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Friday, March 6, 2020

Cinema: Copyright Holders, Infringement, and Tests

It is undeniable that a film is the combined effort of many, many people, and also a creative reservoir tanked together. Many people with many roles and aspects are integral for an idea to materialize on the big screen. 

Section 2(d) of the Copyrights Act, 1957, defines author:
"author" means:
(1) In relation to a literary or dramatic work, the author of the work;
(2) In relation to a music work, the composer;
(3) In relation to artistic work other than a photograph, the artist;
(4) In relation to photograph, the person taking the photograph, the artist;
(5) In relation to a cinematograph film or sound recording, the producer; and
(6) In relation to any literary, dramatic, musical or artistic work which is computer- generated, the
person who causes the work to be created.
According to Section 17 of the Copyrights Act, 1957 the first owner of copyright is defined as under: 
Subject to the provisions of this Act, the author of a work shall be the owner of copyright therein. Section 17 statutorily recognizes the author of the work to be the first owner of the copyright. The author is defined under the Act for various works, which come under the law of copyright. 
So, it is fairly clear from the provisions that a producer is the copyright holder of a cinema. But, how can infringement of a copyright be contested or proved? Is it necessary to have scene-to-scene copying? Or, is substantial copying sufficient to prove infringement? If yes, what exactly is "substantial"? 

In the case of R G. Anand v. M/s. Delux Films, the following was held by the Supreme Court that lays down authoritative clarity on the test/necessary factors while considering an infringement. 

Summing up what the Supreme Court held in the case- the details necessary to successfully prove the infringement of the copyright of a film are as follows:
- same form, manner, arrangement and expression of the same idea
- substantial copying, where substantial means "literal imitation of the copyrighted work with some variations here and there"
- viewer, after having read or seen both the works, is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of the original
- there should not be broad and substantial dissimilarities between the two works apart from the
- clear and cogent evidence
The SC also held in R.G. Anand case- 
"The effect of the dissimilarities pointed out above clearly go to show that they far outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play, is hardly of any significance because the name of a particular person cannot be the subject matter of copyright because these are common names." 
In the above case, the Court found that there was no copyright infringement. So, to conclude, a mere claim is not entertained as a copyright infringement. But, however, a film's portrayal and execution of an idea is protected by copyrights. 

Copyrights, and IPR in general, is a very interesting field. Soon, in a subsequent post, we can explore why revisiting old notions about intellectual property is necessary in the present era of memes, remixes and other revision-creativity that is equally creative, and needs to have an effective protective mechanism.

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