Copyright in films: The law revisited

In a recently reported decision [Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah] a Division Bench of the Calcutta High Court has revisited the law relating to subsistence of copyright in films. The Division Bench was examining the validity of the order passed by the Single Judge who had granted an ad-interim order of stopping exhibition of a Bengali film titled as 'Poran Jaye Joliya Rae' being of the view that it violated the copyright of Hindi movie 'Namaste London'. 

The Division Bench, revisiting the law relating to copyrights in movies/films, approved the reasoning of the Single Judge and explained the concepts underlying therein in the following terms;

A cinematography film is a homogenous material. It is a collection or collage or ensemble of various works like story, screenplay, dialogue, sound track, video images, lyrics etc. Each of these works may also enjoy copyright protection. By operation of law or by contract or assignment the producer of the film may be vested copyrights in the above works. For example, the producer may employ a story-writer or a screenplay writer or a singer under a contract of employment. In that case the employer, subject to contract, is the first owner of the copyright. Otherwise, the author of the work may retain his individual copyright. (See Section 17 of the Copyright Act) Now, when all these works are put together and a cinematography film is made, a new copyright over the film is vested in the maker of the film or its producer.

When the film as a whole is exhibited the individual owners of copyright in works who have permitted the film to be made cannot claim copyright but if a part of the film is segregated and the individual work is culled out and exhibited then the individual owner can assert his copyright. Now, suppose the producer of the film without taking permission of the owners of the copyrighted works exhibits the film, the film may not have any copyright at all as a substantial part of the film in infringement of other work or works. (Section 13(3)(a) of the Copyright Act.) The authority for the aforesaid legal position with regard to copyright in cinematography film is to be found in the decision of the Hon'ble Supreme Court in Indian Performing Right Society Ltd. vs. Eastern India Motion Picture Association & Ors., reported in AIR 1977 SC 1443. However, not each and every work is entitled to copyright protection. Copyright protection is extended to original literary, dramatic, musical and artistic works; cinematograph films and sound recording (Sec. 13(1) (a), (b) & (c) of the Copyright Act). In order to claim copyright there must be some originality in the work. The author of a work may obtain raw materials for the work from any or many sources but will only be entitled to copyright if these raw materials are converted, by use of his labour skill, capital and intelligence to create another material or work which is something different from the raw materials and has an element of novelty. (See Macmillan Company Limited vs. K.J. Cooper, reported in AIR 1924 PC 75.) 

The next legal issue which has to be considered is the meaning to be ascribed to the word "copy". Does copy mean (a) a carbon copy or an exact replica of the original? or (b) a substantial replica of the original or a substantial replica of a part of the original or (c) a substantial similarity of the copied work with the original work is in the both works viewed by viewer of ordinary prudence. 

Where there is an alleged substantial similarity in the film taken as a whole with another film, in the opinion of the said viewer there is infringement of the copyright in the film. A part of a film,  e.g. story and screenplay may similarly enjoy copyright. A narrow meaning of the word "copy" is an apposite and should never be given. We are prima facie of the view that the two Single Bench decisions of Bombay High Court referred to above and the Chancery Bench decision also referred to above do not describe the law properly. We do not think that the authorities discussed above specially in the cases of Prior vs. Landsdowne Press (Supra) and R.G. Anand vs. M/s. Delux Films (Supra) together with the Division Bench decision and the Australian decision in the case of Zeccola & Ors. vs. Universal City (Supra) also referred to above support this view. 

The copyright Act as a whole is to be appreciated. It is true that Section.14 (d) of the Act states that infringement of copyright of a film would take place by its copying. That is, in our opinion,  only one type of infringement where the physical film or any electronic form of it is 'carbon copied or replicated'. It covers a case where the whole film or a part of it is stolen and exhibited and situations analogous thereto. Infringement has other elements, which we have discussed above. In that context 'copy' has to be given a broad meaning, as held by the Supreme Court in R.G. Anand's case (supra). We have made a scene by scene comparison of the two films and we prima facie hold that the Bengali film is substantially if not a verbatim copy of the Hindi film as a whole. We have also gone through the story of Purab or Paschim and prima facie hold that there is substantial innovation in the story of Namastey London. So, prima facie there is infringement of its story and screenplay in the Bengali film. We have gone through the various agreements or  assignments and re-transfer and are prima facie satisfied that the respondent/plaintiff is a tenant-in-common of the copyright of the film and as such is competent to file the suit. (see Cescinsky vs. George Routledge & Sons, Ltd. (1916)2 K.B. 325 and Cala Homes (South) Ltd. & Ors., vs. Alfred McAlpine Homes East Ltd., 1995 FSR 818).

Further, we are prima facie satisfied that only the distribution rights of the film were transferred to Eros because sub distribution agreements have been entered into by Eros. Prima facie there is nothing to suggest that copyright and other analogous rights as a whole in the film had been transferred to Eros. We are prima facie satisfied that at the ad interim stage, a learned judge is entitled to view a film, exclusively, in a copyright matter, and to an impression whether there is infringement and absence of the parties during such viewing should not vitiate the finding when other materials together with the impression carried by the learned judge on viewing of the film have also been taken into account to arrive at the ultimate prima facie finding. (See Sabapathi Pathan vs. Perumal Padayachi & Anr., (supra). In support of the contrary view, learned counsel for the appellant/defendant cited the decisions in the cases of Raj Chandra Banik & Ors. vs. Iswar Chandra Banik & Ors., reported in AIR 1925 Cal 170 and the case of Manindra Kumar Rai vs. Paresh Chandra Dey, reported in AIR 1971 Assam 127 may be true when a Judge makes an inspection during the time of hearing of the suit.

Have a look at the decision.