TERM So, to get a copyright in cinematographic

 

 

TERM PAPER

 

 

 

 

 

 

 

 

 

 

COPYRIGHT
IN CINEMATOGRAPHIC FILMS

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(THE
COPYRIGHT ACT, 1957)

 

 

 

 

 

 

 

 

 

SUBMITTED TO:

 

DR. V.K. AHUJA

 

 

 

 

 

 

 

 

BY:

 

N.P. HAIBILA

 

ROLL NO. 51851

 

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

 

FACULTY OF LAW

 

UNIVERSITY OF DELHI

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1

 

 

 

INTRODUCTION

 

 

 

 

By section 13 (1) (b), a virtue of
copyright subsists in a cinematograph film. According to the Concise Oxford
dictionary, a cinematograph film is describes as a film where a rapid projector
run through an apparatus called cinematograph which produces the illusion of
motion on a screen of many photographs taken consecutively on a long film.

 

The expression “cinematograph film”
means „any work of visual recording and includes a sound recording accompanying
such visual recording and “cinematograph” shall be construed

 

as including any work produced by
any process analogous to cinematography including video films?1.

 

“Visual recording”2 it means 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 communicate by any method.

 

“Sound recording”3 means a recording of sounds from
which such sounds may be produced regardless of the medium on which such
recording is made or the method by which the sounds are produced.

 

In cinematographic film, the
producer is considered to be the author and possess the copyright of it by sec
2 (d) (v).

 

 

 

 

 

 

CONCEPT OF ORIGINALITY IN CINEMATOGRAPH FILM

 

 

 

There is no such connotation under
the act that it should be original as in the case of other copyrighted works
like literary, musical and artistic works. Although there is no express
provision under the Act that it should be original, copyright will not subsist
in a cinematograph film if any part of the film has infringed the copyright of
any other work. So, to get a copyright in cinematographic film, it source
should originate from the producer and not a copy work of some copyrighted
worked.

 

 

 

 

 

 

1              
Sec 2 (f), Copyright Act, 1957

 

2Sec 2 (xx a), id.

 

3Sec 2 (xx) ,id.

 

2

 

 

COPYRIGHT IN CINEMATOGRAPH FILM

 

 

The author of a cinematograph film
has the exclusive rights in which the copyright subsists4, they are –

 

·      
He has
the right to make a copy of the film including a photograph of any image
forming part of the film.

 

·       Storing of it in any medium by electronic or other means.

 

·      
He has
the right to sell or give on hire, or offer for sale or hire, any copy of the
film, regardless of whether such copy has been sold or given on hire on earlier
occasions.

 

·       And also the right to communicate the film to the public.

 

The section does not relate to the
sound recordings which forms part of the film. The sound recording which has
already embedded in the film has of its own copyright which is not contrived by
the copyright in the film as a whole.

 

 

 

Cinematograph film including the
sound track has a copyright protection. Sound track is protected as a part of
cinematographic film, not as a sound recording. But independent copyright may
subsists in some sound recording which are made for film sound tracks like
making records of songs from the sound track of a film. The cine actors or
performer in the film are protected under a special right called as
„performer?s rights?5. Since a film includes a variety of
performance by various actors, dancers and etc, their prior permission is
required to film their performances. So, separate contracts are done with the
performers.

 

 

 

 

 

 

 

COPYRIGHT IN CINEMATOGRAPHIC FILMS ALSO INCLUDES IN-

 

 

 

Video
tapes

 

In the case of Entertaining Enterprises v State of Tamil Nadu6, the court held that as per the
definition of cinematograph film in section 2(f) of the Act, which includes any
work produced by any process analogous to cinematography, where an exhibition
of a film in

 

 

4              
Sec 14 (d), Copyright Act, 1957

 

5Sec 38, id.

 

6AIR 1984 Mad 278

 

3

 

a television is broadcast through a
video tapes in which a cinematographic film is recorded.

 

This process will also fall within
the ambit of the definition of cinematograph film.

 

 

 

Video
Cassette Recorder

 

This definition is not defined under
the Act. Under the Tamil Nadu Exhibition of film on Television Screen through
Video Cassettes Recorders (regulation) Act 1984, the expression “Video
Cassettes Recorder” is defined in sec 2 (6)- as to make cinema for the purpose
of giving cinematograph, an exhibition of film is recorded on video cassette
tape. In Restaurant Lee vs State of Madhya Pradesh7, the court observed the Madhya
Pradesh Cinema Regulation Act, 1955,
and held that the exhibition of movies by playing back pre-recorded cassette in
restaurant falls within the ambit of „Cinemas? under the act. This decision was
approved and followed in Dinesh Kumar
Hanumanprasad Tiwari vs State of Maharashtra8,
where it was held that as per the definition of “cinematograph” under the Cinematograph Act, 1952, a a VCR which is pre-recorded and used in
an apparatus for playing cassettes of movies on the television screen, falls
under the ambit of the definition.

 

Also in these both the cases Balwinder Singh v Delhi Administration9 and in Thulsidas v Vasantha Kumari10, the court held that both video and
television comes under cinematograph
film.

 

 

Sound
Track In a Film

 

Section 2(f) shows the term
“cinematograph film” includes a sound track associated with the film, that is
the sound embodied in a sound track which is associated with the film.

 

 

 

 

 

 

MEANING OF THE EXPRESSION ‘ TO MAKE COPY’-

 

 

 

The Word „Copy? is not defined under
the Act. With the coming of the Copyright Amendment Act, 2012, the word “Copy”
means including a photograph of any image forming part thereof or storing of it
any medium by electronic and other means. As such it leaves a great scope for
the interpretation and further expansion of the term through courts.

 

 

 

 

 

7              
28 April, 1984

 

8AIR 1984 Bom 34

 

9AIR 1984 Del 379: 1984 Rajdhani LR 302

 

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

 

4

 

Apart from another film which is the
copy of film it appears that taping the film in a cassette tape would also be
copy of the film because from the cassette tape through a video cassette player
it can be exhibited. Hence, it can be said the expression „to make a copy of
the film? would mean physical copy of the film itself and not another which
merely resemble the film.

 

 

 

 

 

The exclusive right which is
available to the owner of copyright under the Act in relation to cinematograph
film is to copy the recording of a particular film. Hence work by another
person does not make him liable for infringement of copyright provided; it has
not been reproduced by a process of duplication i.e.by the use of mechanical
contrivance. In this regard Bombay H.C.
in Star India Pvt. Ltd v Leo Burnett India Pvt. Ltd11, it was observed that „making of
another film is not included under Sec 14 (d) (i) and such other film even
though it resembles completely the copyright film does not fall within the the
expression „to make a copy of the film?. Therefore, if a film has been filmed
or shot separately by a person and it resemble the earlier film the subsequent
film is not a copy of the earlier film and therefore not amount to infringement
of whole of whole of the copyright of the first film.

 

 

 

MEANING OF THE TERM ‘COMMUNICATION TO PUBLIC’-

 

 

 

The expression “Communication to
Pubic” means making any work or performance available for being seen or heard
or otherwise enjoyed by the public directly or by any means of display or
diffusion without issuing physical copies, whether simultaneously or at places
and times chosen individually, regardless of whether any member of the public
actually sees, hears or otherwise enjoys the work or performance so made
available.12 The explanation of this section
states that for the purpose of this clause, communication through satellite or
cable or any other means of simultaneous communication to more than one
household or places of resident including residential rooms of any hotel or
hostel shall be deemed to be communication to public.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

12           
Sec
2 (ff), Copyright Act, 1957

 

5

 

COPYRIGHT
IN LYRIC AND MUSIC AND OWNER OF CINEMATOGRAPHIC FILM-

 

 

 

If the author of a lyric or a
musical work parts with one of the pieces of his copyright work by empowering a
film producer to make a cinematograph film of his work and to have his work
incorporated or recorded on the sound track of a cinematograph film which the
latter acquire by virtue of Section 14(d), on completion of the cinematograph
film, it gives him the exclusive right inter
alia of performing the work in public i.e. to cause the film as it consists
of visual images to be seen in public and as it consists of the acoustical
portion which includes a lyric or a musical work that can be heard in public
without asserting any further permission of the author(composer) of the lyric
or a musical work for the performance of the work in public.

 

 

 

However, the right of the composer
of a lyric or musical work still pertains. They have the right of performing in
the public for profit motive otherwise than as a part of cinematograph film and
he cannot be restrained from doing so. In other words, the author (composer)of
a lyric or musical work who has authorized a cinematograph film of his work by
incorporating or recording it to the sound track of a cinematograph film cannot
restrained the author(owner)of the film from causing the acoustic portion of
the film to be performed or projected or screened in public for profit or from
making any record embodying the recording in any part of the sound track
associated with the film by utilizing such sound track or from communicating or
authorizing the communication of the film by radio diffusions, as section 14
(d) of the act expressly allowed the owner of the copyright of the
cinematograph film to do all these things. Later, the author (owner) of the
cinematograph film cannot be blame for befitting anything which belongs to the
composer of the lyric or musical work.

 

With the definition of cinematograph
film, a cinematograph film has a right to protect both the film and the sound
track if it is carried out into film proper (i.e. visual sequence).The
Copyright in the entire film will be entitled to the right in portions of the
film; but this idea or connotation cannot be extended to accept an idea that there
would be only one owner of the cinematograph film, as there are many different
owner of portions who have collectively and creatively played a role in
carrying out the motion picture.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

 

INTERNATIONAL CONVENTION –

 

 

 

Berne
Convention

 

Article 9 (1) of the convention
provides that the author of literary and artistic works which include
cinematographic films also protected by this convention have the exclusive
right of authorizing the reproduction of these work in any manner or form. In
addition article 11 (1) provides that such authors enjoy an exclusive right to
authorize and broadcast-

 

•       Their work or communicate to the
public by means of wireless diffusion of signs, sound or images,

 

•       To Communicate their work to the
public by wire or by re-broadcasting of the broadcast work when this
communication is made by an organization other than the original one, and

 

•       The broadcast the work and make
public communication by use of loud speaker or any other analogous instrument
which is transmitted by use of signs, sound or images.

 

 

 

 

 

 

Universal
Copyright Convention

 

 

 

The minimum basic right available
for cinematographic works under universal copyright convention are reproduction
rights, public performance rights and broadcasting rights.

 

 

 

TRIPs Agreement

 

Article 9 of the TRIPS Agreement
provides that member shall comply with Article 1-21 except Art 6 and Appendix
of the Berne Convention 1971. This means that right available to the owner of
cinematographic film under Berne Convention will continue to remain available
under TRIPs Agreement by virtue of its Article 9

 

 

 

 

 

 

 

 

 

 

 

 

 

7

 

COPYRIGHT INFRINGEMENT IN CINEMATOGRAPHIC WORKS-

 

 

 

The original producers of a cinema,
who has exclusively a sole right, also have a right to sell cinematographic
rights, video rights, cable rights, commercial rights and satellite right.
Copyright relating in cinema has its five components and each of the 5
components are divided again into 5 distinct parts. These are:

 

•      
Cinematic Rights, including
Theatrical, Non theatrical and Public Video

 

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

 

•      
Video Rights, including, Home
rental, Home see through cable and commercial

 

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

 

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

 

 

 

It is generally mentioned in the
agreement under which of the above rights is sold. This agreement may be to
assign the right or for a license or any other mode of transfer. At the same
time it may be for the whole of the copyright or any single right or a
combination of right with respect to time and territory. According to sec.
51(a) Copyright in a work shall be deemed to be infringed when any person does
anything which is the exclusive right of the owner of the copyright to do,
without a license granted by the owner of the copyright or the registrar of the
copyright or in contravention of the condition granted under it or in violation
of any condition imposed therein.

 

 

 

For example if a cinematographic
rights were to be sold. The agreement would clearly specify the duration and
the territory in which one can exercise his right. If one has obtained the
right to show only in theaters (mainly the distribution in the case of India)
then the buyer does not necessarily have the right to show those movies through
video or by any other means to the public. If so he has violated the copyright
law.

 

 

 

The nature of copyright in the
cinematographic work is more complex and in the meantime confused as it
includes a variety of copyrights in a single work and has many a times these
rights have been overlapped. The first right granted in a film is the
theatrical right i.e. the right to exhibit the film in theaters. The producer
is the copyright holder. The actual work takes place when the distributors came
into agreement with the producers to make theatrical rights. He later makes
some arrangement with the theater owners and thus an actual exhibition takes
place to the public. The theatrical rights are limited by territory and time.
Films are also released in video cassettes. With the changing of time, nowadays
people are

 

8

 

keener to watch the film back at
home rather than in the theaters. The producers have the right to sell out the
video to another party, who are engaged in making video cassettes for sale in
the market. These cassettes that are sole out on this notion are only meant for
home viewing i.e. one can buy a copy for seeing at home and family members or
alone with friends. And thus such cassette cannot be used for showing the film
in cables or through satellite channels. Showing films in cable or satellite
channel require accession of separate sets of rights, like cable rights and
satellite rights. A cable network is generally limited to local areas which are
to be physically connected through cable wire to the operator. In case of
satellite channel, there is no such physical limit as transmission, as it takes
place through air and received at the users end by dish antenna. In India
satellite transmissions in most of the cases, reach to end users through cable
network only.

 

 

 

An integral part of any
cinematographic work is music. A country like India is famous for its music
with different kinds in its varieties. Films sound tracks account for almost
80% of the total music is the market. Even if a film producer has the copyright
in the film, the music included in the film is the finished work undertaken by
a separate group of creative people such as composer, lyricist etc., each of
which is a right holder of its own right. Generally the producer sells this
right to a music company who makes cassettes/CD of such songs for sale in the
market. The incidence of a large number of rights in a single work and the
involvement of a variety of right holders make the copyright issue very
complicated in cinematographic work.

 

 

 

There are two kinds of piracy in
cinematographic works. They are “video piracy” and “cable piracy”. Video piracy
has said to be occurred when a film is remake/produced in the form of video
cassettes without obtaining consent or any kind of authorization from the copyright
holder i.e. the producer. When the video is released, after six weeks or more,
the producers of the film tend to sell it out to any people who are usually
engaged in making video cassettes for further sell or lending. The video
cassettes kept for sale are meant for home viewing only and thus an act which
is use in videos parlors or in cable network for commercial violate the act of
copyright.

 

 

 

Cable piracy means an unauthorized
transmission of films connecting through cable network. To have the right to
showing film in a cable network, a proper authorization or consent should be
obtained from the person having its copyright, if not it will amount to
infringement of copyright act. That?s why many a time, a film which is newly
released are broadcast through cable network and thus infringed the right of
the copyright owner which amount to tantamount of piracy. Satellite channels
are such channels which are properly organized and often no films are shown
without having a valid authorization and thus, Piracy in satellite channels is
rare as compared to other channels.

 

 

9

 

 

CONCLUSION-

 

 

 

A cinematographic film may be
display in various form like a live performance of sport events, public
functions, or dramatic or music performance or it may be based on the
cinematographic version of a literary or dramatic work. In the latter case, if
the analogous literary or dramatic work is copyrighted, then the making of the
film will require the consent or license of the owner of the copyright in the
literary or dramatic work since that copyright includes the right to make
cinematograph film. Similarly, if the film sound is the record of the music,
the producer of the cinematographic film will have to obtain the consent of the
verse writer and the song writer if copyright subsists in them. One has to see
whether the film infringes the copyright in other works in the context of the
exception to infringement listed in sec 52(1).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10

 

BIBLIOGRAPHY-

 

 

 

1.  Narayanan, p; Law of Copyright and
Industrial Designs; Eastern Law House.2nd
edition, New Delhi

 

 

 

 

2.  Dr. B.L. Wadehra, Law Relating to
Intellectual Property, Universal Law publishing co. Fifth Edition.

 

 

 

3.  Chawla, Alka; Copyright and Related Rights-National
and International Perspectives

 

 

 

 

4.  Thesis submitted by Ashok Kumar
Tripathi on Copyright in cinematographic film and sound recording.

 

 

 

 

5.  V.K. Ahuja, Law of Copyright and
Neighbouring Rights, National and International Perspectives, Second Edition.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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