This article is written by Swati K, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
Copyright is the exclusive right that an author of an original literary and artistic work has in respect of commercial and non-commercial exploitation over his works. The Copyright Act, 1957 governs the matters in respect of Copyrights in India. The works that are covered under a Copyright by the Copyright Act, 1957 (hereinafter ‘Act’) include literary works like books, artistic works like paintings, dramatic works as a film and musical work like a song recording etc.
As per Section 2(y) of the Act, a work can constitute a literary, dramatic, musical, artistic work. It can also be a cinematograph film or a sound recording. Section 2(f) of the Act defines a cinematograph film which means any work of visual recording and the sound recording accompanying it. Copyright subsists in each of these works by virtue of Section 13 of the Act. Section 14 of the Act provides about the various rights a copyright owner holds. They are-
- in case of literary, dramatic and musical works the right to-
a) Reproduction of the work in any material form and its storage in any material form.
b) Issue copies of the work to the public.
c) To perform the work in public.
d) To communicate the work to the public.
e) To make any cinematograph film or sound recording in respect of the work.
f) To translate the work.
g) To make any adaptation of the Work.
- In case of a Computer Program right to sell or give it on commercial rental.
- In case of an Artistic Work the right to-
a) Store in any material form.
b) To depict the work in 2D or 3D.
c) Communicate the work to the public.
d) Make an adaptation of the work.
- In case of a Sound Recording the right to-
a) Make any other sound recording embodying it.
b) Store the sound recording in any material medium or format.
c) To sell or give for commercial rental the original sound recording or its copies.
d) Communicate the sound recording to the public.
Section 2(d) of the Act provides about who shall be an author in different copyrightable works. In case of a Cinematograph, Film author shall be the Producer of the film (sec 2 (d) (v)). Further, as per section 2(uu) a producer of the Cinematograph Film means a person who takes the initiative and responsibility for making the work.
As per Section 14(d) of the Act, a producer of a Cinematograph Film shall have following rights in the film-
- To make a copy of the film including a photograph forming its part and its storage in any medium in any form.
- To sell or give the film on commercial rental.
- To communicate the film to the public.
The producer shall also have the exclusive right to make an assignment or license the film to any other person in lieu of consideration or fee. The producer’s special rights are retained by him even after an assignment or license as per section 57 of the Act. The right to communicate to the public, a film, is hence a copyright granted to the producer of the film by virtue of the Act.
This article discusses whether dubbing a film constitutes the right to communicate to the public by the producer of the film.
What is dubbing
Dubbing, mixing or re-recording, is a post-production process used in filmmaking and video production in which additional or supplementary recordings are lip-synced and “mixed” with original production sound to create the finished soundtrack.[1] In other words, it is a process by which the producer replaces the original voices of the performers in the film with that of a dubbing artist’s in a language other than what the film was originally made in. For e.g. replacement of the original English dialogues of the film ‘We Can be Heroes’ in Hindi by various Indian Artists in order to make the film more understandable for the Indian diaspora.
Dubbing in a way is a manner of communication of a film to masses across the globe in their mother tongues or a language that is easily perceived by them. This helps a film to have a global reach and also generate higher revenues from its exploitation.
Communication to public
Section 2(ff) of the Act defines communication to the public read as under-
“communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.
Explanation.— For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.[2]
Whether dubbing comes within the ambit of public communication was explained by the Madras High Court in a landmark judgement which is discussed further.
Is right to dub a producer’s right to public communication
The Madras High Court in the case of ‘Thiagarajan Kumararaja v. M/s Capital Film Works and Anr’[3] held that subject to anything contrary, a producer of a film has the right to dub that film in any other language and it shall constitute his right to communicate to the public as provided in the Act.
Brief facts
In this case, a dispute arose between the writer of the award winning Tamil film ‘Aaranya Kaandam’ and the producers of the film whom he had authorized/ licensed to make the film in lieu of certain consideration. The writer/appellant filed a suit in the Madras High Court against the producers/respondents claiming that the producers were contemplating to remake the film and also dubbing it in other languages and this would thereby lead to infringement of his copyright in the script of the film.
Issues
In respect of whether dubbing was a right to public communication, the Court was faced with the following issues-
- Accepting that there was no assignment of the copyright in the script of the film, did the producer have the right to dub the film in another language?
- Assuming that the producer has such a right, can they still be injuncted from dubbing the film by the author of the underlying work?[4]
Appellant’s arguments
The Appellant contended that the dubbing of the film would amount to the translation of the underlying works of the film, and would thereby constitute a remake of the film. This would, in turn, infringe his copyright in the script since he never granted the producer Adaptation rights.
Respondent’s arguments
Countering these contentions, the respondents argued that these would not amount to infringement but would rather be a communication to the public which was an exclusive right granted to the producer of the film by virtue of Section 14(d)(iii) of the Act.
Court’s ruling
The Court while giving an expansive reading to the definition of Communication to the Public held that dubbing would fall within the ambit of the expression communication to the public. The Court also differentiated dubbing from translation and it was the producer’s right of communication to the public. It in no way affected the rights of the writer in the underlying script of the film in question. Taking into consideration the definition provided in Section 2(f) of a Cinematograph Film, the Court further held that the dubbing was done in respect of the sound recording of the film which as per the definition was very much a part of the Cinematograph Film.
The Court also held that dubbing the film was not a remake or adaptation of the film as there were no substantial changes being made in the underlying work that is the script of the film. Hence, there was no infringement of the Writer’s rights here. The producers of the film therefore will have no right to remake the film without the authority of the writer.
Conclusion
From the discussion above, it is a conclusive fact that it is the producer who is spending his money and foresees the making of a film. Section 2 (uu) of the Act very well explains this. The producer is the original author of the Cinematograph Film and it holds the right over it. This judgement of the Madras High Court has made the position of producers even stronger by its wide interpretation of ‘Communication to Public’ as provided in Section 2(ff) of the Copyright Act, 1957.
Dubbing is also a vital part of the Cinematograph Film and it cannot be challenged as a separate entity. The producer shall have every right over the sound recording too. Dubbing the sound recording, in any other language, shall very much constitute the Producer’s right of communication to Public. The Madras High Court’s Judgment though made it clear that dubbing amounts to public communication but the scope of producer’s rights especially in respect of remake still remains a little foggy.
References
- Wikipedia.org, “Dubbing (filmmaking),” [Online]. Available: https://en.wikipedia.org/wiki/Dubbing_(filmmaking)#cite_note-plexoft.com-1. [Accessed 27 January 2021]
- The Copyright Act, 1957
- Thiagarajan Kumararaja v. M/s Capital Film Works and Anr AIR 2017 MAD 32, 2017
- D. Joshi, “Madras HC: Producer’s Right to ‘Communicate to the Public’ Includes the Right to Dub,” spicyip.com, 14 Dec 2017. [Online]. Available: https://spicyip.com/2017/12/madras-hc-producers-right-to-communicate-to-the-public-includes-the-right-to-dub.html. [Accessed 27 January 2021]
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