). The only Indian director to have received an Oscar is Ray (Lifetime Achievement, 1992). At the Cannes Film Festival, the few Indian movies which have won laurels have invariably been nonBollywood movies. The Bengali director Mrinal Sen has been nominated on multiple occasions for the Golden Palm and one of his films received the Jury Prize in the early 1980s. The Malayalam director Murali Nair won the Golden Camera at Cannes in 1999. The last Indian film to have been nominated for the Golden Palm was also another Malayalam movie (Swaham, 1994). At the Berlin Film Festival, only Ray has won the Golden Bear (1973) and Sen once received the Jury Grand Prize (1981). At the Venice Film Festival, only two Indian films, both outside the Bollywood genre, have won the Golden Lion Rays Aparajito (1957) and Mira Nairs English-language movie Monsoon Wedding (2001). In recent years, the Indian judiciary has been twice dragged in as an unlikely arbiter in the battle between Bollywood and non-Bollywood cinema. The first case concerned the National Awards, a prestigious set of cinematic accolades awarded by the Indian government. A jury member petitioned the Delhi High Court to stay the announcement of the Awards. The member had objected to the jurys decision to bypass certain non-Bollywood films in favour of a Bollywood film whose storyline was similar to that of the Oscar-winning film The Miracle Worker. The petitioners case was procedural in nature and centred on the fact that the jury had allegedly disregarded her note of dissent. The Court declined to quash the jurys decision, reasoning that the petitioner was the lone dissenter.
39 | P a g e

A few months after this case, a director petitioned the Bombay High Court challenging the FFIs decision to send the Bollywood film Eklavya as Indias entry to the Oscars. The petitioners film an official selection for the Cannes Film Festival had also been on the shortlist. The petitioner alleged strong affiliation between the makers of Eklavya and the FFI. The Bombay High Court found prima facie merit in the petitioners allegations and suggested that the FFIs selection process could invite judicial review if it was found to be biased. However, the petitioner withdrew her case after the deadline for submitting films to the Oscars had passed. The expiry of the deadline meant that no film other than Eklavya could have been sent to the Oscars and the case would have merely been of academic significance had it gone ahead. The legal justification for suing Bollywood can be traced back to an extraneous observation made by Khosla J, as chairperson of a committee which studied censorship laws. Khosla J rationalised that the reason Bollywood makes cheap copies of foreign movies is that copying saves them the labour involved in thinking and creating something new. A fundamental justification of copyright law is to protect the intellectual labour expended by creators. This argument is an extension of the views of the English philosopher John Locke, who felt that individuals ought to have inherent rights in the product of their labour. This reasoning has been echoed in many well-known copyright cases. In Walter v Steinkopff, North J observed that people could not be allowed to reap where they have not sown by taking advantage of the labour and expenditure of others for the purpose of saving labour and expense to themselves. These remarks were quoted with approval by Davey LJ in Walter v Lane. In Ladbroke v William Hill, Devlin LJ similarly held that a person should not be allowed to appropriate without payment the fruits of anothers labour, whether they are tangible or intangible. The cases against the National Awards jury and the FFI were
40 | P a g e

attempts to make the Indian judiciary come to the aid of marginalised non-Bollywood directors. But the former case had little merit while the latter was eventually withdrawn. On the other hand, powerful Hollywood studios are likely to be more formidable litigants. If the storyline of a Bollywood film closely resembles that of a Hollywood film, the producers of the latter can at least claim to have an arguable case and push the producers of the former into a settlement. At the very minimum, press reports of a planned lawsuit can result in adverse publicity for a Bollywood director or screenwriter. COPYING INCIDENTS AND THEMES IN A SCREENPLAY Categorisation of a Screenplay In England and India, copyright law is respectively governed by the Copyright, Designs and Patents Act 1988 (CDPA) and the Copyright Act 1957 (Indian Act). The Indian Act has borrowed heavily from and adopted many principles and provisions of the Copyright Act 1956, the predecessor of the CDPA. The CDPA and the Indian Act accord protection to original literary and dramatic works provided they are recorded in writing or otherwise. The copyright owners of such works are given a set of exclusive rights, including the right to: (i) copy the work in any material form (reproduction right), (ii) make a translation of the work (translation right), and (iii) make an adaptation of the work (adaptation right). The Indian Act only states that a literary work includes computer programmes, tables and compilations, while a dramatic work includes any piece for recitation, choreographic work or entertainment in dumbshowA literary work was defined in a seminal English case as a work which is expressed in print or writing, irrespective ofwhether the quality or style is high. This Supreme Court of India has followed this definition. A less inventive screenwriter will typically borrow ideas from a novel or the screenplay of another film. While a novel can clearly be classified as a literary work, the position in case of a film script seems a
41 | P a g e

little ambiguous. In Anand v Delux Films, the Supreme Court of India chose to categorise the script of a play as a dramatic work. A film script would, by extension, also be a dramatic work. However, judges have affirmed that the Indian Act does not prohibit a work from being both a literary and a dramatic work. Unlike the Indian Act, the CDPA precludes an overlap between literary and dramatic works. The CDPA states that a dramatic work includes a work of dance or mime but defines a literary work as any work, other than a dramatic or musical work, which is written, spoken or sung. Nourse LJ has defined a dramatic work as a work of action, with or without words or music, which is capable of being performed before an audience. Reconciling this view with the CDPAs mutual exclusion of literary and dramatic works, it can be argued that that any literary work intended to be performed is a dramatic work under the CDPA As Park J had explained in Brighton v. Jones: Suppose that A writes a short story, that B then writes a play dramatising the story, and that C then writes a film script derived from the script for the play. The story is a literary work Bs play is a dramatic work Cs film script is another dramatic work. However, in Christoffer v Poseidon, Park J chose to classify the script for an animated film as a literary work. This was perhaps because the script was not capable of being performed before an audience As far as the reproduction right is concerned, the Indian Act and the CDPA prohibit the unauthorised copying of both literary and dramatic works in any material form. If a screenwriter infringes the reproduction right of another screenwriter, it makes little practical difference whether the scripts in question are categorised as literary works or dramatic works (or both, under the Indian Act). Similar is the case with the translation right. However, categorising screenplays can have some implications where the adaptation right is concerned. The CDPA defines an adaptation as, inter alia, a version of a dramatic work in which it is converted into a non-dramatic work orof a non-dramatic work in which it is converted into a dramatic work. The Indian Act
42 | P a g e

provides a similar definition. The dramatization of a novel would clearly constitute adaptation. But if film scripts are exclusively regarded as dramatic works, it is arguable that a screenplay based on another screenplay does not amount to the conversion of the first screenplay into a non-dramatic work. In contrast, under Indian law, the dual literary and dramatic status of scripts means that the second dramatisation of a screenplay can count as its conversion to a literary work. Moreover, the Indian Act also states that an adaptation includes in relation to any work, any use of such work involving its rearrangement or alteration. Nevertheless, English courts have expanded the reproduction right to include the copying of the non-literal elements of a novel or script. Arguably, this has led to the reproduction right intersecting with the translation and adaptation rights. This has also perhaps compensated for the shortcoming of the CDPAs adaptation right with respect to screenplay-to-screenplay copying. Altered Copying The reproduction right can be breached by copying not just the words of a literary work but also the themes and ideas incorporated into it if they are sufficiently substantial. This may include the combination of the main themes, incidents and characters of a story. Copyright exists in these elements because copyright law seeks to protect the relevant skill and effort involved in creating a work. Thus, a novel can be turned into a play with much of the dialogue replaced and this could still be a copyright violation. Likewise, a dramatic work may be infringed by a second dramatisation which reproduces dramatic incidents without using or imitating language. However plaintiffs alleging copyright infringement merely because of similarity of stock incidents would face an obvious difficulty because of the existence of common sources. In Designers Guild v Williams, Scott LJ (referring to a book by Laddie, Prescott and Vitoria) termed this sort of non-literal copying as
43 | P a g e

altered copying, which means copying with modifications. Scott LJ observed that a paradigm case of altered copying would be a translation of a literary work into some other language, or the dramatisation of a novel. Scott LJ thus intertwined the translation and adaptation rights with the reproduction right. The judge also stated that in determining whether altered copying amounts to copyright infringement, the extent and nature of the similarities between the altered copy and the original work mustplay a critical and often determinative role. Even if a person creates a work with the work of another at his elbow, the differences between the works may be so extensive as to bar a finding of infringement. In the same case, Hoffman LJ opined that in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part of the original work. Hoffman LJs views were transposed by Lloyd LJ in an altered copying case involving literary works. The case concerned the alleged infringement of the central theme of a non-fiction book by the author of the Da Vinci Code. The central theme allegedly copied was a collection of incidents and themes. Lloyd LJ held that although some elements of the central theme were present in the Da Vinci Code, these were of too high a level of generality and abstraction to qualify for copyright protection. The Court differentiated the case from Ravenscroft v Herbert. In Ravenscroft a case decided under the Copyright Act 1956 the High Court found that the defendant novelist had adopted wholesale the identical incidents described in the plaintiffs book and had annexed for his own purposes the skill and labour of the plaintiff to an extent which is not permissible under the law of copyright. Indian courts have followed the position taken by English courts. In Anand, a playwright alleged that the copyright in his play had been infringed by the makers of a film with a similar storyline. Ali J affirmed that while copyright law does not protect mere ideas, the the form, manner and arrangement and expression of ideas can be protected.
44 | P a g e

However, Ali J held that the defendants film was not a substantial and material copy of the play. The judge added: At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film but a mere idea cannot be the subject matter of copyright. Pathak J (as he then was) concurred but cautioned against the impression that an authors copyright can be readily infringed by making immaterial changesand enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. In Bradford v Sahara, a British writer alleged that a Hindi television mini-series was based on her novel. The writers lawyer argued that the screenplay of the mini-series had infringed the authors adaptation right. However, he emphasised the concept of altered copying, thus linking the adaptation and reproduction rights. Citing Laddie, Prescott and Vitoria, he argued that the copyright in literary and dramatic works was not confined to the actual language but to the collection of ideas, thoughts or information contained in those works. The Court did not disagree and held that copyright infringement could be established by comparing and showing similarity of details, events, situations. But the Court held that the defendants had simply borrowed a mere rags to riches idea and that the themes and characters allegedly copied were too stock and too common to enjoy copyright. The Court stated that ordinary prototype characters are not protected by copyright and neither are common themes like sudden coming into fortune or rich girl marrying poor boy. For the Bollywood screenwriter who writes a screenplay based on a Hollywood screenplay, the upshot of all these judicial observations is this: altered copying can be alleged if identical incidents and characters are adopted and if the differences between the two screenplays are minor. However, the more commonplace or abstract the themes borrowed,
45 | P a g e

the

less

likely

it

would

be

to

constitute

copyright

infringement.

To illustrate, the storyline of the Bollywood comedy Bheja Fry was described by a well-known film critic as a scene-by-scene, dialogue-bydialogue remake of the French movie The Dinner Game. Both movies were based on the antics of a bumbling man invited to dinner by a person wishing to ridicule him. When quizzed about the similarities, the director-cum-screenwriter of Bheja Fry replied that he had made minor changes to the storyline of the French movie. He added, probably with the intention of sounding condescending, that a common man would not notice these changes. Ironically, these remarks would only lend credence to a screenplay-to-screenplay copying claim against him. Moreover, the themes and incidents described in the screenplay of The Dinner Game are, arguably, not common cinematic clichs. But an important indication of copying pertained to the visual similarities between the two films, such as the slapstick movements of the actors and the general mise-en-scne. In other words, Bheja Fry was practically a re-shot version of The Dinner Game. It is here that the role of film copyright comes into play.

RE-SHOOTING A FILM In Anand, Ali J stated that one of the surest and the safest tests to determine copyright infringement is whether the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. But there are certain elements of a motion picture which are distinct from its screenplay. For example, Richard Arnold points out that the famous Odessa Steps scene in Battleship Potemkin is entirely due to Eisensteins film editing or montage, and not due to any underlying work. One can also argue that certain important aspects of Benjamin Button were not the result of the screenwriters labour for example, the head of the films lead actor was digitally altered in appearance and was placed atop the body of a
46 | P a g e

child. Similarly, many action sequences and stunts can hardly be described in a script. These peculiar visual elements enliven the incidents contained in a screenplay and would quite likely be part of a movie which is re-shot. There exists some uncertainty about whether these elements can be categorised as a dramatic work or a film, or whether they are copyrightable at all The CDPA defines a film as a recording on any medium from which a moving image may by any means be produced. In relation to a film, copying includes making a photograph of the whole or any substantial part of any image forming part of the film. The CDPA thus places film copyright in the class of signal or medium copyrights which require reproduction of the relevant signal or medium for there to be infringement. In Norowzian v Arks (No. 1), Steinfeld QC affirmed that one could not infringe film copyright merely by making a close imitation of a movie You either copy the film or you do not. The case had arisen after the director Mehdi Norowzian alleged that a Guinness commercial had copied his film. Norowzians film had shown certain exaggerated dance movements through an editing technique known as jump cutting. The Guinness commercial had employed the same technique but as part of a different storyline. The Indian Act gives a film copyright owner the right to make a copy of the film, including a photograph of any image forming part thereof. In Star v Leo Burnett, the plaintiffs alleged that the defendants had infringed their reproduction right by making a film (a commercial) bearing a striking resemblance to their film (a television serial). The alleged resemblances pertained to certain central characters of the television serial. The plaintiffs were thus trying to extend the concept of altered copying to cover film copyright infringement. The Bombay High Court applied Steinfeld QCs views and treated film copyright as a signal copyright. Rebello J held that a movies film copyright could be infringed
47 | P a g e

not by making another film which merely resembles the film but only by making a physical copy of the film itself through mechanical duplication. The judge reasoned that films receive lesser protection because, unlike literary and dramatic works, they do not have to be original in order to be copyrightable. Recently, in a hearing concerning an interim injunction, Ghose J of the Calcutta High Court suggested that Steinfeld QC and Rebello J had erred. Ghose J felt that both judges had ascribed a narrow meaning to the word copy. Ghose J stated that with respect to films, the Indian Acts definition of copying gave the example of one type of infringement i.e. making a carbon copy of a film but did not rule out other types of infringement. The judge accordingly expressed the prima facie view that a movie had infringed the copyright subsisting in both the screenplay and the film of another movie. The case was eventually settled. But while Ghose Js remarks have limited precedential value, they are in conformity with the Berne Convention, which does not treat film copyright as a signal copyright with respect to the reproduction right. It is hoped that film copyright in India will be ceased to be treated as a signal copyright and the concept of altered copying will someday be applied in cases of film copyright. In England, Norowzian tried to overcome the limitations of film copyright by alleging that a re-shoot could breach a movies dramatic copyright. Steinfeld QC noted that while re-shooting a movie could not infringe its film copyright, it could infringe the copyright of the dramatic work fixed on film. But Rattee J subsequently held that Norowzians film could not be regarded as a recording of a dramatic work since the film had undergone a drastic editing process and was thus not a recording of anything that was, or could be, performed or danced by anyone. Nourse LJ, on appeal, agreed that a dramatic work had to be capable of being performed before an audience. Had Nourse LJ stopped there, cartoons and films with special effects would have ceased to enjoy copyright protection. However, the judge forestalled this problem by
48 | P a g e

adding that while Norowzians film was not a recording of a dramatic work, it was a dramatic work in itself as it was capable of being performed (by being screened) before an audience. Nourse LJ observed that the CDPA unlike the Copyright Act 1956 did not prohibit a work from simultaneously being a film and a dramatic work. In the same case, Buxton LJ noted that the Berne Convention requires contracting states to protect films as original authorial works. Buxton LJ thus felt that protecting films as dramatic works would be in conformity with the United Kingdoms obligations under the Berne Convention. The effect of the Court of Appeals decision is that reshooting may be a method of copyright infringement because it may infringe the dramatic copyright of a movie. Nourse LJ ultimately ruled against Norowzian because he felt that Norowzian was essentially claiming copyright over an editing technique, which was not permissible. But arguably, creators of movies like Benjamin Button can still allege infringement if a person copies the characters or incidents they have created through a non-copyrightable editing technique. However, protecting films as dramatic works does not seem possible in India. Like the Copyright Act 1956, the Indian Act states that a dramatic work does not include a film. This perhaps explains why, in Star, the plaintiffs did not bother to argue that their film was simultaneously a dramatic work (Star was decided after the Court of Appeals decision in Norowzians case). In the 1970s, the Bombay High Court observed that a record of a dramatic work referred to the record of a point of time prior to the acting or scenic arrangement and not the record of the acting or scenic arrangement made on a film after the scene is arranged or acting done. The Court thus described a movie as a mixture where some components were copyrightable (such as the screenplay) and some were not (such as the actions of the actors).
49 | P a g e

Infringement by Cinematograph Film. If on reading the screen play and the dialogue one gets an impression that this is the reproduction of the drama, the case of infringement can be noted. In R G Anand v. Delux Films, the Supreme Court, after careful consideration of various authorities and case laws on the point of infringement of copyright, laid down following propositions: 1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by tile author of the copy-righted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two words are clearly incidental no infringement of the copyright comes into
50 | P a g e

existence. 6. As a violation of copyright amounts to an act of piracy it must be proved By clear and cogent evidence after applying the various tests laid down by decided cases 7. Where however the question is of the violation of the copyright of a stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the Idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved. In Fortune Films International v. Dev Anand1, The main issue in this case was whether the performance of a cine artiste in a film is a work protected as an artistic work or dramatic work or that of a cinematograph film. The Court held that the copyright of the respondent actor extended to his work in the film and not in the film as a whole. As to the nature of the respondents work, the Court considered whether it would fall into any of the protected categories. It held that it was not an artistic work as it was not a painting, sculpture, drawing, engraving or a photograph. It was not a dramatic work as it was not a piece of recitation, choreographic works, or entertainment in a dumb show and further. Also, since dramatic work in the sub-section excluded cinematographic film, it could not be said to be a dramatic work.

REMEDIES FOR THE INFRINGEMENT. REMEDIES FOR THE INFRINGEMENT. Civil Remedies. Sections 54 to 62 lay down the provision of remedy in
1

51 | P a g e

the form of civil nature. These remedies include injunction, damages and accounts, delivery of infringing copies and damages for conversion. Criminal Remedies. Sections 63 to 66 provide for the criminal remedies, which include imprisonment of the accused or imposition of fine or both, seizure of infringing copies and delivery of infringing copies to the original owner. Administrative Remedies. Section 53 says that in case of infringement of the copyright, the plaintiff can move to the Registrar of Copyright to ban the import of infringing copies into India and the delivery of the infringing copies to the owner of the copyright CONCLUSION A man is entitled to the fruits of his mental labour. He is entitled to exclude others from enjoying the fruits of the labour and hard work, which he puts in giving shape to his creation. The moral basis on which the law of copyright exists is the English Commandment- THOU SHALT NOT STEAL. There are sufficient case laws on the point of infringement of the copyright in dramatic works. But largely, these cases can be found in the foreign authorities. The Copyright Act 1957 lays down the provision of remedy for the infringement of the copyright. These remedies are of three types, namely civil, criminal and administrative. Both English and Indian law treat film copyright as a signal copyright. English judges have circuitously rectified this gap by categorising films and dramatic works. Since Indian law precludes this method of dual protection, a Hollywood filmmaker suing a Bollywood filmmaker for imitating visual sequences would be placed at a disadvantage. Nevertheless, the broad concept of altered copying still gives such plaintiffs the possibility to succeed in a claim based on screenplay-toscreenplay copying. This paper has tried to argue that marginalised nonBollywood directors and screenwriters could be the unintended beneficiaries of copyright litigation against Bollywood. Therefore, viewed
52 | P a g e

from this perspective, even a diluted copyright infringement claim against a Bollywood filmmaker ought to be seen as a positive development. FINDINGS AND RECOMMENDATIONS There must be a universal authority to issue copyright, which will be valid in all countries, So that the creator doesnt have to work for license and registration in respective countries. It should be centralized, and with the arrival of computer it is easier to make it a central process. If there is any discrepancies or if there is any infringement that will be available from the database itself. For cinematographic films, copyright must be given by a panel of officials after watching it before release. Otherwise we will find Hollywood copying from other international movies, Bollywood copying from Hollywood and Tollywood copying from Bollywood.

53 | P a g e

REFERENCES

BOOKS; Intellectual property : B. L. WADHERA COPYRIGHT act. INDIA TODAY TIMES OF INDIA, THE TELEGRAPH FILMFARE, THE SCREEN INTERNET: 1) www.google.co.in 2) www.legalpandit.com 3) www.manupatra.com 4) www.wikipedia.com 5) www.indiakanoon.com 6) www.spicyIP.com

54 | P a g e