COPYRIGHT
The Law & the utility

Video Piracy is the bane of our Film Industry, which is bleeding it dry, if not checked immediately. The producers have to irradicate the piracy by the root. The piracy started way back in early eighties with the advent of Video Cassettes. The piracy, in terms of law is infringement of Copyright law. To know our rights we must understand the law.

In order to understand the concept of Copyright in cinematographic films, it would be most appropriate to begin with an understanding of the very concept of the term Copyright itself.

An idea which takes birth in the mind when expressed in concrete terms coupled with labour, skill and capital expended in the creation of a work is entitled to protection under the Copyright law. The Copyright is a form of Intellectual Property.

The Copyright is the exclusive right to do or authorize the doing of certain acts in relation to:
1. literary, dramatic and musical works, not being computer programmes;
2. computer programmes;
3. artistic works;
4. cinematographic films ;and
5. sound recordings.

Precisely put, copyright is the right to copy or reproduce the work in which copyright subsists. The law does not allow one to appropriate to oneself the result of another’s labour, skill and capital . This is the basis and philosophy of the copyright law. The copyright is a creation of statute. There is no such thing as common law copyright.

The object of copyright law is to encourage authors, artists and composers to create works for the benefit of the public by rewarding them in return for the labour , skills and capital expended in creation of the work. The right so granted under the law is an exclusive right for a specified term.

On the expiry of the stipulated term in respect of which the monopoly (exclusive) right is granted, the work falls into public domain and is open to any member of the public to reproduce the same without permission of the author, composer, etc. as the case may be.

Aptly put, copyright is a negative right, the object being to protect the author of a work from unlawful reproduction by an exploitation of his work either without the author’s consent or license or otherwise exercising rights attached to the copyright in the work.

The rights conferred by the Copyright Act are economic rights which bring in economic benefits by way of royalty or a consideration which result from the exploitation of the work either by way of licensing or assignment of the rights in the work. The moral rights that an author of a work enjoys are the right of paternity, right of integrity. These rights have been granted statutory recognition under the enactment.

Importance of copyright
The need for protection of the copyright in a work has been felt both at the national and international level on account of widespread piracy infringement of copyright.

Technological progress has made copying a lot easier and added on to the already existent malady.

Hence, every nation felt the necessity for a law to govern copyright in its works.

As copyright is granted by the law of the country where the work is created , nations felt that it would be next to impossible to curb piracy of copyrighted work beyond its territorial boundaries unless attempts were made to meet the problem by joining other countries in their efforts to secure a minimum level of protection on a reciprocal basis for works originating in a member country in all other member countries of a convention without the need for any formality whatsoever. The Berne Convention for the Protection of Literary and Artistic Works,1971 and the Universal Copyright Convention, 1952 were the results of the concerted efforts. These are the two international conventions which govern the issue. Developed and developing countries the world over are members of either members of either one of both of the said conventions. India is a member of both the said conventions. In India the law that governs the issue is The Copyright Act, 1957.

‘Cinematographic films’ broadly defined by the Act ‘means any work of visual recording on any medium produced by 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’.

Originality
The enactment does not stipulate that the cinematographic film be original as a precondition which would otherwise apply to other works in which copyright subsists namely; literary, dramatic and musical. However, copyright will not subsist in a cinematographic film if a substantial part of it is a copy of another work .

Rights of an author of a cinematographic film
The enactment lays down that the following rights exclusively vests in an author namely;

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public.

The producer is the author of the copyrighted work in a cinematographic film and the right is vested for 60 years. The period of 60 years will commence from the next calendar year beginning from the 1st of January.

Infringement of copyright in a cinematographic film

Infringement of copyright takes place when a person without the consent / license of the author does any act which is violates the rights of the author. One commits an act of infringement of copyright in a cinematographic film when any of the following acts take place:
-one makes a copy of the film including a photograph of any image forming part thereof;

-one sells or give on hire , or offers for sale or hire any copy of a film , regardless of whether such a copy of the film has been sold or given on hire on an earlier occasion (s);
-communicate the work to the public;

-to permit for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the film;
- to make an infringing copy of the film for sale or hire or to sell or let for hire, or by way of trade display or offer for sale or hire an infringing copy ;
-to distribute infringing copies either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright; or
-to exhibit infringing copies to the public by way of trade ; or
-to import into India , any infringing copies of the work.

Copyright piracy may take various forms for instance, copying a film by videotaping it, communicating such videotaped film to the public, broadcasting the same by way of wireless means i.e. visual images, sounds, signs or by wire. Similarly, the producer of a film may use another work as the basis for his film by copying a substantial part/ portion of the work which would amount to a colourable imitation of another’s work. Instances may also arise where a person may make reprints of individual pictures from still films without the permission/ consent of the author of the copyrighted work.

Copyright in a work – a bundle of rights
Copyright is a bundle of rights. A producer when he embarks upon the task of producing a film will need a story, music for the film , lyrics for the song, an artistic work ,a sound track etc. He falls back on a story that is written by another which is a literary or in some instances on a dramatic work, an artistic work created by an artist ,the musical work and /or sound track created by a musician, the lyrics for a song written by a lyrist etc.

In such a situation, he cannot use the basis of another’s work without prior authorization of the said author of each of the said works . Once, the producer has obtained the necessary authorization from the author of the said work , then the author of the cinematographic work can make a film using the formers work by embodying the said work as part of the of the film. In that event, the latter would acquire a right to communicate the work to the public without securing any further permission from the former. The result would be that a separate right would come to vest in the author of the cinematographic work apart from the right of the author of the said work.

Performers Rights
By an amendment made to the enactment in the year 1994, the law makes provision for performers rights for the benefit of ceratin performers like dancers, musicians, actors, jugglers, acrobats, etc. the rights of a performer extends to the following acts;-
-make a sound recording or visual recording of the performance; or

- reproduce a sound recording or visual recording of the performance;
- broadcasts the performance ; or
- communicates the performance to the public otherwise than by broadcast.

Term of copyright granted to the Performer of a cinematographic film.
Copyright will vest in the producer for 25 years. The period of 25 years will commence from the next calendar year beginning from the 1st of January.

 

Issues that arises for consideration:
Technological progress has aggravated the already existent problem making piracy easier but difficult to control. Countries the world over have taken measures to check and contain copyright piracy. Indian law for instance, has provided for severe measures to check copyright piracy by empowering the enforcement agencies to enter the premises of the infringers and seize the infringing goods. Despite having such a stringent law, one still finds that copyright piracy is still on the rampant. Various reasons could best explain why the problem is so acute and has not been checked some of which are :

1) The lack of awareness of the rights by the author / owner of a work;
2) Despite the awareness of rights, one often finds that author / owner of such copyrighted work(s) tends to be laid back and tolerate copyright piracy by stating that it is an issue that cannot be done away with. While copyright piracy may continue to exist through times, as authors / owners of Copyrighted works, one should make every effort to curb the problem by resorting to the law to deal with the issue. If we cannot wipe out the problem totally, at least, we can send out the right signal to the public at large that as authors of the copyrighted works, we are not likely to tolerate theft , be it in any form and piracy is most certainly a theft whether indulge in by a big ,mediocre or a small business concern
3) We do have a responsibility to the next generation to be specific and to the society at large. The message that is to be sent out that theft is theft and not justifiable under any circumstance or by an person for that matter.
4) Further, there is also the issue of the loss of revenue to the author of the copyrighted works who has expended considerable labour, skills and capital in the creation of the work. This would serve to discourage the author himself and the creative world at large who would feel that the work so created by them will in no way receive the protection that it deserves from piracy. This in turn would lead to disillusionment on their part with the state of affairs which would hamper the growth of creative works.
5) Finally, one is to consider the loss of revenue by way of entertainment taxes, sale of audio cassettes, compact discs and loss of indirect taxes through copyright piracy.

In conclusion:
As a first step, there has to be a general awareness to be created of one’s rights and of the legal remedies that one can have recourse to in the event of copyright piracy.

One must also educate the masses that piracy is an offence and punishable under the law and in the event of their becoming aware of such instances of piracy, they may report the same to the authors of such works or to authorities like the cyber space crime cell at the Police Station . Hence, vigilance on the part of the individuals is a must.

One is to understand that the law is for the lay/ common man and one is to make use of the law to help deal with the issue.

It is often perceived that, when one approaches the enforcement agencies with information regarding infringement of copyright, the authorities often refuse to act on the information. This serves to defeat the very object of the copyright enactment. The reason often cited for non- action on the part of the enforcement agencies is on account of their inability to grasp the issue of copyright much less what copyright infringement stands for . Hence, what is required as a first step in the right direction is educating these agencies backed by hands on experience/training as to locating infringing goods. If we have to rid ourselves of the scourge that is eating into our very social fabric, then a concerted effort on every individuals part is a must.

Through concerted effort on every citizens part, let us feel that we have left no stone unturned in our effort to deal with the issue. Let every creative mind rest assured that his work will receive due protection under the law. This should be our goal Lets work towards achievement of it.

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