1
WHETHER COPYRIGHT CAN BE USED AS PROTECTION TOOL FOR CINEMATOGRAPHIC FLIM AND SOUND RECORDING
INTRODUCTION
Intellectual Property Rights are the legal rights that are granted to a person for any creative and artistic work, for any invention or discovery, or for any literary work or words, phrases and symbols or designs for a stipulated period of time. The owners of Intellectual Property are granted certain exclusive rights through which they use their property without any disturbance disturbance and can prevent prevent the misuse of their property. property. The Copyright Copyright ct ct of !"!# was essential essentially ly an extension extension of the $ritish $ritish Copyright ct, !"!! which governed the country till independence. fter India%s independence, the Copyright ct, !"&' came into force which has undergone several amen amendm dmen ents ts,, from from time time to time time to meet meet the the chal challe leng nges es po pose sed d by tech techno nolo logi gica call developments, the latest being the ()!( amendments. The term *copyright *copyright++ is not defined defined under the Indian Indian Copyright Copyright ct, ct, !"&' herei hereinaf nafter ter referr referred ed to as *Copyr *Copyrigh ightt ct+ct+-.. The genera generall connot connotati ation on of the term term copyright refers to the *right to copy+ which is available only to the author or the creator, as the case may be. Thus, any other person who copies the original work would be amount to infringement under the Copyright ct. Copyright ensures certain minimum safeguards of the rights of authors over their creations. Creativity being the keystone of progress, no civilied society can afford to ignore the basic re/uirement of encouraging the same. 0conomic and social s ocial development of a society is dependent on creativity.
2
The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create. 1n the other hand, what is created by him2her cannot be claimed ownership for generations all together as it might harm the social 3ustice. Therefore, a term of life plus sixty years years is being adopted in India for the purpose of determining the period of
copyright. This period may vary from country to country. If copyright protection is applied rigidly, it can hamper progress of the society. Therefore, copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained between the interests interests of the creators and and of the community. community. Copyright in a work is considered as infringed only if a substantial part is used unauthoried. 4hat is 5substantial% varies from case to case. 6ore often than not, it is a matter of /uality rather than /uantity. 7or example, if a lyricist copy a very catching phrase from another lyricist%s lyricist%s song, there is likely to be be infringement even if if that phrase is very very shor short. t. Th Thee best best exam exampl plee woul would d be *1h, *1h, Pret Pretty ty wome women+ n+ deal dealtt in the the case case of Campbell Vs Acuff Ross Music Inc.
The copyright copyright law therefore, therefore, to strike strike a balance balance between between promoting promoting innovativeness amongst the creators and the interest of the general public has excluded a fair deal of works that is permitted without specific permission of the copyright owners. In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works en3oying copyright such as research or private study, criticism or review, reporting of events, 3udicial proceeding, performance made before a non8 paying audience etc. etc. The most important criteria to determine whether the said article is copyrightable or not, is based on its originality .lso copyright can be only for things that are worth copying and not otherwise. 7or example, a baby scribing in a pad cannot be copyrighted. Copyright protects the expression and not the content or substance per se.
3
Copyright also does not protect the titles per se or the names, word or a set of words. $ut there can be exceptions based on the facts and circumstances of each case. 7or example, the actor 9hah Rukh :han has copyrights his name 9R:- and the music composer .R.Rahman copyrighted the title *;ai
slight variations in the composition of the rights depending upon the nature of work. WOR IN W!IC! CO"#RI$!T %U&%I%T% 'C!A"T(R III) %(CTION *+ O, CO"#RI$!T ACT-
!. =iterary works including computer programmes, tables and compilations including computer literary data bases(. >ramatic works ?. 6usical works #. rtistic works &. Cinematograph films @. 9ound recordings. ,oreign Wor.s
The copyright of foreign works is also protected in India. Copyright of nationals of countries who are members of the $erne Convention for the Protection of =iterary and rtistic 4orks, Aniversal Copyright Convention and the TRIP9 greement are protected in India through the International Copyright 1rder, as if such works are Indian works Copyright as provided by the Indian Copyright ct is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a
4
member of the following international conventions on copyright and neighbouring related- rightsB a. $erne Convention for the Protection of =iterary and rtistic works. b. Aniversal Copyright Convention. c. Convention for the Protection of Producers of Phonograms against Anauthorised >uplication of their Phonograms. d. 6ultilateral Convention for the voidance of >ouble Taxation of Copyright Royalties. e. Trade Related spects of Intellectual Property Rights TRIP9- greement O/ners0ip
enerally, the creator or the author of the work is the owner of the work and therefore entitled to get the copyright for the work. 4here the author of the work is employed by another person, the work belongs to the employer of the author. nd where creation of the works is incidental, but not the purpose, the work belongs to the authors. $ut in practice, out of the contractual agreement between the employer and the employee, the creation during the course of employment would be belonging to the employer. There may be a situation where a particular final work involves many copyrightable sub8 divisions such as film wherein many works such as music, lyrics, dramatic works etc are copyrightable. The authors in the creation of such work are many such asB a. In the case of a musical work, the composer. b. In the case of a cinematograph film, the producer. c. In the case of a sound recording, the producer. d. In the case of a photograph, the photographer. e. In the case of a computer generated work, the person who causes the work to be created. f. In the case of 9cript, the writer. 0tc.
5
4here the work is made by the author in the course of his employment under a contract of service or apprenticeship, for the purpose, the said employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work. 7or example, where the composer of the music copyrights his creation and later provides the same to the film for some consideration, the work is still owned by the author only. A1CIN(MATO$RA"! ,I2M A Cinematograp0 film can be defined as any work of visual recording on any medium
produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and DcinematographD shall be constructed as including any work produced by any process analogous to cinematograph
including
video
films
The author of cinematograph film is the producer, as par section (d-v- of the copyright ct. Eideo films are deemed to be work produced by a process analogous to cinematography.
%ection *+'*3- of t0e U11 Copyrig0t Act of *456 7efines t0e term as follo/s8
Cinematograph film means any se/uence of visual images recorded on material of any description whether translucent or not- thereby can be capable of use of that materialB8 a-of
being
shown
as
a
moving
picture,
or.
b- of being recorded on other material whether translucent or not-, by the use of which it can be shown.This definition would appear to include video cassette tapes The cine artiste who acts in the film is not protected by copyright law for his acting.
6
cinematograph film may be taken of a live performance, like sport events, public functions, or dramatic or music performance or it may be based on the cinematograph version of a literary or dramatic work. In the latter case if the corresponding literary or dramatic work is copyrighted the making of the film will re/uire the consent or license of the owner of the copyright in the literary or dramatic work since that copyright includes the right to make a cinematograph film. 9imilarly if the film has a sound track recording of music the producer will have to obtain the consent of the verse writer and the song writer if copyright subsists in them. (ffect of censors0ip on copyrig0t
4here the owner of a cinematograph film has committed an offence under the law relating to film censorship and is liable to prosecution for that offence, the /uestion arises whether it would affect his right to copyright in the film. 9ince the subsistence of copyright depends only on the provisions of the Copyright ct it would appear that the fact that the owner has not complied with the film censorship re/uirements will not affect the subsistence of copyright in the film or the enforcement of remedies against infringement. Copyrig0t in lyric an7 music an7 o/ner of cinematograp0 films
1nce the author of a lyric or a musical work parts with a portion of his copyright by authoriing a film producer to make a cinematograph film in respect of his work and thereby to have his work incorporated or recorded on the sound track of a cinematograph film, the latter ac/uires by virtue of section !#d- of the Copyright ct on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public for example to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author composer- of the lyric or a musical work for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of the $ritish
7
Copyright Committee set up in !"&! relates both to copying the film and to its performance in public. T0e composer of a lyric or a musical /or.
whether a short film called F3oyF consisting of a man dancing to music was infringed by another film called DnticipationD. In both films the visual impact was produced by an editing techni/ue known as D3ump cuttingD. $oth were advertising films. It was held by the court of appeal that
8
!- since D3oyD was a work of action capable being performed before an audience it was a dramatic work (- D3oyD was not a recording of a dramatic workG ?- DnticipationD was not a copy of a substantial part of D3oyD. $.%OUND R(CORDIN$ Copyright exist in a sound recording 9ound recording means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are reproduced.
Copyright will subsist in a sound recording only if it is made as par the ct. Copyright will not subsist in any sound recording made in respect of literary, dramatic or musical work, if in exist in the making the sound recording, or that copyright in such work has been violated or infringed. The right of sound recording is different from the sub3ect matter recorded as they are the sub3ect of independent copyrights. The author of a sound recording is the producer. In the present A.:. Copyright, >esigns and Patents ct !"KK, s. & defines Fsound recordingF as followsB ;%oun7 recor7ing; means< 'a- a recor7ing of soun7s from /0ic0 t0e soun7s may be repro7uce7 or 'b- a recor7ing of t0e /0ole or any part of a literary) 7ramatic or musical /or. , of
which sounds reproducing the work or part can be produced. irrespective of the medium on which the recording is made or the method by which the sounds are reproduced or produced. Recor7ing of music
6usical works and sound recording embodying the music are considered separate sub3ect8matters for copyright. Thus copyright in the recording of music is separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. 4here the song has not been written down and the composer who is also the performer
9
records the song two copyrights come into existence at the same time, one for the music and one for the sound recording.
IN,RIN$(M(NT
IN
CIN(MATO$RA"!IC
,2IM
AND
%OUND
R(CORDIN$%8 I1
CIN(MATO$RA"!IC WOR%8
Copyright in cinematographic works is more complex in nature as there a variety of copyrights exist in a single work and many a times these rights are also overlapping. The first right in a film is the Dtheatrical rightD i.e. the right to exhibit films in theatres. The producer is the copyright holder. The distributors buy theatrical rights from producers and then make some arrangements with the theatre owners for actual exhibition to the public. The theatrical rights are limited by territory and time. 7ilms are also released in video cassettes. In fact, these days viewing film at home has become more popular than seeing the same at theatres. The producers sell the video rights to another party who makes video cassettes for sale in the market. These cassettes are meant for Dhome viewingD only i.e. one can buy a copy of it for seeing at home with family members and friends. 9uch cassettes cannot be used for showing the film in cables or through satellite channels because showing films in cables or satellite channels re/uire ac/uisition of separate sets of rights namely Dcable rightsD and Dsatellite rightsD etc. cable network is generally limited to local areas as it re/uires receivers viewersD TEs- which are to be physically connected through cable wire to the operators. In case of satellite channels, however, there. is no such physical limit as transmission takes place through air and received at the users end by dish antennas-. Interestingly, in India satellite transmissions, in most of the cases, reach to end8 users through cable networks only. The cable networks in India works in a two8tier system. t the top there are main operators who transmit their programmes through numerous small local operators on a franchise basis. The programmes of satellite channels reach to the viewers through cable networks. The main- cable operators do not pay anything to satellite channels for showing latterDs programmes in the network except
10
for pay channels e.g. 09PH, Lee Cinema, 6ovie Club etc-. The small cable operators, however, share their incomes with their respective main operators. The revenue for small operators comes from the subscription of viewers. 6usic is an integral part of any cinematographic work. In India, film sound tracks account for almost ? I #th of the total music market. 0ven if film producer has the copyright in the film, the music included in the film is the outcome of efforts undertaken by a separate group of creative people such as the composer, lyricists etc. each of them is a rightholders of its own right. Infringement of copyright of cinematographic works takes two principal forms, namely D:i7eo piracy= an7 =cable piracy= .
%OUND R(CORDIN$
The sound recording industry faces three types of infringement. ,irst, there is a simple way by which songs from different legitimate cassettes2C1s and thus different rightholders- are copied and put in a single cassette2C1. These are then packaged to look different from the original products and sold in the market. %econ7) there is counterfeiting, when songs are copied into and packaged to look as close to the original
11
as possible using the same label, logos etc. These products are misleading in the sense that ordinary end users think that they are buying original products. The t0ir7 form of music piracy is bootlegging, where unauthorised recordings of performance by artists are made and subse/uently reproduced and sold in the market. ll these happen without the knowledge of the performers, composer or the recording company. 0arlier the music piracy was confined to cassette tapes only. 4ith the advent of C>s in the eighties it was thought that infringement of copyright of sound recordings would become things of the past. $ut in reality C> piracy is the greatest threat to todayDs music world. In fact, C>s piracy has got an international vigour. 7ortunately or unfortunately, C> industry is still in it nascent stage in India. t present C> market is 3ust ( to ? percent of the overall music market in the country. C>s have not taken off mainly because of high prices. In India C>s are sold on an average price ranging between Rs.l&) to Rs.&&). Considering price of cassettes, the price differential between cassettes and C>s- is /uite high and prohibitive for ordinary music lovers. Cassette piracy in India is as old as the cassette industry itself. ovt. policy put music industry in the small scale category and volume of a record companyDs cassette production was restricted to ?)),))) units per annum. This led to a wide gap in he demand supply front which was ultimately bridged by the pirates. 0ven if music piracy percentage has declined from a high of ?)M in !""& to about ('M in ())&, India is the worldDs sixth largest pirate market in value terms but third in volume terms. The popularity of Indian music has gone beyond the national boundaries. There is large demand for Indian music in the neighbouring countries such as Pakistan, 4est sia as well as far off countries like A9, Canada and the A:. Indian music is also pirated in some of these foreign countries, the notable among these being Pakistan and the 4est sia. 9imilarly, foreign audio products are also sub3ect to piracy in Indian soil III1
"IRAC# AND "ROT(CTION
Piracy is a problem worldwide and affects all the ma3or content industries like software, television, recording and movies. This problem has assumed enormous proportions, with the ma3or A.9. motion picture studios reporting a loss of N@.! billion in
12
the year ())& due to piracy worldwide. K)M of these losses have resulted from piracy overseas and ()M because of piracy in the Anited 9tates. In India, ("M of the potential market for movies produced by ma3or A.9. movie studios is lost to piracy. The IT industry is similarly affected with a recent study revealing that ?&M of the software installed in ())@ on personal computers PCs- worldwide was obtained illegally, amounting to nearly N#) billion in global losses due to software piracy. lthough there are various laws in place for battling piracy, the enforcement of these laws in India is weak. section 5?A
Ander s. &( introduced by the Copyright mendment- ct !"K#, the following particulars should be displayed on sound recording or video films or video cassettes, as the case may be, or any container thereof namelyB a- the name, and address of the person who has made the sound recording b- the name and address of the owner of the copyright in such work c- the year of its first publication. Vi7eo film or :i7eo cassette
a- if such work is a cinematograph film re/uired to be certified for exhibition under the provisions of the Cinematograph ct !"&(, a copy of the certificate granted by the $oard of 7ilm Certification under s. & of that ct is respect of any work b- the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary license or consent from the owner of the copyright in such work for making such video filmG and c- the name and address of the owner of the copyright in such work. AM(NDM(NT ACT ?3*? AND CO"# RI$!T "ROT(CTION ,OR CIN(MATO$RA"!IC AND %OUND R(CORDIN?5$
The definition of 5cinematograph film% in the erstwhile ct read under section
13
(f- asB *Cinematograp0 film means any /or. of :isual recor7ing on any me7ium pro7uce7 t0roug0 a process from /0ic0 a mo:ing image may be pro7uce7 by any means an7 inclu7es a soun7 recor7ing accompanying suc0 :isual recor7ing an7 @cinematograp0 s0all be construe7 as inclu7ing any /or. pro7uce7 by any process analogous to cinematograp0y inclu7ing :i7eo filmsB1
This definition has been amended in ()!( and it now reads as 5any work of visual recording on any medium and includes a sound recording accompanying visual
recording and 5cinematograph% shall be construed as including any work produced by any process analogous to cinematography including video films...%
The condition with
respect to the medium and the process of creation of a visual recording are thus omitted by the amendment. The newly inserted section, section (a- defines 5visual recording% as, 5...the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.% 9ection (xxa-, thus broadens the omitted portion of the definition of cinematographic work under section (f-. In the Copyright mendment $ill of ()!) there was a proposal for making the principal director in a cinematographic work to be a co8author since at present, the principal director is only paid fee for his work and his creativity goes unrecognied in spite of his intellectual contribution in the creation of the film. 4hile noticing that such a provision does not exist in most of other 3urisdictions like the A9, the parliamentary standing committee endorsed its apprehensions that the proposed amendments would create a lot of uncalled and unnecessary problems in the Indian cinema. Thus the committee dropped the recommendation citing that the time was not ripe in India to make the principal director co8author of cinematograph film as *the producer is the kingpin who
invests
substantive
money,
raises
finance
through
institution,
utilies
persons2expertise and takes such initiative and responsibility for making the work and chooses the director on certain offer
14
(. 7urther, the economic rights in respect of cinematographic film are expanded. The exclusive rights of owners o f a cinematographic work and sound recording under section !#d- and section !#e- respectively are widened to include 5the right to store% the work in any medium by electronic or other means. 9imilarly, the right to store the work in any medium by electronic or other means is included in respect of artistic works under section !# c-. The expansion of economic rights by covering 5the right to store% thus addresses technological issues of 5storing%. The right to store the work assumes great importance in a digital environment where copyrighted work can be reproduced flawlessly and inexpensively and instantaneously transmitted worldwide. The words 5any medium by electronic or other means% are wide enough to address the possibility of evolution of new technologies. ?. 1wnership and authorship are two different notions under copyright law. n author need not necessarily be the first owner of copyright. 9ection !' provides for ownership of copyright. combined reading of sections !'b- and !'c- clarifies that in case of commissioned cinematograph work, the commissioning party and in case of employer 8 employee relationship, the employer is considered to be the first owners of the work. The ()!( amendments have inserted a new proviso stating thatB *in case of any work incorporated in a cinematograph work, nothing contained in clauses b- and cshall affect the right of the author in the work referred to in clause a- of sub section !of section !?.+
15
Till ()!( amendments, the doctrine of exhaustion was applicable only to the literary, dramatic and artistic works. 0xhaustion basically means that after the first sale by the right holder or by his exhaustion authoriation, his right comes to an end and he is not entitled to stop further movement of goods. Thus, once an intellectual property right holder has sold a physical product to which its intellectual property rights are attached, he cannot prohibit the subse/uent resale of that product. The right is exhausted by the first consensual marketing. third party may, after legitimately purchasing these goods, sell them in any of the country8markets. 0xhaustion may be either domestic or international. Ander domestic exhaustion, In the Indian copyright regime, subse/uent to the decision in Warner Bros. Entertainment Inc. :1 Santos 1$, the application of the doctrine of exhaustion was
=imited to literary, musical, dramatic and artistic works. The doctrine of exhaustion had no applicability to cinematographic films and to sound recordings. In Warner Bros. the elhi was confronted with the /uestion whether a cinematograph film, in which copyright subsisted in India, once put in the market by the owner of the copyright was sub3ect to the doctrine of exhaustion. The case deserves a detailed analysis in this context. The plaintiffs therein claimed copyright in India under the International Copyright 1rder, !""! in films which were first published in the A9. The defendant legally bought these >E>s from the A9, and imported them into India. They then made available the particular >E>s which had been legally bought by them- to their Indian customers. The plaintiffs alleged that these acts of import and hiring out amounted to an infringement of their copyright. The defendant stated that *the >E>s were bought legally O there was no copy of those particular >E>s. That being the case, it was contended that no infringing copy had been made+. 7urther, relying on the *first8sale doctrine+, the defendant argued that once a >E> has been legally sold to them by the plaintiffs, the plaintiffs% rights in that particular >E> were exhausted. The defendant also argued that once the plaintiffs placed their copies in the A9 market, and they were purchased legitimately, 5long arm% restrictions expressed on the concerned copies are of no conse/uenceG it lost or *exhausted+ the right to control further sale or commerce in that
16
copy. ccordingly, the plaintiffs could not exercise control over the particular >E>s after the first sale had been completed. The defendant also raised the explanation to section !# of the Copyright ct which states, *7or the purposes of this 9ection, a copy which had been sold once shall be deemed to be a copy already in circulation+ . It was urged that the doctrine of first sale applies in India, and there was no case of infringement. The court noted the at under section *'7- copy rig0tB in respect of cinematographic works means, right forB I. making a copy of the filmG ii. 9elling or giving on hire or offer for sale or hire any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasionsG iii. communicating the film to the public. 4hereas the copyright in respect o f a literary, dramatic or musical work would mean under section !# a- the rightB I. to reproduce the work in any m arterial form including the storing of it in any medium by electronic meansG ii. to issue copies of the work to the public not being copies already in circulationG iii. to perform the work in public, or communicate it to the publicG iv. to make any cinematograph film or sound recording in respect of the workG v. to make any translation of the workG vi. to make any adaptation of the workG vii. to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub clauses I- to vi-. Thus, as per the court the content of copyright in case of cinematographic works is different from that in the case of literary works, dramatic works etc. The phrase *copy in circulation+ was found in describing the copyright tis-a-vies literary, musical and dramatic works. It found no application in cinematographic works. 1n a plain reading of section !#, the phrase was used to limit the copyright in the case of literary, musical and dramatic works only. *This limited exhaustion negates the applicability of the principle in regard to other classes of copyrights. Thus, Parliament having intervened in one category
17
of copyrights to grant a limited kind of 5exhaustion% and consciously chosen not to extend it to others, sleight of 3udicial reasoning cannot extend its application.+ The court further stated thus 9ection !#!-d- provides the at the copy right owner has, in case of cinematographic films, the exclusive right to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasion. The copyright owner therefore continues to be entitled to exercise rights in a particular copy of the film regardless of whether it has been sold previously8 in express contrast to literary works, which are *already in circulation.+
s stated
earlier, the amendments replace the term 5hire% with 5commercial rental% in section !#dii- and !#e-ii- which relate to cinematograph film and sound recording respectively. 7urther, the words, 5regardless of whether such copy has been sold or given on hire on earlier occasions% as used under sections !#d-ii- and !#e-ii- prior to amendments are omitted by the ()!( amendments making the doctrine of exhaustion applicable to cinematograph films and sound recordings Assignment of copyrig0t
Intellectual property laws confer exclusive rights to the owners of intellectual property to exploit their work. =ike other ma3or forms of intellectual property, copyright can be transferred by license or assignment. license permits the licensee to make use of copyrighted work under a given set of terms and conditions m usually agreed upon by the licensor 8 the copyrighted holder and the licensee. 4hereas an assignment confers full rights in the underlying copyrighted work. $y assigning the copyright, the copyright owner transfers his titles to the assignee. 1nce assigned, then the original owner no longer owns any control in relation to the work. n assignment permits greater freedom to the assignee in marketing o f a work than could be a case with a license. ssignment can be effected in respect of an existing work or in respect o f a future work.9imilarly assignments may be in respect of whole rights or partial rights. ssignments can either be general or sub3ect to limitations. Ander section !K of the Copyright ct which provides for assignment of copyright, three provisos have been inserted by virtue of ()!(
18
amendments to safeguard the author from new modes of exploitation which may arise in the future by way of technological advancements and which were not contemplated at the time of assignment. The provisos read thusB a. Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the workB b. Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an e/ual basis with the assignee of copyright for the utiliation of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to contrary shall be voidB c. Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an e/ual basis with the assignee of copyright for any utiliation of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.
19
any agreement to contrary shall be void. 6oreover, the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film will not assign or waive the right to receive royalties to be shared on an e/ual basis with the assignee of copyright for any utiliation of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void. To address the technological advancement that may take place in future, it is common in many copyright licenses to include a language that covers 5all media not known or hereafter developed% or 5all formats presently existing or hereafter invented%. Regarding the future technology issues countries have adopted various interpretations. 7or example, way back in !"KK, the matter came up in India, in Raj Video Vision :1 K. Mohanakrishnsn wherein the producer had assigned to the original IR assignee in the
year !"@! all negative rights in a Tamil talkie picture titled 5 The defendant had derived right from the original assignee in respect of the film.
4alt >isney the sole and exclusive rights to produce Peter Pan in *cinematograph and motion picture films to be sufficiently broad enough to grant rights to both silent and the new technology of *talkie+ films.
20
This could create anomalous situation because by referring only to the assignment, the proviso leaves licenses. 1ne may also wonder why dramatic works are excluded from the third proviso of section . 4hy the copyright holders of dramatic work are not allowed for e/uitable remuneration as in the case of literary or m musical work incorporated in a cinematographic film This proviso leaves the artist with no right of e/uitable remuneration if any pantomime, puppet show or dumb show is incorporated in a film. The exclusion of dramatic work from the purview of this proviso is thus un3ustifiable. 7urther, under section !" of the ct which relates to the mode of assignment, certain changes have been incorporated. 9ection !"?- has been amended to provide that the assignment of copyright in any work shall specify the amount of royalty and any other consideration payable. 7urther three sub8sections, i.e., !"K-, !""- and !"!)- have been inserted. 9ection !"K- provides that the assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void. 9ection !""- and section !"!)- provide that no assignment of copyright in any work to make a cinematograph film or sound recording which does not form part o f a cinematograph film- shall affect the right of the author to claim an e/ual share of the royalties and consideration payable for any utiliation of such work, respectively. 2icenses
The copyright owner alone has the exclusive right to deal with the copyrighted sub3ect matter. If a third party does, without authority from the copyright owner, anything that falls under the exclusive domain of the latter that would amount to infringement. n infringement thus occurs, when the exclusive rights of the copyright owner are exercised without a 5license%. license makes the act lawful that which would otherwise be unlawful. license passes no proprietary interest since the licensor retains ownership. In actual practice, it is mainly through licenses that the copyright owner commercially exploits a work for financial gains. license can be voluntary or involuntary Q as in the case of compulsory licensesG or exclusive or nonexclusive.Copyright ct stipulates the
21
formalities to be complied with in order to enter into legally enforceable licenses. 9ection ?) of the Copyright ct, prior to the recent amendments re/uired licenses to be in writing and signed. The ()!( amendments have simplified the procedure by re/uiring copyright licenses to be only in writing. 7urther, by amending section ?!, compulsory licensing has been made applicable to foreign works as well. 0arlier this provision was applicable only in respect of 5Indian works withheld from public.% How compulsory licenses apply to all works, whether Indian or not with an ob3ect of making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. The amendments also widened the scope of section ?! to provide for compulsory license in the case of published work. $efore the amendments the section applied only to unpublished Indian works. The amendments enable the copyright board to grant compulsory licenses to more than one person provided the board is of the opinion that the applicants- is /ualified to do so. $efore the ()!( amendments, the most common forms of licenses were voluntary and compulsory licenses. The amendments have introduced a new form of license 8 the statutory licenses. 9ection ?!C has been inserted by virtue of the ()!( amendments to provide for statutory licenses for cover versions. In the preamendments regime, the right to make cover versions was treated as a part of fair dealing under section &(!-3-.
22
owner. dvance copies of all covers or labels with which the sound recording are to be sold to be provided or royalties to be paid in advance. 1ne royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each year. Copyrig0t society
Chapter EII of the Copyright ct providing for copyright societies has been substituted in the year !""#. Earious amendments have been carried out in section ??, ?# and ?& o f the ct dealing with registration and functioning of copyright societies. The newly inserted proviso to section ?? states that the business of issuing or granting licenses in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph film or sound recordings shall be carried out only through a registered copyright society. The existing copyright societies will be deemed to be treated as copyright society under the new amendment ct but they need to reregister The new amendments thus safeguard the copyright societies from being mismanaged and ensures that the interest of both the authors and owners are protected. It has also strengthened the economic and moral rights of authors, confers positive rights to performers and makes provisions to facilitate better access of copyrighted work. It is hoped that the amendments with respect to assignment and licenses would streamline business practices by protecting original authors% interest.
O,
,AIR
U%(
AND
&ROAD(%T
"ROT(CTION
TO
CIN(MATO$RA"! ,I2M%
6ysteriously, the broadest protection is offered under the ct to the category of 5cinematograph films% by excluding these from many of the exceptions to protection. The only permitted act in respect of the copyright in cinematograph films that would not amount to infringement under the ct is as provided under sub8section i- of section &(.
23
The subsection refers to 5performance% and 5communication to the public% of the cinematograph film. Ander sub section /- of section ( of the ct, 5performance% has been defined only in respect of performer%s right and means 5any visual or acoustic presentation made live by one or more performers%. 7urther, under subsection d- of section !#, the exclusive rights granted in respect of a cinematograph film areB i- to make a copy of the film including a photograph or any image forming part thereofG ii- to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasionsG and iii- to communicate the film to the public. Hotably, there is no right granted in respect of 5performance% of a cinematograph film. 5Communication to the public% is defined under sub8section ff- of section ( to mean 5making any work available for being seen or heard or otherwise en3oyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise en3oys the work so made available%. The right of performance of a work is granted to the owner of copyright under sub8section a- of section !# of the ct only in respect of literary, dramatic or musical works. It also significant to note that the A: copyright law has clearly reserved rights of *performance+ only in respect of literary dramatic and musical works and rights of *playing or showing of the work+ akin to the right of 5communication to the public% under the Indian ct- in respect of sound recordings, films, broadcasts and cable programs. Considered in that light, it is trite to state that an exception from protection could be given only to a right that is provided for under the ct. 4hile there does not appear to be any exclusive right of performance granted to the owner of a cinematograph film, an exception granted to the right to perform a cinematograph film in certain circumstances is rather out of place. 7urther, the words, 5 or the communication to such an audience of a cinematograph film or sound recording % inserted by the !""#
mendment seems almost an afterthought and a clumsy attempt to rectify the situation.
24
W!AT I% NOT "(RMITT(D UND(R T!( ACT IN R(%"(CT O, A CIN(MATO$RA"! ,I2M AND %OUNDR(CORDIN$ A1 CIN(MATO$RA"! ,I2M
7ilms being an integral part of teaching the art of cinematography and film making, the absence of provisions making exceptions by way of research, teaching and private study in respect of cinematograph films appear to make our film institutes and film schools guilty of continuous infringement of copyright in cinematograph films. 7urther films, effectively used to teach languages, often pose a challenge in terms of advice to a client by a copyright practitioner as to their use. The Indian courts have also these days fre/uently been called upon to examine issues relating to violation of copyright in films and sound recordings. Anfortunately, the ct exempts only the reproduction in the course of a 3udicial proceeding of literary, dramatic, musical and artistic works from infringement .
argument that no fair dealing provisions existed in respect of cinematograph films for reporting of current events and that the reporting of a sports event by the news channels, therefore amounting to violation of the copyright in the cinematograph film was raised by the appellant8broadcaster, the elhi did not address that same. et another act of infringement in the context of reporting current events is the unauthoried use by newspapers and magaines of photographs of images forming part of a cinematograph film while publishing reviews in the print media. s per sub8section i- of section !#d-, the producer of the film has the exclusive right to make a copy of the film including a photograph of any image forming part thereof. The photographs of images from films
25
that usually accompany the film reviews in newspapers and magaines would, &1 %OUND R(CORDIN
%$ significant exception to infringement of sound recordings is the provision for making *version recordings+ or *sound8alike recordings+. $arring this exception, sound recordings also face an almost similar yet marginally superior treatment under the ct and, almost all the concerns raised in respect of cinematograph films above apply e/ually to sound recordings. CONC2U%ION
7air use and copyright are, therefore, two sides of a coin that cannot exist without each other. If the regime of a country is structured to treat copyright with no fair use or without ade/uate fair use, everything can be appropriated in the name of copyright, thereby creating a monopolistic regime in favour of owners of protected works. The copyright law of a country has to keep pace with developments around the world and appropriate amendments must be made to maintain a balance between protecting creativity and preserving public interest. Copyright laws around the world recognie this aspect and undergo constant revision. n unhappily worded legislation coupled with uneven application of the fair use doctrine in respect of the various categories of works results in une/ual treatment of these worksG thereby meeting only one part of the dual ob3ectives of copyright protection, namely recogniing creativity. The other part, namely, protecting the public interest in accessing the information contained in these works cannot be achieved if fair use provisions are not ade/uate. To sum it up copy right law as it exist today is /uite strong and effective. The protection it provided by the copyright act extends not only to the copy right with respect to cinematographic film and sound recordings in categories as understood in traditional sense but also in the modern aspect .
