This article is written by Riya Rathod, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.
Intellectual property is a class of property that is an outcome of the human intellect, is intangible, and provides the owner with exclusive rights over it. It refers to the creations of the mind like literary, artistic, or musical works and sometimes can also include designs, words, scientific inventions, and even symbols. The four broad categories of intellectual property rights are copyright, trademark, patents, and design rights.
The Indian media and entertainment industry is expected to reach US dollar 100 billion by 2030. Due to the tremendous growth in the media and entertainment industry, it is essential to understand the role of intellectual property rights associated with this sector. Out of all the IP rights, copyright and trademark are the linchpin of this industry. Copyright grants protection against infringement of content and offers recognition to the rights of the creators while the trademark protects the movie titles, key characters, and other film elements. However, along with the expansion of the industry comes the issue of violation of IP rights, cyber laws, copyright and trademark infringement. The legislation and judiciary promote creativity by ensuring its free dissemination while constantly trying to prevent misuse. This article intends to cover intellectual property laws governing the media and entertainment space, the role of IP in different facets of media and entertainment, and the need to protect it.
Governing IP laws
India is a signatory of the TRIPS Agreement and various other International IP treaties which provide more extensive protection of intellectual protection. The key statute which protects the media and entertainment industry are:
These statutes are exhaustive in terms of recognizing the original content, owner’s rights, remedies for infringement, fair use, defences, broadcasting, moral and performance rights. They also accord border measures against the import of infringing copies and materials. It is very crucial for small and struggling artists to protect their work in the initial stages of their career otherwise it will be misused by strong competitors resulting in catastrophic results.
Role of copyright law
Section 14 of the Copyright Act, 1957 defines copyright as the exclusive right over the content or work and the right to do or authorize the doing of certain acts in a work. The remedy of copyright provides protection to literary, musical, dramatic, and artistic works such as poetry, novels, movies, and songs. Due to the cut-throat competition in the entertainment industry, it has become absolutely necessary to prevent copying of the original work of the creator. However, in India, it is not necessary to register for copyright to gain protection but in case of any legal dispute, it becomes easier for the plaintiff to seek quick relief.
Copyright is the means that enables the media and entertainment industry to protect the original work on which the owner has exclusive rights. The scope of copyright protection however cannot be restricted solely to an idea. For availing the benefit of copyright law, the work must be expressed in a material form. The copy must be substantial and not trivial to be held actionable for infringement in court. Lastly, there would not be infringement when merely the theme of the two works is the same but has been expressed in a different way.
The absence of copyright in work results in a huge loss to the owner who has put his time and effort into creating the content. In today’s scenario where copyright infringement is so prevalent, copyright registration has become absolutely necessary to avoid the breach. The judicial precedents show a trend that registration of copyright is necessary to enforce civil and criminal remedies in the case of infringement. A case in point is the case of Dhiraj Dharamdas v. M/s Sonal Info Systems Pvt Ltd(2012). The Bombay High Court held that unless the infringer knows that there is any particular owner of the copyright in India or that such owner of a copyright has registered his work under Section 44 of the Act before he did, attributing infringement by him or on his part intentionally or unintentionally would be preposterous.
Role of trademark law
Trademarks are signs, symbols or an expression that are used to distinguish the goods or services of one person from another. The Trademark Act 1999 confers protection to the names of songs, movie titles, music albums, movies, famous characters subject to certain conditions. The title needs to be unique and original otherwise it is unlikely to be protected if it’s merely generic in nature.
Trademark is featured predominantly in the entertainment industry. The movie studios use trademarks to create a unique identity and to stand out in the market. The movie industry is also not untouched from legal issues such as deceptively similar song titles, unauthorized use of film titles, and passing off, nonetheless remedies for trademark infringement are available in the Trademark Act.
Online platforms and intermediaries
Earlier the dissemination of content was limited only to the satellite mode through television but with the progress of time, the internet has broken these traditional barriers. The rise in internet usage has formed new avenues to monetise and create content with access to wider audiences. Online platforms if used rightly can add enormous advantages and revenue to the industry. Youtube is one such example of an online platform that has millions of users and content creators. However, owing to the vast nature of the content available it is difficult to undertake human supervision. Youtube also safeguards the content creators by way of strict policies like copyright strikes and copyright verification programs. There has been a constant battle between freedom of speech and content infringement. In Marico Limited v. Abhijeet Bhansali (2020), it was held by the Bombay High court that the defendant’s video was just his opinion and was too trivial to constitute legal action.
Intermediaries are organisations that allow people to use the internet. The courts have time and again emphasized that social media platforms that act as intermediaries are not liable for infringing content uploaded by users provided that they take immediate action to remove the content.
Celebrity rights is a significant aspect of the entertainment industry where intellectual property rights play a major role. Celebrities have the right to exploit their identity and make riches out of it. In pursuance of utilising their identity, they often lend their voices and faces to commercial and non-commercial entities but often there are instances where the identity of the celebrity has been used without their permission leaving them conscious about the issue of privacy and abuse they face in exchange for the monetary benefits. There are various international conventions such as the Universal Declaration of Human Rights which have recognised these rights. Further, copyright and trademark also play a key role in the protection of celebrity rights in India.
Although the word celebrity has not been defined in the Copyright Act with regards to their protection reference can be made to Section 38 of the Act which provides the performer’s right to any performer in relation to his performance for a period of fifty years. Section 39 of the same Act states that any person who makes a recording of the performance without the consent of the performer shall be held liable for infringement of the performer’s right.
The courts had from time to time passed consequential decisions with respect to the rights of celebrities. Copyright gives protection to the photographs, books, or any adaptation which concerns the celebrity. The court has also extended the protection to fictitious characters. However, it should be noted that copyright protection is not granted to the name or image of the celebrity in India.
One of the ways to generate ancillary income beyond theatres is the character merchandising that stems from the exploitation of characters based on a movie. This is gaining popularity in India owing to its commercial nature and tremendous revenue which can be generated through it. Due to the vast ambit of character merchandising, the existing intellectual property laws may not be sufficient to protect the entire legality or vulnerability. However, trademark law protects the image of the character and copyright law protects the individual’s creation.
In DM entertainment v. Baby Gift House (2010), the Delhi High Court granted an injunction for the tort of passing off against the third party for the unauthorised sale of dolls resembling a famous pop singer without their permission due to the possibility of consumers getting deceived.
Need to protect IP in media and entertainment
Rapid advancement in technology is making an enormous impact on the entertainment industry making it more vulnerable to infringement. The existing legal regime may sometimes fail in protecting the rights of this industry nevertheless, the courts have time and again have established rules which have filled this gap. Media and entertainment have diversified fields involving television serials, movies, radio, music, and OTT platforms such as Netflix and Amazon Prime. Inside this massive industry goes the work of directors, producers, screenwriters, actors, artists, and technicians who work day and night in the journey of the film from script to screen. Considering the labour and money involved it is very important to protect the intellectual property rights of this industry. The protection of intellectual property secures unique ideas and creations and also accelerates the growth of the business.
Intellectual property laws have always played a major role in protecting creative minds especially copyright and trademark. The copyright law mainly protects the literary work of the author from misuse or use without consent for commercial gain. The trademark law on the other hand accords protection to any signs, goods, or services. Intellectual property has paramount importance in the media and entertainment industry as it gives the necessary protection thus preventing the misuse of their work and accelerating the business growth.
In the digitised era, intellectual property plays a more significant role. As more and more content is being uploaded online, disputes such as copyright piracy are rising. The work of the authors and artists needs protection after they have been created to avoid its misuse by other persons. The role of intellectual property law comes into play at this stage which has been performed to the best of effect since its inception. It has been amended from time to time to resolve the issues which crop up relating to the rights of the creator in the modern era.
- Iyer, Swarneeka. (n.d). Importance of Trademark vis-à-vis artistic work in the media and entertainment industry. Vidma Consulting Group. https://vidmaconsulting.com/importance-of-trademark-vis-a-vis-artistic-work-in-the-media-and-entertainment-industry/
- Indian Brand Equity Foundation. (2021, May 7). Media and Entertainment Industry. https://www.ibef.org/industry/media-entertainment-india.aspx
- Jha, Mamta. (2019, December 19). Protecting intellectual property in media and broadcasting. World Trademark Review. https://www.worldtrademarkreview.com/protecting-intellectual-property-media-and-broadcasting
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