Introduction:
The excessive flow of creative energies aiming towards “Creative India, Innovative India” has indeed, transformed India into the 5th largest media and entertainment market in the world. The 1911 Copyright Act repealed earlier laws and statutes. Following which in 1914, the Act carried out certain provisional modifications until its replacement by the Copyright Act, 1957. In Holy Faith International v. Dr. Shiv K. Kumar[1] the Court observed that primary function of a copyright law is to protect the fruit of a man’s original work, labor, skill, or test. The continuing importance for the need of laws protecting literary, dramatic, musical, artistic works including cinematographic films were realized. The first ever 1957 Amendment stated that cinematographic films shall have a separate copyright apart from its various components namely, story, music, etc. The 1984 Amendment (Act 65 of 1984) stressed onto the piracy of cinematographic films, absence of which caused immense losses to producers and other owners of copyright. The 1994 Amendment carried out pursuant to the Uruguay Round, in conformity to the TRIPS Agreement, recognized Performer’s Rights.
Copyright law governing entertainment industry, deals with the following:-
- Subsistence of copyright in cinematographic film works & sound recordings protecting the film as well as the soundtrack married to film proper (visual recording accompanying the soundtrack/ recording therein);
- ‘Test of originality’ & Scene à Faire concept under the Copyright law protecting expression of ideas in a particular form, rather than mere ideas, plots and themes;
- Global ‘Piracy’ problem, having rapid advances, which is a threat to creative liberty of copyright owner. Creating issues, problems and losses incurred to creator of these cinematographic films & sound recordings;
- Infringement of copyright covered under Section 51 of the Act; and
- Constitutional validity of Section 64 of the Act, dealing with practicalities of jurisdiction of Courts in copyright infringement cases.
Test of Originality:
‘Work’ defined under Section 2(y) of the Copyright Act, 1957 (‘the Act’) includes work of original ideas & derivative works, however, not copied work. Section 13 of the Act protects copyright in a ‘cinematographic film’ as ‘work’ and covers idea as an expression dichotomy, liable to be protection under the Act.
The Concept of Originality was first recognized in landmark judgment R.G. Anand v. M/s Deluxe Films and Ors.[2] (‘R.G. Anand case’) wherein, Apex Court holds that there can be no copyright protection for “ideas, plots, legendary facts and themes”. It is only the expression of idea that is granted protection. A comparison of original and subsequent work was attempted considering the arrangement of facts, the manner of writing, whether if it is a copy from scene to scene or if state of affair is extremely similar with miniscule changes. The Apex Court believes that new work must “infuse a new light to the idea” to the prior work that was used as reference & there must be difference in style of writing and arrangements of situations.
R.G. Anand case lays down Observer’s test which states that there should be substantial resemblance between the original work and alleged copy, in terms of scenes, incidents and treatment, and the similarity must be such that reader, spectator or viewer after having read or seen both the works is clearly of opinion and gets an unmistakable impression that subsequent work appears to be a copy of the original. The Court also observed that where the theme is same but is presented and treated differently than the subsequent work and becomes a completely new work. One needs to also look at similarities and dissimilarities between the two works to see if the dissimilarities negate intention to copy the original and if the similarities are material or merely coincidental and incidental. Furthermore, to establish that there was copyright infringement it must be shown that it is not merely a theme which has been copied but whole storyline has been copied.
The decision in R.G. Anand was reiterated in case of Yash Raj Films Pvt. Ltd. v. Sri Sai Ganesh Productions & Ors.[3] where defendant alleged to have made a copy of Bollywood movie, Band Baaja Baarat, by dubbing and releasing same as a Telugu movie, Jabardasht. It was alleged that there were substantial and material similarities in terms of theme, concept, plot, character, sketches, story, script etc. Relying on test laid down in R.G. Anand case, the Delhi High Court held once again that one needs to look into “the substance, the foundation, the kernel”9 of the two works and determine whether an average consumer would be confused while determining whether a substantial part has been copied or not. The test of originality as was provided under R.G. Anand v. M/s Deluxe Films and Ors. wherein the defendant contended that ‘cinematograph film’ was to be treated differently under Section 13(3) of the Act and all underlying aspects of the work were protected independently and not as a whole.
Unlike other original works, the current law does not stipulate that ‘cinematographic films’ must be original to qualify for copyright protection. This is mainly to achieve the object of not curbing creativity of any person who would be expressing same subject matter to his unique creativity and expression. Unlike the aforesaid, according to Section 13(3)(a) of the Act, states that copyright shall not subsist in a cinematographic film if substantial part of the film is a copy and a deliberate infringement in any other work. The only reason why ideas are not protected under the present copyright statute in India is to encourage creativity of people, which otherwise would be lost, and no author would be ever able to write anything at all without infringing copyright.
In Rediff.com India Ltd. v. E-Eighteen.com Ltd., is is held by the Delhi High Court that Copyright Act is not concerned with the original idea, but with the expression of thought as is held in Time Warner Entertainment Company v. RPG Netcom[4], stating that there could be no copyright in an idea, subject-matter, themes, plots, etc. and violation of copyright in such cases was confined to the form, manner and expression of the idea by author thereof as object of copyright was not to create any legal or intellectual property rights in the idea but final object was as a result of effort made to give a ‘physical’ shape to the idea thereof.[5]
Further, issue of originality with respect to cinematograph films raised in the case of MRF Limited v. Metro Tyres Limited, wherein the issue before Delhi High Court is whether copyright infringement is only limited to making a physical copy of a film or does it extend to replicating the substantial, essential and fundamental aspects of a film. It is questionable because the Act does not make an explicit mention of originality as a pre-requisite for granting protection of copyright for a ‘cinematograph film’. Section 13(1)(a) of the Act explicitly mentions the requirement of originality for protection of ‘artistic works’ which is not the case with ‘cinematograph films’ under Section 13(1)(b).
Conclusion:
Unlike literary, dramatic, musical and artistic work, which requires originality, the Copyright Act does not stipulate that cinematographic films must be ‘Original’ to qualify for copyright protection but as per Section 13(3)(a) of the Copyright Act, 1957, no copyright shall subsist if substantial part of the film is an infringement of the copyright in any other work. The idea/expression dichotomy explained by the Calcutta High Court in Barbara Tylor Bradford v. Sahara Media Entertainment Ltd. wherein the Court pointed out that the law protected originality of expression and not idea, balancing of two conflicting policies, wherein the first being that law must protect the originality of work and secondly that such protection should not curb future creativity. In Zee Telefilms Ltd. v. Sundail Communications Pvt. Ltd.[6]the Bombay High Court observed that law does not recognize property rights in abstract ideas, expect when embodied in tangible form.
[1] CS (COMM) 1329/2016, Delhi High Court, 8th July 2019.
[2] A.I.R. 1978 SC 1613.
[3] 2004 (28) PTC 474 (CAL) (DB)
[4] Time Warner Entertainment Company v. RPG Netcom, 2007 (34) PTC 668 (Del) (DB-Division Bench)
[5] 2003 (27) PTC 457 (BOM) (DB)
[6] 2013 (55) PTC 296 (Del)
