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This article is written by Mohammed Shahjahan, pursuing Certificate Course in Intellectual Property Law and Prosecution from LawSikho.

Introduction

“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.”

Human beings possess the innate power of the mind and its intellect. When one creates something innovative from his own intellect, it’s called intellectual output. As a result, a human has the right to defend its own invention. Intellectual property law safeguards an individual’s freedom to create so that those who have not put in the creative effort do not receive the benefits. In essence, intellectual property rights (IPR) are the legal rights that regulate the use of human brains’ creations. In the entertainment sector, copyright enforcement is critical. Everyone in the world will profit from the amendments and advancements in the laws. Previously, copyright law did not recognise the rights of performers. Actors’ performances in cinematograph films and singers’ performances in sound recordings were not legally protected. As a result, a performer’s consent was not necessary to utilise the sound recording or “dramatic work.” In India, however, performance rights were recognised in 1994 under the Copyright Act, 1957. Copyright is one of the components of the IPRs, along with other things. In view of the present scientific, economic, social, political, and legal environment in India and throughout the world, the ideas of “copyright” and “neighbouring rights” have gained importance. The copyright topic has become more sophisticated. Previously, the preservation of literary and creative works was the exclusive purpose of copyright. Dramatic and musical compositions, cinematograph films, and sound recordings are all included in the current copyright system. Apart from that, the copyright law includes the rights of artists, manufacturers of phonograms, and broadcasting organisations, among others. The foundation for the creation of copyright law has been solidified by technical advancements over the last two centuries.

Objectives of copyright law

The copyright law is primarily intended to fulfil two goals. To begin with, the copyright law was created to promote and reward authors, musicians, painters, designers, and other creative individuals who use their expertise and capital to bring their works to the public’s attention. For a limited time, the author, or in certain circumstances his employer, is granted exclusive rights to reap the rewards of their labour. During this time, the copyright owner has the right to deny others access to the rewards of his labour and expertise in creating the copyrighted work. These are included in the economic rights. Aside from these rights, the copyright law recognises writers’ moral rights. Secondly, it creates an amicable balance between the rights of the author and public interests.

Justification of copyright law

Copyright law can be justified on the basis of four basic grounds. The author is, first and foremost, the creator or maker of the work, which is a reflection of his personality. He should have the ability to choose if and how his work is published, as well as to protect his intellectual offspring from harm or mutilation. Like any other worker, the author has a right to the fruits of his labour. He is compensated for his intellectual labour through royalties. Secondly, in today’s society, a significant amount of money is required to create various things, such as architecture or cinema. Because the aim of almost all works is to make them available to the public, the process of making them available, such as publishing and distributing books or recordings, is also expensive. 

These investments will only be undertaken if there is a fair chance of recouping the costs and earning a decent profit. Furthermore, if people who make creative contributions along the path of the work from its creator to its user are not rewarded, the doctrine of unjust enrichment may apply. Finally, the works produced by creators are a significant national asset. As a result, encouraging and rewarding innovation as a contribution to the development of national culture is in the public interest. Finally, the widespread distribution of works creates linkages between classes, racial groupings, and age groups, promoting social cohesiveness and providing a social benefit to producers. If a creator’s ideas and experiences can be communicated with a large audience in a short period of time, they contribute to the evolution of civilization.

The ambit of copyright protection

The scope of copyright protection is defined in Section 13(1) of the Copyright Act of 1957, which outlines the many sectors in which the author may be granted copyright protection. Copyrighted works are those that are protected by the law. (1) Subject to the requirements of this section and the other provisions of this Act, copyright shall exist throughout India in the following types of works:

  • Original literary, dramatic, musical, and creative works; 
  • Cinematograph films; and
  • Sound recordings.

Dramatic work

For the purposes of copyright registration, a dramatic work is a composition, generally, in prose or verse, that depicts a tale that is meant to be performed for an audience, such as plays, musicals, or operas. A dramatic work, rather than just reporting or summarising an event, generally shows it as it occurs. In certain theatrical works, music is used. For the purposes of copyright registration, a dramatic work is a composition in prose or poetry that depicts a tale that is meant to be performed in front of an audience, such as plays, musicals, or operas. A dramatic work generally shows the action as it occurs, rather than just reporting or summarising it. Some theatrical shows incorporate music.

The Copyright Act of 1957 defines ‘dramatic work’ as follows; “dramatic work” includes any recitation, choreographic work, or entertainment in a dumb performance whose scenic arrangement or acting form is established in writing or otherwise, but excludes cinematograph films.

If we look at Section 2 (h), we can see that the phrase “dramatic work” contains the following elements:

  1. Any recitation piece;
  2. Choreography or amusement in a slapstick display; and
  3. The scenic arrangement or performing style of which is predetermined, whether in writing or not.

It excludes a film cinematograph. “A choreographic piece or entertainment in a dumb show if converted to text in the form in which the work or entertainment is to be given but does not include a cinematographic film as distinct from a storey or script for a cinematographic film,” according to the English Copyright Act of 1956. The phrase “scenic arrangement,” which exists in the Indian definition, is absent from the English Act.

This provision of the Indian Copyright Act uses the same definition of “dramatic work” as the 1911 Act.

Difference between literary and dramatic work

Literary work 

The term “literary works” refers to a work of fiction, technical books or papers, biography, dramatics, thesis, screenplay, research work, compilation, tables, and computer programmes, including computer databases that are original or unique creations of literature. It can be asserted regardless of the work’s style, quality, or literary merit.

Copyright protects original literary works and the expression of ideas, although the expression does not have to be original or novel. 

  • The work must not be copied from another work but must originate from the author.
  • Two authors independently producing an identical work will be entitled to copyright in their respective works.
  • The emphasis is more on the labour, skill judgment and capital expended in producing the work. It includes tables, compilations and computer programs.

Dramatic work

A dramatic work is a sort of literary work as well. Any arrangement of acting a play, or a part for recitation, or choreographing work or dumb show entertainment, a visual arrangement, or acting work based on a fixed literary work is included in the Dramatic Works. Dramatic works, on the other hand, does not include any type of cinematograph films.

Original theatrical work and its adaptations are protected by copyright. 

  • Entertainment in a dumb movie.
  • Any piece or recitation, choreographic performance in which the scenic arrangement or acting form is fixed in writing otherwise.
  • However, a cinematograph film is not included on this list.

Protection of dramatic works

Copyright is one kind of intellectual property that gives protection to any content creators of original work in respect of their country’s intellectual property laws. Though the sections of their respective country’s statute may be different the key concepts of such laws are bound to be the same. 

The protected innovation laws of the United Kingdom, the United States of America, and India, similarly as most various nations across the world, at the present time, see copyright in sensational works. Performing rights should be ensured in the United Kingdom going before 1911 for “any incident, parody, play, show, force, or some other exciting piece or redirection” or “any melodic creation,” anyway under the Acts of 1911 and 1956, the choice to play out a work transparently is associated with the copyright of all insightful, enthusiastic, and melodic works.” The significance of passionate work in the United Kingdom Act of 1956 changes barely from that in the United Kingdom Act of 1911, and the differentiation might be colossal. As of late communicated, “any piece for recitation, choreographic work, or have a great time idiotic show, the amazing course of action, or acting design which is set recorded as a printed copy or something different” was assigned exciting work in the Act of 1911. 

In the Act of 1956, a dramatic work is described as including “a choreographic work or redirection in the doltish show, at whatever point diminished to writing in the construction in which the work or delight is to be presented”. The explanation “any piece for recitation” is avoided, maybe because it was considered silly to use it. Regardless, the shift from “at whatever point diminished to writing in the construction in which the work or entertainment is to be given” to “at whatever point lessened to writing in the design in which the work or redirection is to be presented” may be basic. 

It was commonly acknowledged that if a sketch or enthusiastic execution was shot or recorded at the hour of execution, it would be guaranteed under the Act of 1911, at any rate, this doesn’t radiate an impression of being the circumstance under the Act of 1956. In any case, the Copyright, Designs and Patents Act 1988 in the United Kingdom at present indicates that a “thrilling work” consolidates a “work of move or imitation.” The Indian licensed innovation law, as referred to in the chronicled improvement segment, has immovably followed British approvals, along these lines, in regards to the question of “enthusiastic works,” the Indian law is practically vague from its English same. As shown by the Copyright Act of 1957, “enthusiastic work” contains any construction for recitation, choreographic work, or have a great time an idiotic show, whose beautiful strategy or acting design is set recorded as a printed version or something different, yet dismisses cinematograph films. Enthusiastic works, incorporating any going with music, are obtained by copyright in the United States, and the articulations are not shown by rule since they have a grounded meaning. 

Past copyright office rules included works that are passionate in character, similar to the acting variation of plays for the stage, films, radio, TV, etc, dramatizations, executives, melodic comedies and tantamount manifestations, and pantomimes, inside the request for “shocking and electrifying melodic associations.” An enthusiastic work was in the past portrayed as “a work where the record isn’t associated anyway is portrayed by talk and movement,” or “a work that describes a story with the ultimate objective that the group sees the event or story live.” Copyright may get a show’s language, yet furthermore some different procedures for verbalization that the maker uses to credit passionate burden to the conditions in his work. Performers’ signs, voices, and positions, similarly to stage business, are not guaranteed by copyright. The new development, treatment, and verbalization of parts like theme, district, settings, conditions, musings, and uncovered fundamental plots include a copyright owner’s protectable property in a play, anyway the genuine segments are not protectable because it is just the surge of contemplations, not just the considerations, that is guaranteed. 

Essential requisites of a dramatic work

A dramatic work is something that can be written, printed, or reduced to a permanent form, provided that it can be reduced to the point where it reveals a plot or story and suggests how it should be conveyed, such as through dialogue or action. Dramatic performance is the name given to this type of work. As a result, for any work to qualify as dramatic work, it must meet three criteria:

(i) It must be reduced to a permanent form,

(ii) It must disclose a plot or story, and it must be performed in front of an audience.

(iii) It should be ready to be performed via dialogue, action, or a combination of the two.

Dramatic work and publication

The term “performance” refers to any type of visual or aural presentation, including those made by the projection of a cinematograph film, through radio broadcasting, through the use of a record, or through any other means, and includes the delivery of a lecture. It should be emphasised, however, that a public performance of a theatrical or musical work during the author’s lifetime does not constitute publishing of the work. In the event of such a performance, the work will remain an “unpublished work” that exists only in the author’s manuscript and must be treated as such. 

There can’t be oral publishing, and there can’t be a single copy publication. The test for whether or not there was a public issue would appear to be whether copies were available in sufficient quantities. If a dramatic work is unpublished at the time of the author’s death, the public performance of the work after the author’s death will be considered publication, and the laws governing “posthumous works” will apply. It should be noted that the copyright acts have never recognised an actor’s gag. A gag is a tiny occurrence or series of minor happenings, generally, of a hilarious character, that is intimately connected to and vocalised through gestures and intonations. A joke, especially on the music-hall stage, is defined by the dictionary as words introduced by an actor that is not in his part: Gag cannot be within the act; if it were, its authors would be actors, not the piece’s writer; it would also make no difference if the actor and the author were one and the same person, for the act does not extend verbal alterations and additions that vary from week to week and possibly from night to night in order to keep up with the times. Similarly, a good actor’s “stage business,” which includes mannerisms, gestures, emotions, and other acting methods invented to depict his own part, is not copyrightable. 

Pantomimes and choreographic works

In the United States, the 1976 Act has now specifically included “pantomimes and choreographic works” to the list of copyrightable subject matter. The meanings of the terms aren’t defined in this law, probably because they are well-known. Such compositions could previously only be protected if they were part of a theatrical production. It was recognised that pantomime portrays the full action via gestures rather than words and that denying pantomime the title of drama when performed by masters of the art would be a mistake. Similarly, choreography that told stories, represented characters, or portrayed emotions might be imitated. Although the legislation now expressly acknowledges all kinds of choreography, this does not cover social dancing or basic routines.

Copyright infringement in dramatic work

It is not required to copy the speech or dialogue in order to infringe on a dramatic work’s copyright. Furthermore, if a particular theme is used within the bounds of fair use, it is not considered an infringement. Infringement occurs when the same dramatic meaning is simply presented in a different way without the use of any original skill or labour. Piracy is evidenced by similarities in scenes and sequences. In Frankel v. Irwin, it was noted that piracy can also take the form of stealing a play’s action without any of the words. To be considered an infringement, the stage production must tell the same plot as the original drama. If the production tells a different story or enacts a distinct series of events or sequences. It amounts to piracy of the original play if a significant number of incidents, scenes, and episodes in an alleged infringing play are so nearly identical in detail and combined with those found in the copyrighted drama as to rule out all reasonable possibility of coincidence and point to the conclusion that they were taken from the infringed play.

There is no infringement if the reasonable inspection fails to identify the presence of any common characteristic between the two plays, save as an “incomplete skeleton” or “mere subsection of a narrative” not subject to copyright. The defendant, on the other hand, is found responsible for infringement if he reproduces the original copyrighted drama’s sequences with basically the same dramatic circumstances. The Copyright Act, 1957 lays down the following provisions in respect of the infringement of copyright: 

  1. When copyright is infringed: Copyright in a work shall be deemed to be infringed-

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) when any person-

     (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or 

    (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or 

   (iii) by way of trade exhibits in public, or 

   (iv) imports into India, any infringing copies of the work.

Ball defines a “dramatic work” as “a composition consisting of a series of events with various parts and characters, invented and arranged in sequence, capable of being so realistically represented and developed on the stage by the presentation of successive incidents and display of feelings and earnestness on the part of actors impersonating the characters” in his book ‘Ball on Copyright’.

Drama, according to Ball, is a portrayal of passion that grows in attention and emotion as the action progresses. It is a product of the human intellect, arrived at via the application of considerable autonomous talent, creative labour, or judgement, and capable of being exhibited through the mediums of dance and acting, as well as being written down. The Copyright Act of 1957 provides the most comprehensive definition. Other items may fall under the definition’s scope. It is necessary to touch on the main components of an original copyrighted theatrical work in order to investigate its violation.

Some important case laws

  1. Probably the soonest situation where the entertainer’s privileges came into question and where it was totally denied by the court to perceive the entertainer’s right in the cinematograph film was in Fortune Films International v. Dev Anand, here the court held that an entertainer has no option to control the utilization of their exhibition in the film. The entertainers were given a charge for their exhibition and after that, the maker was allowed to utilize their presentation in whatever they wished to utilize it. However, with the revision in the Copyright Act in 1994, entertainer’s privileges were given acknowledgement.
  2. The Delhi High Court chose in Super Cassettes Industries v. Bathla Cassette Industries that copyright and entertainers rights are two separate things and that if a tune is re-recorded, the first artist’s assent is fundamental. 
  3. The court in Neha Bhasin v. Anand Raj Anand resolved the subject of what comprises a live exhibition, holding that whether the presentation is recorded in a studio or before a group of people, both are viewed as live exhibitions in the primary occasion, and on the off chance that anybody uses such an exhibition without the entertainer’s assent, the entertainer’s privileges are supposed to be encroached.

Apart from the rulings listed above, there hasn’t been much progress in the subject of performer’s rights in India. However, as technology advances, new difficulties may develop in the future, putting the provisions of the performer’s rights to the test.

Conclusion

The benefits of a man’s mental labour are his right. He has the right to keep others from enjoying the benefits of his labour and to deny them the pleasures of his creation. There are enough case laws on the subject of copyright infringement in theatrical works. However, these situations are mostly discovered by foreign authorities. The Copyright Act of 1957 establishes a remedy in the event of a copyright violation. The expression of a concept is protected by copyright rules, but a basic notion is not. Although titles of books, songs, movies, and other copyrightable works appear to be copyrightable owing to their nature of works, they are not due to a lack of required originality. Also, copyright laws are designed to safeguard the integrity and dignity of creative works of ownership and authorship, not movie or book titles. 

This idea has just recently found its way into Indian legal doctrine. For a long time, the title and name of any cinematographic film or other work are remembered by the audience and viewers. As a result, it is becoming an apparent first step for all film creators to initially register the title of the film with the association in order to protect and maintain the monetary and other commercial interest in the film. Such registration just serves to safeguard the owner’s work and rights, as well as to assist the owner with copyrights, or the exclusive and sole right to the title of such work. 

Furthermore, registering the film’s title aids in preventing unfair and unlawful usage or adoption by others. In the event of an infringement, title registration assists the owner in approaching the courts for reasonable and rightful remedies. Such lawsuits can also assist the registered owner in obtaining compensation for any losses incurred, as well as a royalty (if applicable) from the infringement. “India recognizes trademark rights to the title of the film even if it is a single literary work protected under Indian trademark law. The adoption of a title that has acquired secondary significance by another party may result in source overlapping and confusion in the perception of the consumer.”

References


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