This article is written by Gaurav Prakash, an advocate.
Bollywood as we all know is notorious for copying stories, even posters from Hollywood, Korean movies and even the Southern Indian movie industry. Back in 2007 when Salman Khan was making a movie with Govinda. The movie was scene by scene copy of the Movie Hitch, in the same year movie Dhamaal was the copy of famous Hollywood movie It’s a mad mad mad world. It was not the first time that any hindi movie has copied scene by scene from another movie, Bollywood has made some of their biggest movies this way. Mahesh Bhatt who is considered one of the most respected directors of the industry has produced/directed movies which were clear rip-offs from Korean, Hollywood movies. Starting with the sensational hit movie Murder was a copy cat of Hollywood Movie Unfaithful, Awarapan which was made in the year 2006 was inspired scene by scene from the Korean movie A bittersweet life, another movie named Jannat 2 interestingly this time Mr. Bhatt was accused of stealing the script of this movie from a writer named Kapil Chopra. Mr. Kapil Chopra had sent the script in the past to Mr. Mahesh Bhatt and the list goes on. Bhatt sahabh got no chill.
But the question arises why so much emphasis was given to the movie Partner in the precedent paragraphs. The answer to the question is that it was the very first incident that producers of this movie namely Eros International and K sera were sued for plagiarism by any Hollywood Production Company. Sony pictures, owners of the Film Hitch contemplated a $30Million suit against both the Indian producers for copyright infringements. Partner eventually got released with Sony acquiring the world exclusive satellite broadcasting rights. Bollywood being Bollywood did not resist its lust for copying the west. In the year 2010 a movie named Knockout was released, now this movie was an unauthorized remake of Hollywood movie Phone Booth. Phone Booth is a 2003 American movie starring Collin Farrell. This time the copycat was both sued and persecuted in the court of Justice.
The plot of the film was copied from the Hollywood movie Phone Booth, whose makers filed a case against the makers of Knock Out. The court ordered a compensation of INR 12.5 million to be paid to the makers of Phone Booth. Boom Justice has been done. This case is also considered to be a landmark case as it also constitutes the highest payment for copyright infringement in our country. Now after that an example was set and these Bollywood producers started taking remake rights from the original movie producers. The latest example is the upcoming movie of Superstar Amir Khan ‘s Laal Singh Chadha which is an official remake of Hollywood movie Forest Gump (1994) movie starring Hollywood Star Tom Hanks.
Let us read about the legal provision of copyright law in our country.
Intellectual Property has been classified into two types one pertains to Industrial Property and another is related to Literary Property. Copyright law comes under Literary property. Copyright is an exclusive right granted by law for a certain term of years to an author, composer or his/her agent or assignee etc to print, publish and sell copies of his original work. Now the question arises: what is an Original Work? Whatever work which was never made available to the world before is called an original term. Whatever work which is worth getting infringed is also worth getting protected by law. So, copyright relates to artistic creations, such as books, music, paintings and sculptures, films and technology-based work such as computer programs and electronic databases.
The idea of copyright protection dates back to the 17th Century, it began to emerge with the invention of printing machines, which made it possible for literary works to be duplicated by mechanical process (Industrial Revolution) instead of being copied by hand. To acknowledge this demand the first copyright statute was made in England in the year 1710. This statute was known as The Statute of Anne. This Act was quite revolutionary as it gave the right to the author the sole right and liberty of printing his books. From England it got passed over to USA where the first copyright act of America was enacted in 1790, which provided for the protection of books, maps as well charts for a period of 11 years from the first publication, which could be renewed for a further term if the author was alive on the expiry of the first term and subject to strict requirement of registration and deposit. At present American law is contained in the Act of 1976 which happens to be considered as one of the most important copyright laws in the world.
Copyright and its relevance in Indian Entertainment Sector
In India copyright is the creation of a statute called Copyright Act, 1957. Section 16 of the Act provides that the copyright Act does not affect the existing rights, and no person is entitled to copyright or similar rights in any work, published or published otherwise than under and in accordance with the provisions of this Act, or of any law for the time being in force. Copyright is not a single right; it consists of several rights for the same work. Copyright law does not prevent a person from taking what is beneficial or useful from an original work and create a new work. If it happens then this will close all venues of research, awareness, skill and knowledge for those who needed them the most. There are basically two main objectives of copyright:
First to protect the rights of the original producer of any literary worker. For example, a singer is entitled to get royalty on the songs sung by him. If someone else wants to remix the song or wants to sing the same song then the singer should mention that in the cover album so that people are not confused. The original creator of the song should get their due respect, fame as well as the fortune for their hard work. Thus, their objective is to encourage authors, artist to pursue excellence and originality in their respective fields.
Second, copyright allows people to make free usage of the copyright material. A list of these uses has been listed in Section 52 of the Copyright Act 1957:
- Private or personal use, including research.
- Criticism or review, whether of that work or of any other work.
- The reporting of current events and current affairs, including the lecture delivered in the public.
There is always a misconception that copyright also provides protection to the person who communicates the idea for a story. A person who has an idea for a book, or a picture, or a play does not become an author as there is no copyright in mere ideas or thoughts. It is one who clothes the idea with words, pictures or drawing is the author. It was held in the case of Donogue V. Allied Newspapers Ltd. (1937) 3 All ER 503, it was observed that “ If the Idea, however original is nothing more than an idea, or is not put in any forms of words, or any form of expression such as a picture, then there is no such thing as copyright at all. “The idea- expression dichotomy has been a fundamental problem in copyright law. Mere ideas with no implementation or execution of that idea cannot attract the law of copyright. Ideas should be reduced into writing or into some tangible form, in any language form to those who are the targeted audience of that subject then only it can attract the copyright infringement acts.
A motion picture falls under the definition of a “cinematograph film”, and the term “author” in relation to a cinematograph film means the producer of such motion picture. Section 14 of the Act defines “copyright” as an exclusive right with the owner to make an adaptation of the concerned literary, dramatic, musical or artistic work. Additionally, section 51 of the Act provides that if an individual does anything, the exclusive right to which has been conferred upon the owner of the copyright, without a licence from such owner, the copyrighted work is infringed.
The Copyright (Amendment Act) 2012
In order to make the copyright relevant and in conformity with the two World Intellectual Property Organization (WIPO), it was amended in the year 2012.Some of the new sections were added and some of the existing sections’’ scope was expanded by amending them. These two categories are discussed below:
New Sections Introduced- The amendment introduced a new definition of following expressions:
- Commercial rental (section 2 (fa))
- Rights Management Information (Section 2 (xa)
By introducing Rights management information in Section 2 (xa), India brought copyright act 1957, in compliance with Article 12 of the WIPO Copyright act Treaty and Article 19 of the WIPO Performance and Phonograms Treaty. This definition was added with the objective of helping the content creation industry to effectively combat digital piracy through the retention of identification information in the content and control it through a digital rights management (DRM) system.
Section 65A and 65B was introduced to punish persons guilty of piracy by using technology to take away somebody copyrighted work and that material to make profits.
Performer’s rights restricted– The copyright (Amendment) Act, 2012 has restricted the performer’s right. In conformity with the WPPT, the amended Act recognizes the right of not just music directors and persons who create literary works but also performs on stage, as a new section 38(A) has been inserted which gives exclusive rights to the performers. This act states that the performers are entitled to royalties in case of making of the performances for commercial use.
Apart from these acts one of most revolutionary provisions of the Copyright Amendment Act 2012 is Section 31b, ensure that the visually impaired and those with disabilities can gain access to the copyrighted material in any form and format without causing infringement of copyright.
Section 31 (b) also states that provided that, in cases where the exception to copyright infringement does not apply any person working for the benefit of persons with disability on a commercial basis (on profit basis) may apply to the copyright board by paying a royalty, for a compulsory license to publish a work in accessible format for the persons with disability.
Now let us look at some leading case laws which ensured the protection under copyright law.
Urvi Juvekar Vs Global Broadcast News Ltd reported in [2008 (36) PTC (Bom)]
Facts of the case is that in 2005 The Plaintiff a documentary film maker conceived the idea of a reality television programme, which would follow the citizens from different parts of the country as they set out to solve a civic problem of their choice in their locality. She transformed her idea into a concept note and was titled ‘’work in progress’’, which she further registered with the Film Writers Association in November 2005. She approached CNN-IBN (defendants) and discussed her concept note with the channel representative, so that the two could together make a television programme. From May 2007 defendant used the idea and make a programme titled ‘’Summer Showdown’’.After this plaintiff sought an injunction against the CNN-IBN news channel from broadcasting the programme titled’’ Summer Showdown” on the grounds that the defendants have committed (i) a breach of confidentiality and (ii) infringement of copyright of the plaintiff in ‘’Work Progress’’.
Issues- Whether the concept note of the plaintiff enjoyed protection under the copyright law as a literary work.
Decision- First of all the court distinguished the law relating to breach of confidence from that of copyright. The court then observed for the purpose of breach of confidence, it is settled law that a party can claim confidentiality even in relation to a concept or idea, unlike in an action for infringement of copyright.
In this case, the plaintiff case is that the treatment, format and production plan which were disclosed in confidence were exploited without permission. The court observed that ‘the plaintiff had succeeded in making good all the four criteria for considering grant of ad-interim relief in relation to the action of breach of confidentiality.
The court after evaluating and comparing the plaintiff’s and the defendant’s work held:
- The main theme of the plaintiff’s work has been substantially lifted and borrowed.
- The changes introduced by the defendant’s to their own work were only cosmetic and the dissimilarities pointed out by the defendant were trivial and insignificant.
- Viewed from the point of view of an average person, the Defendant’s work is based or taken from the original work of the plaintiff.
Zee Entertainment Enterprises Ltd V. Gajendra Singh reported in 2008 (36) PTC 53 (Bom)
The facts of the case is that famous television reality show producer Gajendra Singh during his employment with Zee Entertainment originated the format of a television game show titled’ Antakshari Saregama’ and reduced the same to writing in the format of a concept note which was supposed to be a departure from the traditional ‘’Antakshari ‘’ game. The defendant was alleged of copying the plaintiff’s game show in all material respects without any license or valid authorization for the show’’ Antakshari- The Great Challenge’’ which was telecasted on Star One. The plaintiff contended that he is the owner of the copyright in the literary work and the cinematograph film embodying the television game and is entitled to exclusive use thereof/or to license the same and that the plaintiff has not licensed or assigned it in respect of the game to anyone including the defendants and defendants have therefore infringed the plaintiff’’s said copyright. So, the plaintiff filed a suit for perpetual injunctions before Bombay High Court.
Issue- Whether Copyright exist in concept of Television Serial
Decision- The court held as follows:
- As a general proposition, a concept note is an expression used in the television/film industry and a concept note contains literary work, and is entitled to be protected under the Copyright Act if it contains work which Is copyrightable under the said Act. If it contains copyrightable work, the author/owner thereof would be entitled to the protection afforded under the Copyright Act, 1957.
- The mere use of the term concept note however would make no difference. It would be necessary for a court in each case, to examine whether the concept note constitutes work which is copyrightable & entitled to protection under the provision of the Act.
In this case although High Court did accept the contention of the defendant that the concept note was fabricated, yet court noted that,
Firstly, there was no record regarding the creation of the concept note.
Secondly the concept was not referred to anywhere on record.
Thirdly despite the serious allegations made by the first defendant regarding the concept note, the plaintiff has not adduced any evidence which led to the concept note being stored in the plaintiff’s computer.
So, the court came to the conclusion that the concept note has not been established by the plaintiff, therefore it is not necessary for the court to consider whether the material contained therein constituted literary work and is entitled to protection under Copyright Act.
Later on the plaintiff and the defendant entered into an out of court settlement for Rs 2 crores.
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