BOLLYWOOD AND COPYRIGHT INFRINGEMENT: NEED OF STRONG IP ENFORCEMENT MECHANISM
Updated: Mar 20, 2021
Author: Kajal Chandra, IV Year of BBA.,LL.B(specialization in corporate laws), from School of Law,University of Petroleum and Energy Studies,Dehradun.
The Media and Entertainment Industry works on creativity and offers new movies, films to the audience. However here the copyright protection comes into the picture to protect the content and the sole creativity from being copied. In the case of literary, musical or films, it is the copyright law which protects it. Despite the existence of copyright laws in India, copying others work has been prevalent and especially in the Bollywood Industry.
The remake of popular films and songs is being seen as a recent trend in the film industry, and this has led to the upsurge of incidents of copyright infringement in India. With a reading of Section 14 of the Copyright Act, 1957, it becomes clear that infringement of a film means to make a carbon copy of the original film and also only films which are original can be copyrighted.
The term “copy “not being defined in the act has led to many interpretations by the courts in the past years. In the case of R.G Anand v. M/s Delux Films, the Apex court laid down guiding principles for determination of what constituted copyright infringements in an artistic work. The ultimate test as to whether a work has been copied depends on the viewer's opinion after watching both the works. This guiding principle has its applications to cinematographic films till today.
COPYRIGHT INFRINGEMENT IN CINEMATOGRAPHIC FILM
According to the Copyright Act, 1957, a cinematograph film can be defined as any work of visual recording on a medium produced by a process from which a moving image may be produced by any means. This also includes sound recording With regards to copyright infringement for a film, there have been diverse opinions in cases on the point that whether the infringing copy in the case of cinematographic films is supposed to be an exact copy made while duplication or in another case does it refer to the another work which fundamentally, substantially, materially is similar to the original film.
CONCEPT OF SCENE A FAIRE
The understanding of the doctrine of Scene a Faire also holds great importance to determine whether two cinematographs infringe upon the copyright of each other. This doctrine emerges from the idea-expression merger doctrine stating that certain scenes or elements of a movie cannot be protected by copyright law as they are mandatory for a specific genre. There needs to be a clear distinction between ideas an expression and if the work is based on same situation there will be similarity in the development of the plot. For constituting infringement, it is mandatory to prove that there existed copying of someone else’s work that led to improper appropriation.
RECENT CASE LAWS OF COPYRIGHT INFRINGEMENT
The Dharma Productions release in 2020 “Gunjan Saxena –The Kargil Girl”has been accused of copyright infringement .The Indian Singers Rights Association (ISRA)has filed a suit under the Copyright (Amendment ) Act, 2012 for “royalty “ against performance. The rights of performers in various songs have been allegedly commercially exploited. However, the Delhi High Court has not passed any order against Dharma Productions for the deposit of royalty, observing that the singer’s performance right is a serious triable case, and further, it will be hearing the matter in March, 2021.
The In the judgement of MRF Limited v. Metro Tyres of 2019, a test was laid down by the Delhi High Court for determining whether a remake can be considered an “inspiration” or adaptation or can simply be said to be a copy of an original movie.
Section 13 of the Copyright Act was also discussed in the case which states that for a film to be copyrighted, it is necessary for it to be an original work. Thus it was held that if without the authorization of the owner the copy of the original film is made, it would amount to infringement. While deciding this case, the court also touched the judgement which was made in the case of Shree Venkatesh Films Ltd. V. Vipul Amrutlal Shah & Ors where it was held that in the case of copy it does not only mean a physical copy of the film but also includes another film which fundamentally, substantially and materially is in resemblance to the original film.
Another important factor concluded in this judgement was that for determining whether a film is a copy of another one, one needs to look at “the substance, kernel and foundation of the film". To be more clear “adaptions” or “inspirations” taken from the original film can also be included in the ‘copy’. Recently, the song Masakali 2.0 which was released in 2020 by the company T-series which had originally also produced Masakali for the cinematography of Delhi 6 evolved the question as to what is the extent of the right held by the record label and how does that right vary ? In whole the right of every person who has an association with the song is protected, which includes the composer and the lyricist.
One of the main purposes of Copyright is to give the owner absolute rights over his or her invention and a choice to the artist as to how the music created by him or her is to be reused. Even though the 2012 amendment of the Copyright Act, 1957 has brought some significant changes with reference to protection of music, there still lies a lacuna when it is about the imposition of an enforcement mechanism so that the creator or the individual will have all the recognition and respect. The United States Trade Representative (UTSR) has again identified India in its ‘High Priority Watch List “in 2020 in its Special 301 Reports. The progress on Intellectual property protection and enforcement has been inconsistent in India. Though the enforcement of IP in the online arena has seen an improvement, the lack of concrete benefits for creators and innovators still exist, which has eventually lead to undermine efforts. Weak enforcement of IP by the courts and police and the absence of any centralized Intellectual Property enforcement mechanism along with a failure of coordination of actions on both national and state level obstruct any kind of progress made. Its times now India introduces strict punishments to stop copyright infringement and stop illegal reproduction of music or films in Bollywood so that the creators are not deprived of the incentive that the Copyright laws provide.