This article is written by Sohini Goswami, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawsikho.com.
Table of Contents
Introduction
Almost everyone around the globe loves movies majorly for the experience that it gives us and the sheer joy it leaves us with. Though film-making is an intricate process which involves many different players, all equally instrumental in the entire process of filmmaking. Right from the script to the giant screen, everything revolves around Intellectual Property Rights. Starting from assisting the producers in attracting the funds for the movies to the technological innovations required for the movie-making process as well as the broadcasting and licensing rights associated with a particular movie project, everything comes under one umbrella- Intellectual Property Rights.
The undermining approach to Intellectual Property Rights in the global film industry is not new. Although there are many countries around the globe that have banned the use of common sharing websites, pirated movie content is still readily available everywhere. Although infringement issues or risks associated with Intellectual Property Rights can never be eliminated completely, there are provisions under different legislations of the Intellectual Property Laws that aim at regulating these risks in an organized way.
The article aims to throw light on the protection of scripts to actor’s rights under the law of Intellectual Property Rights and as well as broadcasting and licensing rights associated with a movie and trademark prosecution.
What is intellectual property?
Intellectual property is the protection granted to creations of all kinds – starting from literary, artistic to musical to symbols, names, shapes, sizes and images etc. According to the World Intellectual Property Organization, Intellectual property can be broadly classified under two heads:
Industrial property– Industrial Property includes patents for the protection of inventions, trademarks for the protection of names, shapes, sizes, symbols, etc. industrial designs and geographical indications.
Copyright– Copyright covers all kinds of literary, films, music, and artistic works as well as architectural designs. The right to protection under copyright also provides protection to broadcasting of radio and television programs, rights of performing artists, and those of producers in their phonograms.
Hence, Intellectual Property Rights are like any other rights. These rights help to provide protection to the different kinds of Intellectual Property as per the different legislations concerning the respective Intellectual Properties.
What is intellectual property licensing?
Intellectual Property License or an Intellectual Property Licensing Assignment enables the owner of a patent, copyright, trademark to retain ownership but gives another party permission to either use some or all of its rights for a specific amount of time for a fee or royalty.
The relevant provisions relating Intellectual Property Licensing are:
COPYRIGHT- Section 30(3) of the Copyright Act, 1957 states that the owner of the copyright may grant any interest in his copyright work by a license in writing signed by him or his agent.
TRADEMARK- Section 49 of the Trademarks Act, 1999 lays down that the registered user of the Trademark and the registered proprietor shall apply jointly by way of an agreement in writing to the Registrar for permitted use of the Trademark.
PATENT- Section 68 of the Patents Act, 1970 states that a patent license will only be valid if it is reduced to writing. Further, Section 69 makes it mandatory for a licensee to get himself registered with the Controller of Patents.
DESIGN- Section 30 of the Designs Act, 2000 lays down that a license will only be valid if it is submitted in writing and the same shall be registered with the Controller within six months from the date of execution or such further period as may be prescribed by the Controller.
The process of filmmaking is an intricate process. Each and every step of the process demands thorough care. Intellectual Property Rights acts as a caretaker of all these creations of the mind associated with the filmmaking process. It covers everything from the journey of the script to the giant screen.
Protection of scripts
The process of filmmaking typically starts with the script. Therefore, it is mandatory to ensure the script and its screenplay or in other words the execution of the main idea of the film is protected. The script is an original literary work therefore Intellectual property rights are attached to it. Generally, a producer hires a scriptwriter under a contract as prevailing under the present Copyright law. In case, the movie is a work of adaptation it is the duty of the producer to conclude an option agreement in order to secure the right to use this work before starting the next process of filmmaking.
In the event of post making of the film, if the option agreement is exercised, the copyright owner is paid an agreed fee for the ongoing right to use the work in the film. Certain rights like the publication rights, stage rights, and radio rights are also reserved with the original owner of the copyright in order to avoid any discrepancies in the future. A rights purchase agreement is also instrumental in this process as it is negotiated at the same time outlining the terms for securing rights to the screenplay, television rights and the right to release it in ancillary markets such as home video and new media. Whereas, an experienced producer will try to retain most of the rights with himself. It is imperative to protect the script or the screenplay of a movie in order to ensure that it is not infringed by anyone else.
Protection of actor’s rights
Once the script and the screenplay has been protected and the foundation has been laid for the process of filmmaking, the cast of the film is to be decided upon. In the process, the producer has to negotiate agreements with the actors and the performers. This bit can be tricky as it involves Intellectual Property related issues such as transfer of rights of the producer and an actor’s or performer’s conditions of employment. The legal status associated with an actor varies from one country to another. In some countries, actors are granted with a comprehensive set of related rights. However, in other countries, actors are looked upon as employees and are hired in the same manner with little or no bargaining power lying with them to negotiate conditions of contract of remuneration.
After the shooting is done, the work station of the filmmaking process shifts to the editing room, where the real magic happens. Right from the editing of scenes, to its music to effects, VFX (Visual Effects) everything that makes a movie capable enough of a release, happens there.
Broadcasting & licensing rights
Section 37 of the Copyright Act allows an extraordinary right – known as the ‘broadcast propagation right’ – to broadcasting associations, free of the copyright that rests with the maker or proprietor of the work which is being communicated. The term of the privilege is 25 years. In Asia Industrial Technologies v Ambience Space Sellers in 1997, the Bombay High Court held that this privilege is accessible to broadcasting associations, regardless of whether they are arranged outside India, in as much as the broadcast is accessible in India for review.
The privilege qualifies a broadcaster for keep others from participating in the accompanying as for the transmission of a program or a considerable part thereof:
- re-broadcasting;
- disseminating a broadcast without authorization in exchange for payment; and
- making unauthorized sound or visual recordings of the broadcast or reproducing, selling or renting such recordings.
The Copyright Act does not define a ‘broadcasting organization’, although ‘broadcasting’ is defined as ‘communication to the public’ by means of wire or by means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images.
Section 31D of the Copyright Act empowers broadcasting associations to demand the Intellectual Property Appellate Board – a particular tribunal for IP rights matters – to fix legal sovereignties for abstract and melodic works, just as sound accounts. The association must compensate sovereignties to the proprietor of the copyright at the rate fixed by the board. The arrangement utilizes the terms ‘radio station’ and ‘TV broadcasting’. Section 31D came in force with the rule in 2013, by which time the lawmaking body was very much aware of the Internet as a tool for content sharing.
The courts have as of late needed to wrestle with whether web real time features qualify as telecasters. The inquiry was replied in 2019 by the Bombay High Court in Tips v Wynk with regards to the legal permit system under the demonstration.
The court held that web-based web-based features can’t avail of the advantage of the legal authorizing system, as Section 31D applies just to radio and television telecasters. The prohibition of any reference to the Internet in the provision was pursued by the court as a cognizant decision to restrict the legal permitting system to radio and television telecasters as it were. The issue is sub judice in advance and the issue is yet to be settled.
Trademark prosecution
Financers and public figures often resort to trademark and passing-off laws for legal protection of their personality rights. In Star India Private Limited v Leo Burnett (2002), the Bombay High Court held that for merchandising of characters, it is imperative to have gained some public recognition and life independent of the original product or context in which they appear.
In the context of merchandising the image of real, living persons, in DM Entertainment v Baby Gift House (2010), the Delhi High Court applied the common-law principle of passing off and granted an injunction against the unauthorized sale by a third party of dolls resembling a renowned pop singer, without their permission, in view of the possibility of consumers being deceived into believing that the dolls had been in fact endorsed.
In this regard, it can be concluded that any third party is not allowed to sell dolls/ toys of living personalities, fooling the public to believe that they are being endorsed by the personalities themselves.
Conclusion
The media and broadcasting industry is developing quickly and traversing its own customary models towards new field avenues. Normally, new difficulties are rising with such development. It is cheering that the courts in India are resolving such issues in accordance with worldwide statute, while remembering the parity to be kept up between opportunity of articulation and the privileges of substance proprietors.
India has emerged as one of the crucial markets in relation to entertainment in recent times. Considering this, it is quite evident that the chances of infringement and exposure to piracy in such a global market will be common. To ensure that intellectual property rights are free from violation, these need to be protected. With regard to the above discussion, the laws in force today are competent enough to protect Intellectual Property Rights. Although with each passing day, as we are moving forward to a more digitally equipped world there might be some areas of the law which need more regulations, thereby increasing the scope for more work to be done in this field
References
- https://www.wipo.int/publications/en/details.jsp?id=256&plang=EN accessed on 12th of September, 2020 at 5:46 pm
- https://www.wipo.int/pressroom/en/stories/ip_and_film.html accessed on 8th of September, 2020 at 11:05 am
- https://www.obhanandassociates.com/blog/spider-man-marvel-and-ip-licensing-in-films/#:~:text=The%20terms%20of%20such%20licenses,production%20of%20the%20films%20themselves.&text=(owned%20by%20Sony%20Picture%20Entertainment)%20in%201999. Accessed on 10th of September, 2020 at 4:30 pm
- https://copyright.gov.in/Documents/CopyrightRules1957.pdf accessed at 10th of September, 2020 at 9:11 am
- http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf accessed on 11th September, 2020 at 3:38 pm.
- http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_43_1_trade-marks-act.pdf accessed at 14th September, 2020 at 2:10 am
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