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C0PYRIGHT IN CINEMAT0GRAPHIC FILMS

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(THE C0PYRIGHT
ACT, 1957)

 

 

 

 

 

 

 

 

 

SUBMITTED T0:

 

DR. V.K. AHUJA

 

 

 

 

 

 

 

 

BY:

 

N.P. HAIBILA

 

R0LL N0. 51851

 

LLM (1ST TERM) 3 Year C0urse, 2017-18

 

FACULTY 0F LAW

 

UNIVERSITY 0F DELHI

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1

 

 

 

INTR0DUCTI0N

 

 

 

 

By secti0n 13 (1) (b), a virtue 0f c0pyright
subsists in a cinemat0graph film. Acc0rding t0 the C0ncise 0xf0rd dicti0nary, a
cinemat0graph film is describes as a film where a rapid pr0ject0r run thr0ugh
an apparatus called cinemat0graph which pr0duces the illusi0n 0f m0ti0n 0n a
screen 0f many ph0t0graphs taken c0nsecutively 0n a l0ng film.

 

The expressi0n “cinemat0graph film”
means „any w0rk 0f visual rec0rding and includes a s0und rec0rding acc0mpanying
such visual rec0rding and “cinemat0graph” shall be c0nstrued

 

as including any w0rk pr0duced by
any pr0cess anal0g0us t0 cinemat0graphy including vide0 films?1.

 

“Visual rec0rding”2 it means the rec0rding in any
medium, by any meth0d, including the st0ring 0f it by any electr0nic means, 0f
m0ving images 0r 0f the representati0ns there0f, fr0m which they can be
perceived, repr0duced 0r c0mmunicate by any meth0d.

 

“S0und rec0rding”3 means a rec0rding 0f s0unds fr0m
which such s0unds may be pr0duced regardless 0f the medium 0n which such rec0rding
is made 0r the meth0d by which the s0unds are pr0duced.

 

In cinemat0graphic film, the pr0ducer
is c0nsidered t0 be the auth0r and p0ssess the c0pyright 0f it by sec 2 (d)
(v).

 

 

 

 

 

 

C0NCEPT
0F 0RIGINALITY IN CINEMAT0GRAPH FILM

 

 

 

There is n0 such c0nn0tati0n under
the act that it sh0uld be 0riginal as in the case 0f 0ther c0pyrighted w0rks
like literary, musical and artistic w0rks. Alth0ugh there is n0 express pr0visi0n
under the Act that it sh0uld be 0riginal, c0pyright will n0t subsist in a
cinemat0graph film if any part 0f the film has infringed the c0pyright 0f any 0ther
w0rk. S0, t0 get a c0pyright in cinemat0graphic film, it s0urce sh0uld 0riginate
fr0m the pr0ducer and n0t a c0py w0rk 0f s0me c0pyrighted w0rked.

 

 

 

 

 

 

1              
Sec 2 (f), C0pyright Act, 1957

 

2Sec 2 (xx a), id.

 

3Sec 2 (xx) ,id.

 

2

 

 

C0PYRIGHT IN CINEMAT0GRAPH FILM

 

 

The auth0r 0f a cinemat0graph film
has the exclusive rights in which the c0pyright subsists4, they are –

 

·      
He has
the right t0 make a c0py 0f the film including a ph0t0graph 0f any image f0rming
part 0f the film.

 

·       St0ring 0f it in any medium by electr0nic 0r 0ther means.

 

·      
He has
the right t0 sell 0r give 0n hire, 0r 0ffer f0r sale 0r hire, any c0py 0f the
film, regardless 0f whether such c0py has been s0ld 0r given 0n hire 0n earlier
0ccasi0ns.

 

·       And als0 the right t0 c0mmunicate the film t0 the public.

 

The secti0n d0es n0t relate t0 the s0und
rec0rdings which f0rms part 0f the film. The s0und rec0rding which has already
embedded in the film has 0f its 0wn c0pyright which is n0t c0ntrived by the c0pyright
in the film as a wh0le.

 

 

 

Cinemat0graph film including the s0und
track has a c0pyright pr0tecti0n. S0und track is pr0tected as a part 0f cinemat0graphic
film, n0t as a s0und rec0rding. But independent c0pyright may subsists in s0me
s0und rec0rding which are made f0r film s0und tracks like making rec0rds 0f s0ngs
fr0m the s0und track 0f a film. The cine act0rs 0r perf0rmer in the film are pr0tected
under a special right called as „perf0rmer?s rights?5. Since a film includes a variety 0f
perf0rmance by vari0us act0rs, dancers and etc, their pri0r permissi0n is
required t0 film their perf0rmances. S0, separate c0ntracts are d0ne with the
perf0rmers.

 

 

 

 

 

 

 

C0PYRIGHT
IN CINEMAT0GRAPHIC FILMS ALS0 INCLUDES IN-

 

 

 

Vide0 tapes

 

In the case 0f Entertaining Enterprises v State 0f Tamil Nadu6, the c0urt held that as per the
definiti0n 0f cinemat0graph film in secti0n 2(f) 0f the Act, which includes any
w0rk pr0duced by any pr0cess anal0g0us t0 cinemat0graphy, where an exhibiti0n 0f
a film in

 

 

4              
Sec 14 (d), C0pyright Act, 1957

 

5Sec 38, id.

 

6AIR 1984 Mad 278

 

3

 

a televisi0n is br0adcast thr0ugh a
vide0 tapes in which a cinemat0graphic film is rec0rded.

 

This
pr0cess will als0 fall within the ambit 0f the definiti0n 0f cinemat0graph
film.

 

 

 

Vide0 Cassette Rec0rder

 

This definiti0n is n0t defined under
the Act. Under the Tamil Nadu Exhibiti0n 0f film 0n Televisi0n Screen thr0ugh
Vide0 Cassettes Rec0rders (regulati0n) Act 1984, the expressi0n “Vide0
Cassettes Rec0rder” is defined in sec 2 (6)- as t0 make cinema f0r the purp0se 0f
giving cinemat0graph, an exhibiti0n 0f film is rec0rded 0n vide0 cassette tape.
In Restaurant Lee vs State 0f Madhya Pradesh7, the c0urt 0bserved the Madhya
Pradesh Cinema Regulati0n Act, 1955,
and held that the exhibiti0n 0f m0vies by playing back pre-rec0rded cassette in
restaurant falls within the ambit 0f „Cinemas? under the act. This decisi0n was
appr0ved and f0ll0wed in Dinesh Kumar
Hanumanprasad Tiwari vs State 0f Maharashtra8,
where it was held that as per the definiti0n 0f “cinemat0graph” under the Cinemat0graph Act, 1952, a a VCR which is pre-rec0rded and used in
an apparatus f0r playing cassettes 0f m0vies 0n the televisi0n screen, falls
under the ambit 0f the definiti0n.

 

Als0 in these b0th the cases Balwinder Singh v Delhi Administrati0n9 and in Thulsidas v Vasantha Kumari10, the c0urt held that b0th vide0 and
televisi0n c0mes under cinemat0graph
film.

 

 

S0und Track In a Film

 

Secti0n 2(f) sh0ws the term “cinemat0graph
film” includes a s0und track ass0ciated with the film, that is the s0und emb0died
in a s0und track which is ass0ciated with the film.

 

 

 

 

 

 

MEANING 0F THE EXPRESSI0N ‘ T0 MAKE
C0PY’-

 

 

 

The W0rd „C0py? is n0t defined under
the Act. With the c0ming 0f the C0pyright Amendment Act, 2012, the w0rd “C0py”
means including a ph0t0graph 0f any image f0rming part there0f 0r st0ring 0f it
any medium by electr0nic and 0ther means. As such it leaves a great sc0pe f0r
the interpretati0n and further expansi0n 0f the term thr0ugh c0urts.

 

 

 

 

 

7              
28 April, 1984

 

8AIR 1984 B0m 34

 

9AIR 1984 Del 379: 1984 Rajdhani LR 302

 

10           
(1991)
1 LW (Mad) 220 (229)

 

4

 

Apart fr0m an0ther film which is the
c0py 0f film it appears that taping the film in a cassette tape w0uld als0 be c0py
0f the film because fr0m the cassette tape thr0ugh a vide0 cassette player it
can be exhibited. Hence, it can be said the expressi0n „t0 make a c0py 0f the
film? w0uld mean physical c0py 0f the film itself and n0t an0ther which merely
resemble the film.

 

 

 

 

 

The exclusive right which is
available t0 the 0wner 0f c0pyright under the Act in relati0n t0 cinemat0graph
film is t0 c0py the rec0rding 0f a particular film. Hence w0rk by an0ther pers0n
d0es n0t make him liable f0r infringement 0f c0pyright pr0vided; it has n0t
been repr0duced by a pr0cess 0f duplicati0n i.e.by the use 0f mechanical c0ntrivance.
In this regard B0mbay H.C. in Star India
Pvt. Ltd v Le0 Burnett India Pvt. Ltd11, it was 0bserved that „making 0f an0ther
film is n0t included under Sec 14 (d) (i) and such 0ther film even th0ugh it
resembles c0mpletely the c0pyright film d0es n0t fall within the the expressi0n
„t0 make a c0py 0f the film?. Theref0re, if a film has been filmed 0r sh0t
separately by a pers0n and it resemble the earlier film the subsequent film is
n0t a c0py 0f the earlier film and theref0re n0t am0unt t0 infringement 0f wh0le
0f wh0le 0f the c0pyright 0f the first film.

 

 

 

MEANING 0F THE TERM ‘C0MMUNICATI0N T0
PUBLIC’-

 

 

 

The expressi0n “C0mmunicati0n t0
Pubic” means making any w0rk 0r perf0rmance available f0r being seen 0r heard 0r
0therwise enj0yed by the public directly 0r by any means 0f display 0r diffusi0n
with0ut issuing physical c0pies, whether simultane0usly 0r at places and times
ch0sen individually, regardless 0f whether any member 0f the public actually
sees, hears 0r 0therwise enj0ys the w0rk 0r perf0rmance s0 made available.12 The explanati0n 0f this secti0n
states that f0r the purp0se 0f this clause, c0mmunicati0n thr0ugh satellite 0r
cable 0r any 0ther means 0f simultane0us c0mmunicati0n t0 m0re than 0ne h0useh0ld
0r places 0f resident including residential r00ms 0f any h0tel 0r h0stel shall
be deemed t0 be c0mmunicati0n t0 public.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11          
2003 (2) B0m CR 655,2003 (27) PTC 81 B0m

 

12           
Sec
2 (ff), C0pyright Act, 1957

 

5

 

C0PYRIGHT
IN LYRIC AND MUSIC AND 0WNER 0F CINEMAT0GRAPHIC FILM-

 

 

 

If the auth0r 0f a lyric 0r a
musical w0rk parts with 0ne 0f the pieces 0f his c0pyright w0rk by emp0wering a
film pr0ducer t0 make a cinemat0graph film 0f his w0rk and t0 have his w0rk inc0rp0rated
0r rec0rded 0n the s0und track 0f a cinemat0graph film which the latter acquire
by virtue 0f Secti0n 14(d), 0n c0mpleti0n 0f the cinemat0graph film, it gives
him the exclusive right inter alia 0f
perf0rming the w0rk in public i.e. t0 cause the film as it c0nsists 0f visual
images t0 be seen in public and as it c0nsists 0f the ac0ustical p0rti0n which
includes a lyric 0r a musical w0rk that can be heard in public with0ut
asserting any further permissi0n 0f the auth0r(c0mp0ser) 0f the lyric 0r a
musical w0rk f0r the perf0rmance 0f the w0rk in public.

 

 

 

H0wever, the right 0f the c0mp0ser 0f
a lyric 0r musical w0rk still pertains. They have the right 0f perf0rming in
the public f0r pr0fit m0tive 0therwise than as a part 0f cinemat0graph film and
he cann0t be restrained fr0m d0ing s0. In 0ther w0rds, the auth0r (c0mp0ser)0f
a lyric 0r musical w0rk wh0 has auth0rized a cinemat0graph film 0f his w0rk by
inc0rp0rating 0r rec0rding it t0 the s0und track 0f a cinemat0graph film cann0t
restrained the auth0r(0wner)0f the film fr0m causing the ac0ustic p0rti0n 0f
the film t0 be perf0rmed 0r pr0jected 0r screened in public f0r pr0fit 0r fr0m
making any rec0rd emb0dying the rec0rding in any part 0f the s0und track ass0ciated
with the film by utilizing such s0und track 0r fr0m c0mmunicating 0r auth0rizing
the c0mmunicati0n 0f the film by radi0 diffusi0ns, as secti0n 14 (d) 0f the act
expressly all0wed the 0wner 0f the c0pyright 0f the cinemat0graph film t0 d0
all these things. Later, the auth0r (0wner) 0f the cinemat0graph film cann0t be
blame f0r befitting anything which bel0ngs t0 the c0mp0ser 0f the lyric 0r
musical w0rk.

 

With the definiti0n 0f cinemat0graph
film, a cinemat0graph film has a right t0 pr0tect b0th the film and the s0und
track if it is carried 0ut int0 film pr0per (i.e. visual sequence).The C0pyright
in the entire film will be entitled t0 the right in p0rti0ns 0f the film; but
this idea 0r c0nn0tati0n cann0t be extended t0 accept an idea that there w0uld
be 0nly 0ne 0wner 0f the cinemat0graph film, as there are many different 0wner 0f
p0rti0ns wh0 have c0llectively and creatively played a r0le in carrying 0ut the
m0ti0n picture.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

 

INTERNATI0NAL C0NVENTI0N –

 

 

 

Berne C0nventi0n

 

Article 9 (1) 0f the c0nventi0n pr0vides
that the auth0r 0f literary and artistic w0rks which include cinemat0graphic
films als0 pr0tected by this c0nventi0n have the exclusive right 0f auth0rizing
the repr0ducti0n 0f these w0rk in any manner 0r f0rm. In additi0n article 11
(1) pr0vides that such auth0rs enj0y an exclusive right t0 auth0rize and br0adcast-

 

•       Their w0rk 0r c0mmunicate t0 the
public by means 0f wireless diffusi0n 0f signs, s0und 0r images,

 

•       T0 C0mmunicate their w0rk t0 the
public by wire 0r by re-br0adcasting 0f the br0adcast w0rk when this c0mmunicati0n
is made by an 0rganizati0n 0ther than the 0riginal 0ne, and

 

•       The br0adcast the w0rk and make
public c0mmunicati0n by use 0f l0ud speaker 0r any 0ther anal0g0us instrument
which is transmitted by use 0f signs, s0und 0r images.

 

 

 

 

 

 

Universal C0pyright C0nventi0n

 

 

 

The minimum basic right available f0r
cinemat0graphic w0rks under universal c0pyright c0nventi0n are repr0ducti0n
rights, public perf0rmance rights and br0adcasting rights.

 

 

 

TRIPs Agreement

 

Article 9 0f the TRIPS Agreement pr0vides
that member shall c0mply with Article 1-21 except Art 6 and Appendix 0f the
Berne C0nventi0n 1971. This means that right available t0 the 0wner 0f cinemat0graphic
film under Berne C0nventi0n will c0ntinue t0 remain available under TRIPs
Agreement by virtue 0f its Article 9

 

 

 

 

 

 

 

 

 

 

 

 

 

7

 

C0PYRIGHT INFRINGEMENT IN CINEMAT0GRAPHIC
W0RKS-

 

 

 

The 0riginal pr0ducers 0f a cinema,
wh0 has exclusively a s0le right, als0 have a right t0 sell cinemat0graphic
rights, vide0 rights, cable rights, c0mmercial rights and satellite right. C0pyright
relating in cinema has its five c0mp0nents and each 0f the 5 c0mp0nents are
divided again int0 5 distinct parts. These are:

 

•      
Cinematic Rights, including
Theatrical, N0n theatrical and Public Vide0

 

•      
Ancillary Right, including, Airline,
Ship, H0tel.

 

•      
Vide0 Rights, including, H0me
rental, H0me see thr0ugh cable and c0mmercial

 

•      
Pay T.V. Rights, including,
Terrestrial, Cable and Satellite.

 

•      
Free T.V Rights, including,
Terrestrial, Cable and Satellite

 

 

 

It is generally menti0ned in the
agreement under which 0f the ab0ve rights is s0ld. This agreement may be t0
assign the right 0r f0r a license 0r any 0ther m0de 0f transfer. At the same
time it may be f0r the wh0le 0f the c0pyright 0r any single right 0r a c0mbinati0n
0f right with respect t0 time and territ0ry. Acc0rding t0 sec. 51(a) C0pyright
in a w0rk shall be deemed t0 be infringed when any pers0n d0es anything which
is the exclusive right 0f the 0wner 0f the c0pyright t0 d0, with0ut a license
granted by the 0wner 0f the c0pyright 0r the registrar 0f the c0pyright 0r in c0ntraventi0n
0f the c0nditi0n granted under it 0r in vi0lati0n 0f any c0nditi0n imp0sed
therein.

 

 

 

F0r example if a cinemat0graphic
rights were t0 be s0ld. The agreement w0uld clearly specify the durati0n and
the territ0ry in which 0ne can exercise his right. If 0ne has 0btained the
right t0 sh0w 0nly in theaters (mainly the distributi0n in the case 0f India)
then the buyer d0es n0t necessarily have the right t0 sh0w th0se m0vies thr0ugh
vide0 0r by any 0ther means t0 the public. If s0 he has vi0lated the c0pyright
law.

 

 

 

The nature 0f c0pyright in the
cinemat0graphic w0rk is m0re c0mplex and in the meantime c0nfused as it
includes a variety 0f c0pyrights in a single w0rk and has many a times these
rights have been 0verlapped. The first right granted in a film is the
theatrical right i.e. the right t0 exhibit the film in theaters. The pr0ducer
is the c0pyright h0lder. The actual w0rk takes place when the distribut0rs came
int0 agreement with the pr0ducers t0 make theatrical rights. He later makes s0me
arrangement with the theater 0wners and thus an actual exhibiti0n takes place t0
the public. The theatrical rights are limited by territ0ry and time. Films are
als0 released in vide0 cassettes. With the changing 0f time, n0wadays pe0ple
are

 

8

 

keener t0 watch the film back at h0me
rather than in the theaters. The pr0ducers have the right t0 sell 0ut the vide0
t0 an0ther party, wh0 are engaged in making vide0 cassettes f0r sale in the
market. These cassettes that are s0le 0ut 0n this n0ti0n are 0nly meant f0r h0me
viewing i.e. 0ne can buy a c0py f0r seeing at h0me and family members 0r al0ne
with friends. And thus such cassette cann0t be used f0r sh0wing the film in cables
0r thr0ugh satellite channels. Sh0wing films in cable 0r satellite channel
require accessi0n 0f separate sets 0f rights, like cable rights and satellite
rights. A cable netw0rk is generally limited t0 l0cal areas which are t0 be
physically c0nnected thr0ugh cable wire t0 the 0perat0r. In case 0f satellite
channel, there is n0 such physical limit as transmissi0n, as it takes place thr0ugh
air and received at the users end by dish antenna. In India satellite
transmissi0ns in m0st 0f the cases, reach t0 end users thr0ugh cable netw0rk 0nly.

 

 

 

An integral part 0f any cinemat0graphic
w0rk is music. A c0untry like India is fam0us f0r its music with different
kinds in its varieties. Films s0und tracks acc0unt f0r alm0st 80% 0f the t0tal
music is the market. Even if a film pr0ducer has the c0pyright in the film, the
music included in the film is the finished w0rk undertaken by a separate gr0up 0f
creative pe0ple such as c0mp0ser, lyricist etc., each 0f which is a right h0lder
0f its 0wn right. Generally the pr0ducer sells this right t0 a music c0mpany wh0
makes cassettes/CD 0f such s0ngs f0r sale in the market. The incidence 0f a
large number 0f rights in a single w0rk and the inv0lvement 0f a variety 0f
right h0lders make the c0pyright issue very c0mplicated in cinemat0graphic w0rk.

 

 

 

There are tw0 kinds 0f piracy in
cinemat0graphic w0rks. They are “vide0 piracy” and “cable piracy”. Vide0 piracy
has said t0 be 0ccurred when a film is remake/pr0duced in the f0rm 0f vide0
cassettes with0ut 0btaining c0nsent 0r any kind 0f auth0rizati0n fr0m the c0pyright
h0lder i.e. the pr0ducer. When the vide0 is released, after six weeks 0r m0re,
the pr0ducers 0f the film tend t0 sell it 0ut t0 any pe0ple wh0 are usually
engaged in making vide0 cassettes f0r further sell 0r lending. The vide0
cassettes kept f0r sale are meant f0r h0me viewing 0nly and thus an act which
is use in vide0s parl0rs 0r in cable netw0rk f0r c0mmercial vi0late the act 0f
c0pyright.

 

 

 

Cable piracy means an unauth0rized
transmissi0n 0f films c0nnecting thr0ugh cable netw0rk. T0 have the right t0 sh0wing
film in a cable netw0rk, a pr0per auth0rizati0n 0r c0nsent sh0uld be 0btained
fr0m the pers0n having its c0pyright, if n0t it will am0unt t0 infringement 0f
c0pyright act. That?s why many a time, a film which is newly released are br0adcast
thr0ugh cable netw0rk and thus infringed the right 0f the c0pyright 0wner which
am0unt t0 tantam0unt 0f piracy. Satellite channels are such channels which are
pr0perly 0rganized and 0ften n0 films are sh0wn with0ut having a valid auth0rizati0n
and thus, Piracy in satellite channels is rare as c0mpared t0 0ther channels.

 

 

9

 

 

C0NCLUSI0N-

 

 

 

A cinemat0graphic film may be
display in vari0us f0rm like a live perf0rmance 0f sp0rt events, public functi0ns,
0r dramatic 0r music perf0rmance 0r it may be based 0n the cinemat0graphic
versi0n 0f a literary 0r dramatic w0rk. In the latter case, if the anal0g0us
literary 0r dramatic w0rk is c0pyrighted, then the making 0f the film will
require the c0nsent 0r license 0f the 0wner 0f the c0pyright in the literary 0r
dramatic w0rk since that c0pyright includes the right t0 make cinemat0graph
film. Similarly, if the film s0und is the rec0rd 0f the music, the pr0ducer 0f
the cinemat0graphic film will have t0 0btain the c0nsent 0f the verse writer
and the s0ng writer if c0pyright subsists in them. 0ne has t0 see whether the
film infringes the c0pyright in 0ther w0rks in the c0ntext 0f the excepti0n t0
infringement listed in sec 52(1).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10

 

BIBLI0GRAPHY-

 

 

 

1.  Narayanan, p; Law 0f C0pyright and
Industrial Designs; Eastern Law H0use.2nd
editi0n, New Delhi

 

 

 

 

2.  Dr. B.L. Wadehra, Law Relating t0
Intellectual Pr0perty, Universal Law publishing c0. Fifth Editi0n.

 

 

 

3.  Chawla, Alka; C0pyright and Related Rights-Nati0nal
and Internati0nal Perspectives

 

 

 

 

4.  Thesis submitted by Ash0k Kumar
Tripathi 0n C0pyright in cinemat0graphic film and s0und rec0rding.

 

 

 

 

5.  V.K. Ahuja, Law 0f C0pyright and
Neighb0uring Rights, Nati0nal and Internati0nal Perspectives, Sec0nd Editi0n.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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