COPYRIGHT MADE EASY – [ Student Series ]
CME [Student Series] LW 1 – 10
Section 2(a) of Copyright Act 1957 defines “ADAPTATION” means ,:
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work (ii) in relation to a literary work or an artistic work , the conversion of the work into a dramatic work by way of performance in public or otherwise; (iii) in relation to a literary or dramatic work , any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper , magazine or similar periodical ; (iv) in relation to a musical work , any arrangement or transcription of the work and (v) in relation to any work, any use of such work involving its re-arrangement or alteration.
For this article we are focusing only the literary right of book authors, lyric writer and film story writer. From the above definition under the Indian Copyright law , it’s basically a change of format. Thus, if a third party makes an abridgement, musical arrangement, conversion, re-arrangement , alteration etc without the consent of the Copyright owner , the exclusive right to make derivative works is infringed. The exclusive right to prepare derivative works enables the copyright owner to exploit markets other than the one in which the work was first published. These derivative markets can often be more valuable than the market of first publication. Instance of adaptation (derivative) work is a novel written by an author who can earn greater returns if acquired by a film producer in which his film will be based and further screenplay is developed from the said novel accordingly. But the intriguing issue is that if significant additions are done with different treatment in the screenplays without the permissions of the legitimate copyright owner then what is the ground situation and how it can be distinguished ? Most of the cases that comes for ad-interim reliefs are of such nature only. Technically its an intricate knot , no answer from current provisions primary due to the reason because the spectrum of such adaptation cannot be bracketed within the definition under the Copyright Act 1957 and the definition given to “adaption” under Indian law is extremely narrow and limited . This limitation is the biggest grey area which has opened the platform for debate with divergent opinions among authors, owners and legal professionals.
Practically, Copyright doctrines cannot exist independent of Copyright law and finally the judgements will be pronounced as per the legislation of each country. For expanding the scope of “adaptation” :- Derivations and transformation should be properly defined. As per American Copyright law Section 103 of Title 17 of USC and 106 (2) covers the issue of infringement on derivative work and expanded the concept of “copying’ to cover much broader ground but that cannot be quoted in Indian Courts. Despite of having clear cut definitions , the United States are not free from legal disputes on Copyright subject, so one can imagine the complexity of legal interpretations that will come up in India in the absence of required definitions in Copyright Act 1957.
Nevertheless, it’s necessary to know the Copyright theory on “adaptations” how it functions particularly for understanding the fundamentals. Comprehensively under the Copyright laws three terms are examined minutely and they are – adaptations, derivations and transformations. All the three are distinct leaf though the tree is same but adaptations and derivations both belong to one branch and transformations belong to another branch of the same tree. Explained here- under further ;
– an adaptation is same as the original work although there may be change in the format.
– a derivation is based on the original work but it’s different because it incorporates an original contribution.
– a transformation which is completely new but it is based on the data contained in the original work.
Notwithstanding above, interpretation given under Section 2 of Copyright Act 1957 to be read in entirety. This is very important because lot of overlapping issues will emerge on reproduction right , translation right and adaptation which will depend on case to case basis and Honourable Courts have been given enormous power under the Copyright Act 1957 to decide on the facts of each case.
Therefore, the introductory part of Section 2 has to be read in conjunction with Interpretation and it starts with ” In this Act, unless the context otherwise requires” – what does it mean on legal standpoint and how it should be read with the definitions given.
Its well settled principle that where a definition under the statute is preceded by words ” Unless the context otherwise requires” NORMALLY the definition given in the section should be applied and given effect to BUT this normal rule may; however, be departed if there is something in the context to show that the definition should not be applied. This deviation to pronounce any judgement is an exception to the normal rule; if in the subject or context of a particular section it appears that there is something repugnant so that definition cannot be fitted in (even though defined), the Court is at the LIBERTY not to construe the word occurring in that section in the manner in which it has been defined , but to give its ordinary meaning or some other meaning opposite to the context or subject.
Adaptation right is infringed when third party makes an unauthorised derivative work in which pre-existing copyrighted work is recast, reformed or adapted without the permission of the Copyright owner. From above explanation of unless the context otherwise requires, its clear that in the interest of justice on each matter courts have immense power to give the judgements considering the facts of each case. Notwithstanding, the ultimate solution is to incorporate broad based and practical provisions in Copyright legislation in order to save the valuable time of the Honourable Courts.
However, for basic understanding and examination purpose;
- meaning of “adaptation” as defined under the Copyright Act is given,
- it’s clear that definition of adaptation given under Section 2(a) of Copyright Act 1957 is narrow and limited,
- derivative work and transformation in Copyright Act 1957 is not defined however courts have exemplary power to look into matter on case to case basis by applying three basic principles ( prime-facie case , irreparable injury, balance of convenience) for passing temporary injunctions as per Order 39 read with relevant rules under CPC.
- Provisions of Copyright theory provided in the USA or UK statute cannot be quoted in Indian jurisdiction.
- Most important, post the amendment of Copyright Act 2012 the contract entered between the literary authors and publishers / producers must have the clause of right of royalty that to be paid to authors on equal sharing which cannot be waived while utilisation in any form (adaptation right is inclusive in the bundle of rights) , else in the absence, the whole contract will become void. Proviso(s) of Section 18 & 19 of Copyright Act 1957.