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In the words of J. Krishna Iyer in IPRS v. EIM Pictures Assn., 1977(2) SCC 820:
‘A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor. Cinema is more than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but S. 13(4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any 'work' notwithstanding its confluence in the film.’
I. Meaning of a ‘cinematograph film’ under the Indian Copyright Act, 1957
‘Cinematographic film’ is defined under S. 2(f) of the Act as ‘any work of visual recording and includes a sound recording accompanying such visual recoding and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography including video films.’
‘Visual recording’ is defined under S. 2(xxa) of the Act as ‘the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.’
‘Work’ as defined under S. 2(y) of the Act includes a cinematograph film.
Thus, a Cinematographic film is a recording…. of moving images or of the representations thereof and a copyright subsists in the cinematographic film under the Act.
II. A ‘cinematograph film’ comprises of various ‘independent’ copyrights, as recognised under the Indian Copyright Act, 1957
Since a film comprises of various underlying works, each of those works are separately protected. However, a film enjoys protection independently of its parts, but the said protection is narrow. The same is evident from the treatment of a film under the Indian Copyright Act.
1. Under S. 13 (1)of the Act, which provides for works in which copyright subsists, the word
‘original’ is not used with respect to cinematograph film as opposed to other works, as the
threshold of copyright in cinematograph film is low and the protection is narrow.
2. As per S. 13 (3) of the Act, Copyright will not subsist in a cinematograph film if a substantial part
of the film is an ‘infringement’ of any other work which means substantiality has to be read with
infringement which is determined from a conjoint reading of S. 51, 14 and 2(m). That underlying
works have their own copyrights independent of the cinematograph film and that’s why a
cinematograph film has to be compared to all the works.
3. Similarly, S. 13 (4) of the Act states that ‘The copyright in a cinematograph film or a [sound
recording] shall not affect the separate copyright in any work in respect of which or a
substantial part of which, the film, or as the case may be, the [sound recording] is made.’
Thus, a cinematograph film is treated differently as evident from S. 13(3) and S. 13(4) of the Act as all underlying works which contribute to make a film, are independently protected and there are different contributors. Further, even if all the rights may vest in one person/entity, the works do exist independently.
The same position has been upheld by the Single Judge of the Bombay High Court in Star India Private Limited v. Leo Burnett (India) Private Limited, 2003 (27) PTC 81 (Bom.)and Zee Entertainment Enterprises Limited v. Gajendra Singh & Ors,. 2008 (36) PTC 53 (Bom) as well as the Division Bench of Chennai High Court in Thiagarajan Kumararaja v. Capital Film Works (India) Pvt. Ltd. and Ors,. Original Side Appeal
No. 22 of 2017.
The aforesaid position is further clarified from the following definitions:
1. ‘Author’ under S. 2(d) of the Act is defined as follows:
i. ‘in relation to a literary or dramatic work, the author of the work;
ii. in relation to a musical work, the composer;
iii. in relation to an artistic work other than a photograph, the artist;
iv. in relation to a photograph, the person taking the photograph;
v. in relation to a cinematograph film or sound recording, the producer
vi. in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;’
2. ‘Composer’ under S. 2(ffa) of the Act is defined as ‘in relation to a musical work, means the
person who composes the music regardless of whether he records it in any form of graphical
3. ‘Producer’ under S. 2(uu) of the Act is defined as ‘in relation to a cinematograph film or sound
recording, means a person who takes the initiative and responsibility for making the work’
In view of the above, in case of literary, dramatic, musical work and artistic work – it is the author/composer/artist who is the owner of copyright whereas in case of cinematograph film/sound recording, it is the producer and a producer is a person who takes the initiative and responsibility for making the work. Thus, the contribution of a producer to a film is different than the other authors and all works exist independently.
III. Copyright Infringement in a ‘cinematograph film’ under the Indian Copyright Act
As per S. 51 of the Copyright Act, 1957, copyright in a work shall be deemed to be infringed when any person, without license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.
Under S. 14 (d) of the Indian Copyright Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:…in the case of a cinematograph film:
i. To make a copy of the film, including:
a) a photograph of any image forming part thereof: or
b) storing of it in any medium by electronic or other means;
ii. to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;
iii. To communicate the film to the public.
The expression ‘to make a copy of the film’ would mean to make a physical copy of the film itself and not another film which merely resembles the film.
The copying must be of the same signals, i.e. same images and sound recordings and not any other version that has been independently created for reshooting the subject of the copyrighted film. (Star India Private Limited v. Leo Burnett (India) Pvt. Ltd., 2003 (27) PTC 81 (Bom)).
IV. International position and Berne Convention.
The test of infringement of the copyright in a ‘cinematographic film’ remains the same across various jurisdictions like UK and Australia, i.e. requirement of the copy/replication of the original cinematographic film. For instance, Under the Australian Act, ‘Copyright in relation to a cinematographic film is the exclusive right to do any or all of the following:.
To make a copy of the film (Section 86) and ‘copy’ is defined as ‘in relation to a cinematograph film, means any article or thing in which the visual images or sounds embodying the film are embodied.’(Section 10) and Zeccola v. Universal City (Australia) supports ‘exact/facsimile copy’.
Article 14(2) of the Berne Covention states that “...the adaptation into any other artistic form of a cinematographic production derived from literary or artistic works shall, without prejudice to the authorization of the author of the cinematographic production, remain subject to the authorization of the authors of the original works”.
Article 14(2) reflects the co-existence of copyright in cinematographic work and the Literary/Artistic work from which the said cinematographic work is adapted. It means that the fact that its author has agreed to its adaptation to film does not allow all and sundry to steal his ideas, his plot and his characters even though the change to film has resulted in a work of a different kind.
Thus, in view of the above, in order to establish copyright infringement in a ‘cinematograph film’, it is essential to show that a physical copy of the film has been made and not another film which merely resembles the film.
The copying must be of the same signals, i.e. same images and not any other version that has been independently created for reshooting the subject of the copyrighted film. However, another film which may not infringe a ‘cinematograph film’, may still infringe the copyright in the underlying works i.e. literary, dramatic, musical and artistic works that have contributed towards making the copyrighted cinematograph film. It is thus advisable that all the underlying works should be protected and fixed and the scope, rights and ownership in the underlying works are defined and identified.
Anand and Anand
Prachi Agarwal BSc. LL.B, works in the litigation department of Anand and Anand. She completed her studies at National Law University, India in 2007 and at George Washington University, US in 2008. Ms Agarwal is actively involved in intellectual property litigation practice including patents, trademark, copyright and designs and also provides clients with legal advice in intellectual property law matters. She previously worked at IP law firm Ditthavong, Mori and Steiner, Virginia, US and is licensed to practice in the Commonwealth of Virginia, USA and India.
Managing partner Pravin Anand focuses on intellectual property, litigation and dispute resolution. He completed his law studies in New Delhi in 1979 and has since been practicing as an intellectual property lawyer. Mr Anand has been a counsel in several landmark intellectual property cases involving the first Anton Piller Order (HMV cases); the first Mareva Injunction Order (Philips case); the first Norwich Pharmacal Order (Hollywood Cigarettes case); Moral rights of Artists (Amarnath Sehgal case); Recognition for pro bono work for rural innovators at grass root level (National Innovation Foundation Award - Govt. of India); First order under the Hague Convention (Astra Zeneca case) and several significant cases for pharmaceutical clients such as Novartis, Pfizer and Roche. He is a co-author of two volumes of Halsbury's Laws of India on Intellectual Property and serves on the editorial board of several international intellectual property journals. Mr Anand is also author of the India chapter in Copyright Throughout the World - WEST (Thomson Reuters).
A film comprises various works, various contributors and various copyrights, which exist independently, as depicted below. This is what makes a cinematograph film unique and different to the other works, which are protected under Copyright Law. These are literary, dramatic, musical and artistic work. For this reason, films are given a narrow protection under the Copyright Law.