This article is written by Shruti Yadav, currently pursuing an integrated BA-LL.B degree from Jagran Lakecity, Bhopal. This article talks about intellectual property in regards to the entertainment industry.
Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. They are also a well-known type of legal intellectual property protection for content creation. These rights, however, have contributed enormously to the world, in particular economically. The Indian industries of media and broadcasting have tremendously developed in the past three decades. In the internet period, access to the latest technology and information has increased exponentially, eliciting the public’s creativity and producing and sharing a large number of original works. Even issues related to the creativity and originality of content generated by artificial intelligence are being resolved. This has brought many difficulties in the protection of intellectual property rights to the broadcasting and media industries. The legislative and judicial departments encourage creativity, the free and fair dissemination of content while constantly striving to prevent abuse and exploitation of original creations. Therefore, intellectual property rights have become more prominent in the media and entertainment fields. Several pressing issues related to this sector have come forth in India.
What are intellectual property rights?
Intellectual property rights (IPR) are the legal rights that grant creators protection for their original works, designs, or the appearance of products, artistic works, scientific advancements, etc. On the topic of the entertainment industry, intellectual property rights, particularly copyrights and trademarks, come into play. Copyrights can be filed for lyrics, music, dialogues, and screenplay. Celebrities have been making use of the protections that trademark law offers for many decades now to make a profit for themselves. Although intellectual property rights protection may appear to provide a minimal level of protection, when used intelligently, it can produce maximum advantages and value of creation, allowing for the development, protection, and monetisation of world-changing technology.
Types of intellectual property rights
Different types of intellectual property rights are:
A patent is used to stop an invention from being further produced, sold, or recreated or used by another party without consent. Patents are the most prevalent type of intellectual property rights. A patent proprietor has every right to capitalise on his/her/their patent, including buying and selling the patent or conferring a license of the invention to any third party under mutually acceptable terms.
Different categories under the ambit of patents are:
- Utility: A utility patent preserves the creation of a new or improved product, process, the composition of matter, or machine that is beneficial
- Design: A design patent protects the ornamental design of a valuable item.
- Plant: A plant patent protects new kinds of plants produced by cuttings or other nonsexual means.
Copyright is not used to protect ideas. Instead, it only includes “tangible” creations and original work, for instance, art, music, architectural drawings, or even software codes. The copyright proprietor has the exclusive right to sell, publish, and reproduce any literary, musical, dramatic, artistic, or architectural work designed by the original creator.
Trademarks are the secrets of a business. They are exclusive systems, formulas, strategies, or other confidential information and are not intended for unapproved commercial use by others. This is a necessary kind of protection that can aid businesses to obtain a competitive edge. The term trademark attributes to a recognisable insignia, phrase, word, or symbol that signifies a specific product and legally distinguishes it from all other products of its variety. A trademark solely identifies a product as belonging to a particular company and acknowledges the company’s possession of the brand.
Role of intellectual property rights
Talking about the entertainment industries, intellectual property rights, especially copyrights and trademarks, come into action. However, it is essential to recognise where intellectual property rights in the entertainment industry come into action and where they do not.
While naming a film
A filmmaker has the right to register the film’s title before the beginning of the shooting to restrict others from using the same title. However, copyright and trademark laws are not relevant for naming a film. The reason is that copyright is intended to incentivise creativity since much work is required in the creative process. A work necessitates having a certain measure of “authorship”, like song lyrics, to solicit copyright protection. The writing is of the “minimum amount” in movie titles, so it does not warrant copyrights or trademarks. This is why numerous films have the same name.
Screenplay and writing
The film’s screenplay is one of the most striking things that are within the domain of intellectual property rights in the entertainment industry. The writing, screenplay, full script, that contains acting instructions and scene directions, locations, cinematography, and other film production methods can all be used to estimate the story of the film and how it stands out amongst others. Filmmakers can file for copyrights for the film’s screenplay and script under copyright rules. This gives them sole ownership of their work. Ideally, the producer will come upon a ready-to-film script. The screenplay, on the other hand, usually necessitates the expertise of a professional screenwriter. A screenplay might be original work or an adaptation of previously published material, such as a novel, a play, or a film. The script itself has always been deemed to be an original creation to which IP rights are connected. The producer typically utilises a scriptwriter to write a short narrative canvas for the film and a first draft; the contract may also specify any other drafts, re-writes, or polishes foreseen for accepted payments. The legal status of the writer’s contract varies according to the prevailing copyright and related rights legislation. Suppose the movie is an adaptation of existing work. In that case, the producer will arrange an option agreement to obtain the right to use this material before going forth. An option agreement affirms that the proprietor of the underlying work – a script, book, article or short story – grants to the producer, for a detailed period, the right to create a film.
Suppose the film is produced and the option is applied. In that situation, the copyright owner is compensated for the continuous right to utilise his or her work in the film. While negotiating the conditions for securing rights to the screenplay, TV rights, and the right to release in ancillary markets such as home video and new media, a rights acquisition agreement is also usually negotiated. For example, experienced producers will seek to obtain several rights to optimise profitability and produce sequels freely. On the other hand, the original copyright owner will try to retain certain rights, such as publishing rights, stage rights, broadcast rights, and character rights (if you want to write a sequel). A detailed rights purchase agreement can help avoid unforeseen legal problems down the road.
Music, lyrics and background score
The music, lyrics, and background music form the core of the film and therefore belong to the entertainment industry’s intellectual property. Early practices allowed filmmakers to pay musicians and lyricists and protect the copyrights of their work under their production banner. However, since Javed Akhtar v. Producers Guild in (2010), writers and musicians can claim copyright for their creations and continue to receive royalties instead of transferring the copyright to the film’s producer on a one-time payment basis.
The long list of credits at the end of the film gives an idea of the army involved in the production. This is a complex collaborative effort that generates many different levels of rights related to different production elements (such as script, music, director, and performance). The rights associated with these must be licensed, transferred, and registered to allow the producer, the person responsible for turning the idea into a marketable concept, for declaring ownership of the film, raising funds necessary to produce the film and distribution rights for a license so that they can reach the broadest possible audience.
Producers are responsible for getting a film project off the ground. While they may not be the author of the original conception for the screenplay, a film project is unlikely to see the light of day without their vision and passion. Throughout the film-making process, producers negotiate various contracts that define how the IP rights arising from the input of the numerous creative contributors will be applied and compensated. These agreements are underpinned by the Copyright law and the Contract Act, 1872 and are known as the chain of title documentation.
Filmmakers are obligated to pay dues for using songs by other lyricists or musicians in their films. In the case of “remixed songs” or “movie remakes”, both the music composer and the film producer must pay the original creator expenses separately. Otherwise, they may be sued for copyright infringement. For example, in October 2019, Dr. Zeus charged the creator of the Bollywood movie “Bala” for copyright infringement. The British artist claimed that his hit song “Don’t Be Shy” was recorded in the film without his approval and further accused the Bala producers of plagiarizing his work. The producers of Bala subsequently issued an official statement stating that they had completed the due process to obtain the copyright from Carmen Entertainment, a company that owns the global copyright to the relevant song. The film production company Maddock Films further claimed that Karman Entertainment granted them an official license to reproduce the song. This allows filmmakers to include the song in their movies without paying extra.
However, suppose the filmmakers did not seek copyright to recreate or even use the notes/melody in their films. In that case, the filmmakers of Bala could be sued for copyright infringement. The Indian Censorship Council and other film institutions enact laws to assist film artists in their literary creations. Such laws prohibit filmmakers and music directors from “borrowing” or “imitating” the original and creative works. These laws ensure that other filmmakers use the works of original creators for both credit and monetary gain, thus protecting their rights.
Trademarks and merchandising
Trademarks also feature prominently in movies. Like other companies, movie studios use trademarks to create unique identities and stand out in a crowded marketplace, from the great appeal of 20th Century Fox and the more exclusive focus of its sister company Fox Searchlight to the icons of animation Pixar and Disney family. Movie titles can also be protected as trademarks. Registering these film elements as trademarks can open the door to lucrative licensing and sales agreements, helping pay for film production and promotion costs. Walt Disney demonstrated the potential to generate ancillary income (that is, beyond theatrical distribution) of films and their characters. Mickey Mouse is the world’s best-known cartoon character and was registered as a trademark as early as 1928. By 2010, global retail sales of the iconic Disney mascot had reached $ 9 billion and continued to show strong growth potential. Star Wars is another notable example of film marketing. Star Wars was first released in 1977, followed by five other blockbusters, creating a lucrative multi-million dollar Star Wars collection (from action figures to lightsabers, keychains and books). Star Wars has become an enduring cult phenomenon. This trend will continue when the filming of Star Wars VII begins later this year.
A large amount of technical equipment is used to make movies including the camera, as well as lighting, editing, sound, and special effects equipment. Innovation is the hallmark of this industry. Throughout its history, intelligent minds have been looking for new and improved ways to push the limits of possibility. Many of these technological advancements are protected by patents. Since Thomas Edison and Lumiere brothers brought movies to the public, the industry has undergone tremendous technological changes. The golden age of silent movies gave way to sound movies, which gave new importance to dialogue and performance, which in turn gave birth to new types of movies. The invention of the Technicolor (invented in 1916 and after decades of improvement) gave the film a more realistic feel. It used increasingly innovative and high-performance sound systems, Warner Bros. Vitaphone (used to produce the first feature film sound, Jazz Singer 1927) to Dolby Surround (first introduced in 1982) enhanced the movie experience.
Piracy issues in the media and entertainment industry
Piracy is a threat to artists’ creative freedom. Piracy refers to the unauthorized copying and distribution of all or most of the copyrighted works. In movie productions, piracy occurs through the unauthorized copying of movies in various formats. The recent shift in the entertainment industry has shifted to digital platforms, where all creative content is available online. With new technologies such as virtual reality, you can create 360-degree immersive environments without taking risks.
When it comes to the media and entertainment industry, piracy has reached its peak. Whenever a movie is released, a copy of the movie will be uploaded to many pirated websites within a few hours. This causes considerable losses to the producers of this film. Because there are pirated versions on these websites, people choose to watch them instead of going to the theatre. Low box office income has brought economic losses to filmmakers. Some of these sites are Tamil rock musicians, your seeds, ROMCOM, F movies, etc.
The paid subscription apps like Netflix, Hot Star, Amazon Prime, ET Times, and The Indian have paid a heavy price to become media partners for the film. These hacked sites release such movies or videos before the media partners. As a result, these applications have fewer subscribers, leading to the loss of application owners.
Therefore, piracy has become a vital issue, as the cancer of the media and entertainment industry. Sometimes, even after getting a protected job, piracy can still occur, making us shake our heads because people even steal someone’s hard work in order to make money. Just as chemotherapy cures cancer, stricter laws are required to curb this piracy and protect people’s hard work. The potential problem is that it is difficult for copyright owners to track infringers due to the ubiquitous digital technology.
Ways and means in the legal sphere to protect Intellectual Property Rights
Unsurprisingly, copyright and trademarks play a central role in protecting the industry’s intellectual property rights. India had copyright and trademark regulations even before independence, and the regulations have also been revised as the times change. Where legislation is not clear, Indian courts have filled the gaps time and time again. Compared with patents, the protection and enforcement of copyright and trademark rights are robust.
De minimis infringement
The de minimis principle has been implemented by the Delhi High Court as a defence against copyright infringement. The doctrine states that “the law does not care about trivial matters.” It has long been regarded as a common-law defence and justification for criminal acts. Considering that a large number of small-scale copyright infringement incidents often occur inadvertently, the “minimal” criterion occupies an important position in copyright law.
The Delhi High Court applied this concept while deciding a copyright infringement lawsuit in Independent News of India v. Yashraj Films Pvt Ltd (2012). Here, a singer appeared on a chat TV show. In an interview with the singer, a part of a popular song was played. The alleged infringement is considered trivial and therefore cannot be prosecuted. In the process, the Court laid down five considerations for such cases:
- The size and type of harm – in the case at hand, it was found that only five words were used. The judges considered this to be too trivial and insignificant to warrant an actionable claim;
- The cost of adjudication – this relates to the amount that would be charged by the copyright owner when compared to the cost of adjudication;
- The purpose of the violated legal obligation;
- The effects on legal rights of third parties; and
- The intent of the alleged wrongdoer.
Section 52 of the Copyright Act 1957 sets out the exceptions deemed not to amount to copyright infringement. The applicability of de minimis as a defence has been recognised in India beyond the scope of Section 52 of the Act. Despite the lack of apparent textual legislative support, considering the ultimate motives of the alleged offender, the Court has freely adapted the minimum defence. However, there may be some textual support. Copyright infringement is established when the alleged infringer copies the work “as is” or copies most of the content of the work. So logically, if the court concludes that the number of copies in a particular case is minimal, the inference may be that the number of copies involved is not significant. Of course, in this case, it is necessary to ensure that the first of the five principles above (i.e. the size and type of lesion) is evaluated from a quantitative perspective and not from a qualitative purpose.
Governing laws and rights
India is a common law country and a signatory to various international IP treaties. The essential ordinances which protect intellectual property in the Indian media and broadcasting industry are:
- The Copyright Act 1957; and
- The Trademarks Act 1999.
These acts are exhaustive in terms of distinguishing:
- Original content;
- Owners’ rights;
- Remedies for infringement;
- Fair use and defences;
- Broadcasting, moral and performance rights; and
- Border measures against the import of infringing copies and material.
In particular, copyright protection is extraterritorial because India is a signatory to the Berne Convention and the Trade-Related Intellectual Property Agreement. Indian law does not require copyright registration to seek protection. In addition, the courts protect customary rights, such as personality rights and marketing rights. Today’s unique challenges facing the media and broadcasting industry can be measured by the various issues involved in judicial review and interpretation.
Broadcasting rights, internet streaming and statutory licensing
Section 37 of the Copyright Law grants broadcasting organizations a special right, called “reproduction right by broadcasting”, independent of the copyright of the creator or owner of the broadcast work. The duration of the rights is 25 years. In the 1997 Asia Industrial Technologies v Ambience Space Sellers case, the Mumbai High Court held that as long as broadcasting organisations can watch in India, broadcasting organizations can enjoy this right even if they are outside India.
The right entitles a broadcaster to prevent others from engaging in the following concerning the broadcast of a programme or a substantial part thereof:
- disseminating a broadcast without authorisation in exchange for payment; and
- making unauthorised sound or visual recordings of the broadcast or reproducing, selling or renting such recordings.
The Copyright Act does not define a ‘broadcasting organisation’, although ‘broadcasting’ is defined as ‘communication to the public’:
- by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
- by wire.
Section 31D of the Copyright Law allows broadcasters to apply to the Intellectual Property Appeal Board (a court specializing in intellectual property issues) to set statutory royalties for literary and musical works and sound recordings. The organisation must pay royalties to the copyright owner at the rate set by the board of directors. This clause uses the terms “radio transmission” and “television transmission”. In 2013, Section 31D was introduced into the Regulation. By then, the legislature had understood that the internet was a medium for sharing content. The Court had to work recently to resolve the question of whether streaming services are eligible to become broadcasters. The Mumbai High Court responded to this question in the Tips v Wynk case in 2019 based on the legal licensing system stipulated by the law. The Court held that online streaming services could not benefit from a legal licensing system because Section 31D only applies to radio and television stations. The Court interpreted the exclusion of any reference to the internet in the clause as a conscious choice to restrict the legal licensing system to radio and television stations.
In the case of live broadcasting
The broadcasting and media industries, especially sports and live competitions, have always focused on contemporary or simultaneous reports of such events broadcasted by authorized official broadcasters that invest in broadcasting rights through web pages and mobile applications.
In Star India v. Piyush Agarwal (2013), a Delhi High Court judge approved a limited injunction restricting the defendant from disseminating live game information in the form of ball-by-ball score updates or minute-by-minute and game alerts without requiring a permission certificate. Member of the Cricket Control Council of India (BCCI) (the body that manages, organizes, and promotes Indian cricket matches). The plaintiff has obtained BCCI’s television broadcasting license and is trying to prevent the defendant from reporting on its mobile app for modern text-based cricket matches. The Court announced a limited injunction that allowed the defendants to delay their appearance in court by 15 minutes after the actual broadcast so that the official broadcasters could benefit from their investment. On appeal, the Appeals Chamber of the Delhi High Court overturned this decision, holding that the information and updates are basic facts and are not protected by copyright law. Therefore, posting or sharing competitive information or facts, whether for commercial or non-commercial use, does not constitute copyright infringement, unfair competition, or unfair enrichment. The Supreme Court reviewed the sentence. Although the Supreme Court reinstated the temporary arrangement made by the sole judge, it has not yet made a final decision on this issue.
Ways to combat online piracy
John Doe orders have always proven to be an effective way for rights holders to protect their physical and digital world rights. The first order passed by John Doe in India-Taj TV v. Rajan Mandal (2002)-involved the infringement of the rights of broadcast reproduction of sports television channels. The High Court of Delhi appointed a Court Commissioner to confiscate equipment at an unnamed television station premises. A cable TV operator retransmitted the 2002 World Cup without reaching an agreement with the plaintiff (official broadcasting company). Over the years, many media companies and broadcasters have successfully used the John Doe model to combat mass piracy.
However, John Doe’s orders also led to abuses in which content and legal entities were blocked under the guise of such orders. This resulted in the Bombay High Court in Eros International Media v BSNL (2016) prescribing a three-step verification test for blocking orders to be passed:
- written verification and assessment by an external agency of infringing uniform resource locators (URLs);
- second-level verification by the complainant and its advocates; and
- an affidavit on oath.
The Court also stipulated that all internet service providers must implement a protected page providing court and order details so that any legal or innocent party can seek help in court. John Doe orders are fading in today’s digital age (piracy is instantaneous, and piracy cannot be traced), so a new solution is needed. In this regard, the 2019 Delhi High Court’s decision on the fight against piracy, through a dynamic court order, provided significant relief to copyright owners in the media and broadcasting industries to combat Hydra Headed fraudulent websites. To identify and prevent such sites from hosting and providing pirated content, the Court issued a ruling in UTV v 1337X (2019). It said to design effective mechanisms by issuing “dynamic bans” to harm identified websites and mirrored websites in the future. The Court stipulated the following factors to classify a website as a “fraudulent website”: The primary purpose of the website
- is to facilitate infringement;
- the traceability of the owner;
- the website operator does not respond to the removal notice;
- the website contains infringement promotion A description of the copyright and
traffic or frequency of visits to the site.
The Court’s criteria for identifying rogue websites were necessary to avoid the dynamic injunction from being used against genuine online platforms that fit under the category of intermediaries and are granted statutory protection under the Information Technology Act 2000.
- Raise awareness about the economic, social and cultural benefits of copyright protection
- Raise awareness about these piracy technologies
- Provide appropriate amendments in accordance with the Cinema Law and related legislation. To strengthen the provisions of the law, established an intellectual property management and promotion team.
Other initiatives taken by the government to curb piracy are
- To combat piracy, the Maharashtra Cyber Cell has worked with several production firms.
- In 2019, numerous E-Commerce Policies, which includes a unique section on Anti-Piracy Measures, was released.
- The Indian government’s Ministry of Home Affairs has created a nationwide cybercrime reporting portal, where citizens may file complaints about cybercrime. There are two types of complaints: the first being women and children’s complaints, and other cyber concerns. The second category includes concerns about online piracy.
The media and broadcasting industry is proliferating and traversing its traditional standards towards new pastures avenues. Of course, new challenges are emerging with such growth. It is encouraging that Indian courts resolve these issues in accordance with global jurisprudence, taking into account the balance that must be maintained between freedom of expression and the rights of the content owners. The problems covered in this article are not the only issues. Many others are under discussion both inside and outside the Indian courts. At the very least, it is clear that Indian courts face cutting-edge legal issues when it comes to these areas. Certainly, the Indian judiciary appears to be up to the challenge of addressing these issues. The media industry itself is ready for this battle. The industry may be able to solve more problems in the future. Given the experience so far, areas such as contract management, arbitration, and technical measures require special attention.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: