Copyrights And Films: A Legal View Point

The film industry in India has become a global enterprise, producing the highest number of films annually. Films are the most important source of entertainment which unlike painting or writing a novel cannot be done individually.

A film is an amalgamation of the efforts of a plethora of people involving the music director, the director of photography, the art director, stunt men, the choreographer, spot boys, the makeup artists and last but not the least, the Captain of the ship the director and the actors.

With the advent of the Internet, YouTube, Torrents and other such platforms, today's audience are exposed to latest technologies and film making styles from across the globe, thereby resulting in their expectations soaring to new heights. As a result, producers today are being forced to pump in huge amounts of money in order to produce a movie that meets expectations that are on par with global standards. With the increasing number of films being produced every year, marketing spends have increased exponentially and films are promoted on many platforms. With the involvement of big corporate houses like Reliance, UTV, Sun, Fox Network in the film industry, the budget of the Indian films have sky rocketed and the films are getting a far wider exposure in global markets. So much so, that, today, even regional movies are made at budgets of over Rs 100 crores.

However, despite the enormous budgets and involvement of corporates, the ways of working of the film industry and the legal implications here are quite different from those of other industries. Even today, a lot of work in the film industry is done purely through word of mouth, or is done internally within the various unions that reside in the industry. And all of this is being done with little involvement of proper legal systems. Therefore, the laws with regard to films are still at a nascent stage and are yet to be refined.

Having said that, it is important to recognize that given the intangible nature of films such as script, storyline etc, it is imperative to understand the legal frameworks by which the creators or producers of films can protect their work from being plagiarized. In this day and time, the producer of a film, being the person who takes the initiative and responsibility to make the film, is considered as the owner of the film. Hence, the burden to protect the film also lies mainly in the hands of the producer or the production house.

The most important Act with respect to film protection today is the Indian Copyright Act, (1957) ("The ACT"). The Copyright Act 1957, defines "cinematograph film" as means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means 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;. The copyright in case of a cinematograph film will subsist with the owner, or in other words the producer or production house, for a period of 60 years. This does not only mean that the owner of a cinematograph has the right to exploit the film for a period of 60 years but it also means that he will have protection over the said film for the same period.

Protection of a film today can be broadly divided into two stages, Protection during the Pre-production stage and protection during the Post-Production stage. Pre-production comprises the work done in preparation for the film's production, including scripting, screenplay, hiring of cast and crew, shoot schedule, location hunting, rehearsals etc and this is where there is a need for a very strict set of laws and legal protection. Pre-production is considered as the foundation of the film. Once these are protected, the protection of the film becomes considerably easier.

The first and the foremost thing during the pre-production stage would be to enter into strong agreements between the makers of the movie and the various parties involved in the making of the film, laying down the right and duties of each of the parties. Some of the most important agreements that are advisable to be executed is with the actors, agreements relating to promotion and distribution, agreements with the music composers, agreements relating to the merchandising of the products, co-production agreements, Theatrical and other distribution rights agreements, agreements relating to international distribution, and right to broadcast and telecast the film and finally the protection and conveyance of intellectual property rights, such as copyrights, performer's rights, trademarks, assignment of copyrights etc. These agreements will help various parties in getting an understanding of their roles, responsibilities, rights and their limitations. This will help in avoiding any controversies and misunderstandings that may arise in the future and the shooting of the film can be initiated post these agreements.

It is said that even during the production of the film there are various aspects to a film which needs to be protected. The following aspects of a film can be protected under the Copyrights Act.

1. Literary Work: This includes any work which is expressed in printing or writing. With respect to a film, this will include the storyline, script, dialogues, lyrics, computer graphics, animations etc.
2. Artistic work: This includes a painting, sculpture, drawing or any such work which possesses artistic quality. In a film, this translates to a background set, costumes, structures built for the making of the film etc. If these costumes, sets, designs etc can be put in paper in the form of a written work or a drawing, these can be protected under the Act.
3. Dramatic work: These includes any recitation or choreographic work. With respect to a film, this refers to any dance movements, stunts, etc. Again, these when put into writing in a paper can be protected under the Act.
4. Musical work: This refers to work consisting of music including graphical notation of such works. With respect to a film, this translates to songs, background scores, sound recording, theme music etc.
5. Sound recording: This refers to the combination of the lyrics, song, music which is present in the cinematograph film. Each of the above mentioned aspects can be individually protected under the Copyrights Act. However, when they converge to form a Cinematographic film, the producer or the production house will become the owner of the Cinematograph film and the Copyrights associated with the film. So, in this case, the production house or the producer need not protect each of the individual aspects. The fact that the Cinematographic film is protected would imply that each of the individual aspects is also protected. Hence, the lyricist or music director for instance, may not have a right over their contribution to the film unless otherwise specifically stated in the agreement made prior to the production stage. However, strangely it is recognised that the work of an actor/actress in a cinematograph is not protected under the Act.

Once the production of the film is complete, the post production protection will come into play. The protection of the film becomes absolutely necessary at this stage. Here, it is imperative to delve into some of the other aspects of what our current legal system offers with respect to film industry before proceeding to protection.

As a cinematographic film, there are certain rights that are associated with the owner of a Copyright:

1. Reproduction Rights: This right entitles the copyright owner the complete ownership over the film and no person shall make one or more copies of this work, including the sounds and sound recordings, without the permission of the copyright owner.
2. Distribution and Rental rights: This is the right enjoyed by the Copyright owner where-in he enjoys the exclusive right over the initial distribution of the copies of the work. Rental rights are a very recent addition to the bundle of rights for a cinematographic film. Rental rights refer to making available for the public or persons or establishment hiring the film, for a limited period of time the use of the film. However, the rental rights is a very restricted act and the final rights over the film still lies with the copyright owner. Hence, for instance, the persons hiring the film may have only limited broadcasting rights. To further sell or hire the film to others, they may have to get prior permission from the original copyright owner.
3. Synchronization Rights: This is the right to synchronize the performance of a sound recording in a specific way with visual images. Synchronization rights are important in the use of songs and sound recordings on TV shows, in movies, or other types of motion picture and video media.
4. Derivative Works Rights: The derivative works right is the right to take an original song or sound recording and make alterations to it. Such as a right to alter a song by writing new lyrics for it or alter a sound recording by mixing in additional instruments or incorporating it into a medley.
5. Right to communicate the work to public or broadcasting rights: This is a right enjoyed by the owner whereby he can sell or assign the cinematograph film to broadcasting or a cable network. This right can subsist with the broadcasting channel for a period of 25 years, unless otherwise specified in the agreement, once the permit is given by the owner of the cinematograph film.
6. Right to adaptation and translation: It is an exclusive right to have the film adapted into another film or translated in any other language and re- release it.
7. Display Rights: This right refers to the right to display a song publicly. This is a right encountered less frequently than the others, but would become an issue if someone wanted to display a song in let's say some fashion program (e.g. put the lyrics for a song in their store window). There have been constant efforts from the government today towards regularising the legal system with regard to the film industry. The Ministry of Information and Broadcasting ("MIB") is the governmental body that is involved in forming the rules and the regulations regarding films in India. The most important wing with regard to the film industry is the Central Board of Film Certification ("CBFC"), this facet of a certification of a film is covered under the Cinematograph Act, 1952. Any completed film which is to be exhibited has to obtain certification from CBFC.

The rights of the producers have been discussed thus far. In the post production stages, apart from the producer, the Act provides protection even for the artists who contribute to the film. For example, the right convened on the music composers and the singers of the film, this right is called the "PERFORMER'S RIGHT". By virtue of this right the music composer can perform his contribution to the film in public and the producer of the film cannot object to the same.

There are also many associations that have been established to protect those who are involved in the production of a movie. One such society is the Indian Performers Rights Society ("IPRS") which is an organisation that aims to protect the Indian composers and music publishers whose works are publicly performed. Another organisation is the "The Phonographic Performance Ltd. ("PPL")". The Music companies register themselves with the PPL, which administers the telecasting and broadcasting of their sound recordings. The Film Writer's Association is another organization, which is a trade union both in national levels and the state levels and strives to protect the interest of the cinematographic script writers.

Even with tight contracts, applicable laws and various societies to protect the producers and performers, some of the biggest problems faced by the film industry today is plagiarism and piracy. This is a problem not just in India but is a universal issue. Plagiarism is a problem that exists prominently within the industry such as stealing a script by making "necessary" changes so as not to credit the script writer, or it is often seen that a story of a foreign film is copied and is released as an original Indian film. Piracy is another massive problem that exists in the film industry today. Any form of piracy or plagiarism with regard to a cinematograph film is considered as an infringement of Copyright under the Act. In India, many methods are used to counter this infringement, a civil suit or other civil proceeding can be initiated in a district court or a Judicial Magistrate of the First Class which is empowered to adjudicate on the criminal offense of piracy. The punishment and penalty with regard to piracy has also been made strict.

The owners of a cinematography film have also tried various ways to protect their work. The producers now are beginning to go for a worldwide release instead of releasing in one country and selling DVD rights to other countries. In the original DVD, a warning note is being published stating the consequence of piracy. The artists of the film request the public not to encourage piracy and the DVDs are also being designed so as to ensure that they cannot be copied and resold in public. The cinema halls also do their bit by not allowing video recorders and high resolution cameras, inside the theatres. However, even with all these efforts, piracy and plagiarism are rampant in our country.

Another interesting concept that has emerged as a system to curtail piracy is called Copyleft. In copyright law, the owner is permitted to prohibit others from reproducing, adapting and distributing his work. However, under Copyleft, the owner surrenders some but not all rights under Copyright law. Therefore, the person whoever receives a copyleft, may be permitted to reproduce, adapt, distribute the work of the owner as long as the resulting copies of the work attribute the owner and the Copyleft owner does not make any derivative work or any other acts as subject to the Copyleft scheme.

While there are a plethora of such new laws and frameworks that keep coming up to strengthen copyright protection of a cinematograph film or music, in parallel the film industry should also instil strict codes of rules and regulations within their own set of unions in order to ensure that the owner's works are not plagiarized. While the laws around cinematograph films can preserve the rights of the owners, it is imperative that strong systems are put in place during the pre and post production work in order to ensure that plagiarism by people within the industry is reduced. While this is in progress, the film industry should also take measures to inform the public about the menace of piracy. They should educate people on how piracy is not just about an owner losing what is rightfully his, but also about the fact that piracy plays a very huge role in the growth of black economy and this information should reach the public across economic classes and town classes.

The whole system of copyright protection of a cinematograph film should involve an amalgamation of strong public education and awareness, besides strong sets of rules and regulations within the industry. Better implementation of laws with regard to infringement of copyright and strong awareness of the various frameworks of copyright protection would go a long way in preventing piracy and plagiarism.