Infringement of Copyright under Copyright Act, 1957

Infringement of Copyright under Copyright Act, 1957

Abstract: Copyright is an exclusive right that is enjoyed by the owner who has produced literary, musical, artistic, dramatic, cinematographic or any creative content related work. The arena of copyright also covers the field of publications. This paper is focused on the true meaning of copyright followed by the transgression and the violation leading to the wrong. The paper then follows a path and showcases an analogy of the case YRF v Sri Sai Ganesh Productions.[1]

Introduction

In the breakdown of the terminology of the Intellectual Property Rights, copyright occupies a vast domain and protects the original creator of the work. The creation can vary from papers to poetic works, inclusive of filmography and all sorts of content that involves arts directly. But, when one talks of the encroachment, the issue of the violence stand black & white where copying becomes punishable and laws are in first priority to protect the artist and its creation(s). Being inspired by a work or a piece of art should have a distinctive line from actually copying down the original work and the inspiration should also be followed by a proper reproduction license.

Copyright is a kind of intellectual property that protects the original and creative work of an artist, the registration of new creation by artists fall under the tab of copyright. The exclusive rights of making copies, distribution, production & reproduction and selling of the work are in the exclusive hands of the artist. The absolute right is either exercised by him or the person to whom he has given authority to use that particular work. No other person can use that copyright or else, the latter action would stand as an infringement of the artist’s original work, one has to seek permission from the creator to avoid a breach of copyright law. The Berne convention[2] is the oldest international treaty in the field of copyright. The main aim of the convention is the protection of literary and artistic works of the creators. To overcome the effect of violation of the rights of the original copyright holder, a stringent enactment is necessary. Copyright laws protect the original material of creators from unauthorized use. For the protection, the work must be in a tangible form, that is; before the disclosure amongst the public, the creator must his work into physical form. Followed by the further violation, one shall be subject to provisions of law.

Copyright Infringement

At times when the situations and table turn and the artist or the owner feels that their work is being used without their consent, it amounts to the act of infringement of their copyright work. The transgression can be both, either intentional or unintentional marking the way that the owner was not in the credits of the later work. Following the aforesaid, there are certain facts, that does not fall under the tab of a felony and they can be activities like using the copyrighted work for the purpose of research of study or even for revision of the work. The owner cannot claim for the act of infringement if the copied work is for the purpose of fair use and there is a substantial difference between the original and the copied work that does not make an improper appropriation. The burden of proof[3] shall also lie on the owner itself.

YRF v Sri Sai Ganesh Productions[4]
Facts of the case:

A copyright infringement suit was filed against Sri Sai Ganesh Productions & Ors by Yash Raj Films Pvt Ltd on the grounds that it blatantly copied the movie Band Baja Baarat produced under the YRF banner and producing Jabardasht which showcased substantial and material similarities in terms of theme, concept, plot, character, sketches, story, script, form and expression amongst other things. The question that stood before the court was whether copyright can subsist in a cinematography film independent of the underlying works that it is comprised of. And would the expression to ‘make a copy of the film’ mean making a physical copy of the film only and between the two films is there a substantial and material similarity or not.

Judgement held:

J. Manmohan Singh

The court while determining the first issue relied on the judgement handed down by the Delhi High Court in the case of MRF Limited v. Metro Tyres Ltd[5], in which the court held that copyright exists in the ‘cinematographic film’ independent from other underlying works that come together to constitute it and that there is a requirement of originality to exist in ‘cinematographic films’ which can be read into from Section 13(1)(b)[6]of the Copyright Act, 1957 through Sections 13(3)(a)[7]and Section 14(d)[8] of the said Act even though it has not been explicitly mentioned.

The court while determining the second issue held that the expression ‘to make a copy of the film’ provided in Section 14(d)(i)[9]of the said Act does not simply mean creating a physical copy of the film by process of duplication.

Furthermore, as the films are protected just like original works, the court extended the test of originality set out in the case of R.G Anand v. Deluxe Films[10] to distinguish between the two films on the basis of ‘substance, foundation and kernel’ and understand the viewpoint of an average moviegoer as to whether they would have an unmistakable impression that one work was a copy of the other. In the instant case, the court found that the defendants had blatantly copied the fundamental, essential and distinctive features of the plaintiff’s film.

Analysis of the case:

Starting with the Constitutional mandate that prevails in the country with backed by fundamental rights makes one, privilege enough to carry any kind of trade or business that can be claimed for the equal protection under the law. The Court in the above case escorted into the true sense of the cinematographic work that it shall not infringe any of the underlying works, namely, a literary, dramatic, musical or artistic work, but the lack of originality does because it infringes another cinematograph film. In other words, a film must not be a copy of any other work, including any other film.[11]

Leaning on to the factor, to make a copy of the film ‟ does not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film over the view either on the whole or essentially, primarily or structured materially resembles or even for that matter reproduces the original film, the latter will come under the scope of “copy”. The ambiguity regarding the “copying of the film” was in the face in many cases since the term copy was not defined in the Act and presumed to have a wider connotation.

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Accordingly, the blatant copying of fundamental or essential or for that matter even distinctive features of the plaintiff’s advertisement on purpose would amount to copyright infringement as it was necessary to have a breakdown of narrow terminology of ‘copy’. Henceforth, the Court also compared “the substance and the foundation of the two works being considered in a plate and whether one can “by and large a copy” of the other and whether an average viewer would get a well-defined or clear cut impression that one work was a copy of the other.”

Into the analogy, one will bring to question the “delay and laches” that was seen in the above case. The delay of 6 years led to the loss of the plaintiff wherein contrary to the movie JABARDASTH was a box office hit because of the original work of BAND BAJA BAARAAT. The court held its view on the essentials of the cinematography gives a boost to the content creators as the Court clarifies the physical copy of any film as well as the ideology

of the filmography both are protected under the Act which earlier was unclear in the Section 13 of Copyright Act, 1957.

The school of thought that the Court supported was of giving Section 14[12] of The Copyright Act’ 1957 a much broader meaning when read as the cinematography is held beyond just the authorship and mainstream creativity. The Court chose not to support the “Doctrine of physical copy” and gave the producer the protection while arguing beyond the exact copy and holding up the view of “substantial copy”.

Conclusion

The Copyright Act’ 1957 protects the composition of the cinematographic film. It also protects the composite cinematograph work that is produced in collaboration with many talents. Therefore the producer of a cinematograph film can claim the right of ownership over the film and has the sole right to exercise his entitlement and in cases of further non-consensual reproduction, there will be separated violation upon the artist and his work.

Infringement of copyright even though has a private dimension due to its effectiveness over property rights of an individual, the question of national and public interest also stands upright when violated. Therefore, the particular characteristic makes the judiciary under the obligatory lights in order to implement necessary laws and provide one with the necessary grievances. The important issue that was examined in this case relates to the ownership of the rights over a cinematographic film.

The Copyright being an exclusive right on the creator for their original artistic or literary work is granted a legal right to use, distribute, reproduce, public performance and also to sell its work solely. Copyright law evolved and expanded over the centuries which include a new method of storage and transmission. The main purpose of the copyright is to promote creativity and fair trade which would contribute to the economic and social development of the country. Protection of the interest of creators not only satisfies them but also encourage them to come up with new creative ideas. One can use the work of creator after accessing the permission of the creator. If someone violates the copyrighted work of the creator, then he shall be liable for civil and criminal liabilities. The case further breaks down and throws light on several other factors like the copyright holder shall have the absolute control and hold over the original creation by themselves and complete control over the adaptation and reproduction of its work as well.

Also Read: Geographical Indications of Goods (Registration and Protection) Act, 1999


[1] CS(COMM) 1329/2016 Delhi HC 2019

[2] international agreement governing copyright in order to protect Literary and Artistic Works, signed in Switzerland, in 1886.

[3] Section 53 of the Copyright Act

[4] https://indiankanoon.org/doc/175297328/

[5] CS (COMM) 753/2017.

[6] Section13 Works in which copyright subsists. — (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,

(b) cinematograph films

[7] Section 13(3) Copyright shall not subsist—

(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work

[8] Section 14(d) in the case of a cinematograph film, —

  • to make a copy of the film, including—
    • a photograph of any image forming part thereof; or
    • storing of it in any medium by electronic or other means;
  • to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;
  • to communicate the film to the public;

[9] Section 14 For the purposes of this 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 (d) in the case of a cinematograph film,—

  • to make a copy of the film, including –
    • a photograph of any image forming part thereof; or
    • storing of it in any medium by electronic or other means

[10] (1978) 4 SCC 118

[11] Section 13(3)(a) of Copyright Act, 1957

[12] Section 14 in the Copyright Act, 1957. Meaning of copyright. —For the purposes of this 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: —

(d) in the case of a cinematograph film, —

  • to make a copy of the film including a photograph of any image forming part thereof;
  • 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;
  • to communicate the film to the public;

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