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.

Suspension of newspaper violates freedom of press: ECHR

In a recent decision in the case of Turgey and Others v. Turkey, the European Court of Human Rights (ECHR) has declared that suspension of publication of two newspapers by Turkey constituted violation of freedom of press. The suspension was carried out in view of a local court order on account of various news reports and articles published in the newspapers wherein "the impugned publications were mainly deemed to be propaganda in favour of a terrorist organisation". 

The ECHR followed its earlier ruling in the case of Ürper and Others v. Turkey as being squarely applicable and determinative of the law on the issue and even went on to grant damages to the newspapers as compensation for the violation. Have a look at the decision.

Journalists cannot protect confidential sources: Canadian Supreme Court

In a judgment delivered yesterday entitled R. v. National Post, the Supreme Court of Canada by majority had declared that while "courts should strive to uphold the special position of the media and protect the media’s secret sources where such protection is in the public interest", such immunity available with the journalist to keep his source secret is not absolute, and the court can direct otherwise in the interest of broader public interest "even if the end result proves to be information that may lead to the identification of the secret source".

The majority opinion, notes the factual circumstances leading to this interpretation of law in the following terms;

This dispute is a controversy of undoubted public importance. It involves an attempt by a person or persons unknown to dupe the National Post into publishing an allegedly forged bank document which, on its face, implicated the then Prime Minister of Canada, Jean Chrétien, in a serious financial conflict of interest. The courts below concluded that the police possess reasonable and probable grounds to believe that the inculpatory entries on the “leaked” document are false. The document, if authentic, would have suggested that at the same time the Prime Minister was said to be exerting influence on the federal Business Development Bank of Canada (“BDBC”) to grant a $615,000 loan to the Auberge Grand-Mère, a private business in his riding, the Auberge Grand-Mère allegedly owed the Chrétien family investment company $23,040. Unless the Auberge Grand-Mère could be saved from insolvency, the story went, the debt would likely go unpaid. The Prime Minister’s private financial interest, on this theory of events, conflicted with his public duty. Some in the media referred to cluster of events around the loan controversy as “Shawinigate”.

In these circumstances, being required to allow access to the journalist's source in order to ensure that investigation was conducted properly and the alarming allegations were dealt with seriously and in full face of all possible evidence available, the majority opinion clarified the law that the State does not violate the freedom of the press guaranteed by the Canadian Charter of Rights and Freedoms when it compels a journalist to produce information that could identify the source.

Some of the interesting observations made in regard to the freedom of expression and press and the competing interests of higher norm can be noted as under;

[26] The investigation and punishment of crime is vital in a society based on the rule of law but so is the freedom of the press and other media of communication. The general principle that the public has the right to every person’s evidence is not absolute. Narrow exceptions have been recognized as necessary to further precisely defined and overriding public interests. Thus the identity of the police informant is shielded from an accused. A civil litigant has no right to know what the opposing party privately confided to its lawyer. Spouses cannot generally be compelled to testify against each other. Information pertaining to national security and Cabinet confidences may be withheld on the basis of what is called public interest immunity.

[28] It is well established that freedom of expression protects readers and listeners as well as writers and speakers. It is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistleblower must be located. The public has an interest in effective law enforcement. The public also has an interest in being informed about matters of importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. ...

[30] If a reporter, usually in consultation with an editor, gives an assurance of confidentiality, professional journalistic ethics understandably command that the promise be kept. The courts have long accepted the desirability of avoiding where possible putting a journalist in the position of breaking a promise of confidentiality or being held in contempt of court. See, e.g. St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 230 C.C.C. (3d) 199. Nevertheless, most journalistic codes of ethics recognize that the promise of confidentiality cannot be absolute, see e.g. the Canadian Association of Journalists’ Guidelines for Investigative Journalism regarding “[u]se of confidential and anonymous sources”.

[63] In a test of balancing the public interest in disclosure versus the public interest in confidentiality neither the journalist nor the secret source “owns” the privilege. Thus where a secret source decides for whatever reason to cast aside the cloak of anonymity the public interest no longer “sedulously fosters” the continuation of the confidential relationship in preference to openness and the search for the truth. In such a case the journalist would have no basis to seek to restrain the selfouting of the secret source. On the other hand, where a journalist decides that the confidentiality arrangement no longer binds (as for example, in this case, if Mr. McIntosh had concluded that the forged bank records had been provided by the source to mislead the National Post deliberately, and had thereby, in his view, forfeited its protection), the balance would again tilt in favour of disclosure. The role and function of the privilege is to facilitate the freedom of expression of the media and their readers and listeners. Where the journalist concludes that the relationship in a particular case should no longer be “sedulously” fostered, the substratum of the claimed privilege is eliminated. The public interest would no longer be served in the particular case by suppression of the identity, but of course in the event of such disclosure, the source might have some sort of private law claim for breach of contract or breach of confidence or other private common law cause of action. Such private law remedies are not before us in this appeal.

[90] The appellants claim that the assistance order turns the editor-in-chief into an “agent of the police” in the collection of evidence. This is overly dramatic. Editors, journalists and sources do not, by reason of the important roles they play, cease to be members of the community in which they live. The claim for privilege in this case is rejected The editor-in-chief, as every other member of the community, is required in the ordinary way to respect the law. From the media perspective assistance orders requiring the surrender of the document are surely preferable to a physical search of the media premises. In my view, the assistance order was reasonable within the meaning of s. 8 of the Charter.

Have a look at the decision.