This article is written by Sharad Yadav from the Institute of Law, Nirma University. This article gives all the information regarding the laws which govern and regulate the film industry.
Table of Contents
Introduction
India is the homeland of the largest produced films across the world. In 2013, around 1724 films were produced here whereas in the USA it was around only 738. The film industry plays an important role in changing the mindset of people. That’s the reason why we need strong laws which can protect the rights of the producer of the work as well as laws to regulate such a platform which might create a horrible impact by visual and audio representation.
Conceptualization of project and authoring of scripts
- Agreement – It is the transfer of the ownership of the copyright as per the terms and conditions of the contract.
- License Licensing – It means that your work is transferring only the interest in the copyright while retaining the ownership of the copyright.
There can be no copyright for an idea, subject matter, themes, news etc. It exists only in the material form to which the idea is translated. It is necessary to register your work before you send it to any other person. For registration of the script, one can contact the Film Writer Association in Mumbai.
Infringement of copyrights with respect to story and script
According to Section 17 of the Copyright Act, 1957 which recognizes the author of the work to be the first owner of that work but there are some exceptions there. In the case of dramatic and literary work, the author will be the person who creates it. In the case of the cinematograph, the work producer will be the author. If any person has done any work in the course of employment then the right shall be granted to the employer, not the employee. The employer will be the first owner of the copyright.
Remedies
If anyone infringes the copyright of another person then the person will be held liable under Section 63 of the Copyright Act. The first-class magistrate can initiate a proceeding for copyright infringement. The offence is punishable with imprisonment from 3 to 6 years and with a fine from INR 50000 to 200000.
Remaking of film rights
All the motion pictures fall under the definition of a cinematograph film and the term “Author” in relation to a cinematograph film refers to the person who produces such motion pictures. Section 14 of the Copyright Act defines “copyright” as an exclusive right with the owner to make literary, dramatic, musical and artistic work. and Section 51 of the Act provides that if anyone does anything against the exclusive rights of the owner without the licence from the owner then it would amount to copyright infringement. The term copy is covered under the term” adaptation” which provides the owner of the copyright with an exclusive right to make a copy of the film substantially on the same story.
In India, for remaking a movie the licence of a remake is granted to a third party. In the event that the owner of the original work wants to own the copyright in the remake, these rights shall have to be assigned by the licensee to the original owner by way of explicit contract.
Securing the title of the frame
The title is one of the most important things whether it is a movie, book or other things. Every film producer tries their best to give a unique name to the movie so that it reaches out to the general public and captures the mind of the people. There is a practice that is followed by the majority of the film producers and it is the registration of the title and plot of the film with the ‘Indian Motion Picture Producer Association (IMPPA)’. This ensures the safeguard and protection of the movie plot but does not protect the title of a movie used by another filmmaker.
Protection of the title of the film with the help of intellectual property laws
Under the Indian Copyright Act, protection is conferred on literary, dramatic, musical, artistic, cinematograph films and sound recording, therefore it’s not the title alone. If copying a title alone is not the plot of the work then it does not fall under the ambit of copyright protection. The title of a single literary work in order to get the protection under trademark needs to acquire a secondary meaning. If the title acquires the secondary meaning then it will be protected under the trademark. Even if the work is not yet released but a sufficient amount of pre-release publicity is there of the title, then the title may acquire recognition. Under Section 9 of the Trademark Act, 1999 which specifically gives trademark registration to very well known trademarks that acquire the distinctive character.
Protection of music, lyrics and related recordings
Copyright of a song is protected by the Copyright Act,1957 and the Copyright Rules, 2013. There are various stages that are present before a song is released. First, the writer writes the song, then it is given lyrics by the composer of the song, then the singer sings and records it in the studio. But many times the whole process is performed by a single person and he is the owner of the complete song.
Ownership of a song
Lyricist
It is a person who writes the lyrics of a song. He can get the copyright over the lyrics of the song.
Composer
It is a person who gives the music to the lyrics of the song. He can claim the copyright for the background music in the song.
Singer
It is a person who sings the song. He has the right over the sound recording of his permanence. He can claim copyright to protect his copies and recording made by him.
Producer
It is a person who takes the initiative and responsibility for doing the work. He can claim the copyright for his recording of the song.
The legal framework in case of infringement of copyright and piracy
- Copyright – It is a type of intellectual property that gives the owner the right to make copies of the work. The work can be literary, artistic, musical, education or in any other form.
- Piracy – Piracy is when someone copies, distributes, sells without the permission of the true owner. It creates a huge loss for the true owner. It is a form of online copyright infringement wherein movies, songs, games etc. are sold out.
India is now moving towards digitalisation in various sectors. With the increase of internet users and usage, copyright infringement has increased as well. People share content without the owner’s permission. Various movies are leaked online even prior to coming to the cinema complexes.
In our country the Copyright Act,1957 and the Information Technology Act, 2000 deals with the issue of piracy. In 2012 the Copyright Act was amended because the previous one was not sufficient to deal with the issue of copyright. The Copyright Act, 2012 added new Sections 65A and 65B for protection of the copyright.
Section 65A
It states that any person who circumvents an effective technological measure applied for protecting any right which is conferred by the Act, with the intention of infringing such a right shall be liable for the punishment of imprisonment which may extend to two years and shall also liable to fine
Section 65B
It deals with the protection of the rights management information which includes the name of performer, copyright information or an ISBN number that is used for identification. This section states that if any person removes or alters any rights management information without the proper authority or distributes, copies any work knowingly that electronic rights management information has been removed or altered without the proper authority they shall be liable to fine and imprisonment which may extend to two years. Also, Section 66 of the IT Act provides the punishment of imprisonment upto 3 years with fine up to 2 lakh rupees for illegally online distribution of copyright content.
The existing contractual relationship amongst the crew members
Actor service agreement
This agreement is entered between the main actors and the producer of the film. This agreement contains various provisions such as number of working hours per day, preventing the actor from acting in a different movie during the contract period, appearance, amenities, transport, public liability insurance for covering the damages which may arise due to an accident.
Co-production agreement
Many times producers collaborate with other products so that shortage of funds don’t turn. This agreement should specifically mention the name of the movie and the purpose of the parties for which co-production is undertaken. This agreement also deals with the profit share amongst the producers.
Film director agreement
The director agreement is executed between the director and the production company. In which all the services rendered by the director will be included in the contract. The budget of the film is discussed in advance so that no confusion occurs in the later stages.
Location agreement
Location plays a very important role in a movie. A location agreement is entered to use a particular property for the shooting of the movie. The location agreement is formed between a location manager or producer and the owner of that particular location. In this agreement, various kinds of information are there such as time duration of staying along with the other provision for the retention of the time. The owner of the location is exclusively right to prevent use if anything happens contrary to the contract.
Legal principles governing censorship
Films
We know that India is the largest film industry in the world; roughly around 1250 featured films are released. Around 15 Million people see films in India every day. K.A. Abbas v. Union of India is perhaps the first case where the question relating to the censorship of films arose. According to the government, there is a need for reviewing these films because it impacts a large audience. Currently, before releasing any film in the cinema complexes, the Central Board Of Film Certification (CBFC) issues the certificate. CBFC was set up under the Cinematographic Act, 1952 along with the Cinematographic (Certification) Rules, 1983, set out certain manners in which films are to be certified.
There are 4 types of a certificate which is issued by the CBFC:
- U – Unrestricted public exhibition(It is suitable for all age group)
- U/A – Unrestricted exhibition(Except for children below the age of 12 years)
- A – Restricted to adults(Only person with the age of 18 or above)
- S – Restricted to a specialised group of people such as doctors, engineers etc.
This certificate rule also applies to the films imported to India but the certification does not apply to the films which are specifically made for Doordarshan because the Doordarshan channel is exempted from the provision and it has its own method and system for examining such films.
Television
All matters related to television network, broadcasting are governed by the Cable Television Network Regulations Act, 1995 and the Cable Television Networks Rules, 1994 which are there to restrict any program that does not follow the “Program code” and restrict any advertising if not following the Advertising Code set out under the Cable Television Network rules, 1994. Broadcaster and cable service providers are allowed to run films only if it is certified with the “U” category. If “U” certificate is not there then they can not telecast the films
Over the top (OTT)
In recent years we have seen that the demand for OTT applications (Netflix, Amazon Prime etc.) has increased dramatically because anyone can watch it at any time by using the internet. Till now these platforms are censorship-free. Certain OTT players are considered to be following self-regulation of the content which is provided by them. There are also some OTT applications that even show their own certificate which a film category belongs to.
Case laws
Sholay Media and Entertainment Pvt Ltd. v. Parag M. Sanghavi
In this particular case, the High Court of Delhi granted the protection under the trademark and issued the injunction for the famous film ”Sholay”. This led to the change of the title from “Ram Gopal Verma ki Sholay” to “Ram Gopal Verma ki aag”. The court stated that Sholay has acquired a secondary meaning as acquired the status of honour amongst other movies.
Krishika Lulla and Ors. v. Shyam Vithalrao Devkutta and Ors
In this present case, the Supreme Court ruled out that copyright does not subsist in the titles of literary works which includes the movie also. This protection can be granted only by the trademark. In this case, the respondent claimed having written the synopsis with the title “Desi Boys” which was circulated to two people via email who circulated this to another two persons. After some time the movie” Desi boys’ was released. The respondent bought a suit against the appellant for copyright infringement. The main issue which came before the court was whether the respondent had a copyright in the title of the said movie. The court said that as per Section 13 of the Copyright Act,1957, title can not be considered as works for the purpose of the copyright.
Nokia Corporation vs. Movie Express
In the present case, Nokia filed the application for grant of ex-parte injunction in the High Court of Delhi against the defendant for producing the movie in Telugu with the similar title “Mr Nokia” which sounds similar to that of their registered trademark “Nokia.” Delhi High Court passed the order restraining the defendant for using the title Mr Nokia or any similar name which might be identical (phonetically, structurally or visually) with the applicant registered trademark “Nokia.”
Conclusion
The film industry plays an important role in changing the mindset of the general public. Some social issues are depicted by visual and audio representation. All the laws need to be enforced carefully. One of the most critical things is the censorship of the movies. Many argue against censorship as it snatches the freedom of speech and expression of the artist. Hence, with the passage of time, some laws need to be reformed. Many new things are coming such as OTT platforms where new laws need to be formed as it is now being watched by many youngsters.
References
- https://www.guinnessworldrecords.com/world-records/largest-annual-film-output
- https://www.indiacode.nic.in/bitstream/123456789/1928/1/A1995-07.pdf
- http://www.legalserviceindia.com/legal/article-351-censorship-of-films.html
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