Cinematographic Film ….
Once the literary author completes his writing work , one of the important derivative exclusive right that emerges is the “Cinematographic film” right as per Section 14 (a)(iv) of the Copyright Act 1957, which exclusively belongs first to the said literary author.
For explanation purpose we will be covering the exclusive right “Cinematographic Film” in three parts. First LW 1.11 , LW 1.12 & LW 1.13.
This article LW 1.11 – is on the assumption that after completing the literary writing , the author is not parting with the derivative work “Cinematographic film rights” to anyone . Please read carefully that as per Section 14(a)(iv) the Cinematographic Film right , first exclusively belongs to the literary author and then later it is assigned to the film producer under assignment agreement or on commissioned work under contract FOR service.
LW : 1.12 – will be on the assumption that once the author finishes his literary writing , following options are available to the author ;
- either the author will produce the film himself or
- the author will assign his literary work to the film producer to produce the film and generally it’s a practice that after completing the writing part, the author get it registered with the Film writers Association situated in Mumbai and then he assigns to the film producer or
– the author may sign for a commissioned work on “work made FOR hire basis” with the film producer to incorporate his literary work in the film and on completion the author assigns everything to the said producer . The important point that to be understood here is that whatever may be the situation, till this stage the author has assigned the “Cinematographic right” to the film producer for producing the “MASTER” of the film ( as per film fraternity parlance “Negative rights”) Further please note carefully that once the MASTER is developed then only Section 14(d) of Copyright Act 1957 comes to play.
LW 1.13 will cover the provision of Section 14(d). Operation of Section 14(d) is an independent exclusive right in the case of “cinematographic film” given to the film producers . Please note this provision is to make “the copy of the film” by the film producer along with the right to sell, or to give in commercial rental and an independent exclusive right to “communicate the film to the public”.
Notwithstanding the theories on Copyright doctrines, division into three different part is for the basic understanding how legal provisions operate step by step. Coming back to the present article LW 1.11 , technically an author if he does not do any commercial transaction with the publisher or film producer after finishing his literary writing , by statute author has been given the exclusive right of cinematographic film which belongs first to him (emphasised) pursuant to Section 14 (a)(iv). Please remember this is the starting point from where the Cinematographic film rights germinate. Therefore , the Cinematographic exclusive rights are first with the literary author.
That means when a novel , lyrics or film story is written , the author has an option whether to part with the cinematographic rights to the publisher / producer or not and in this article the author chooses to retain with him and he is not utilising the copyright IPR with any publisher or producer.
Change in definition(s) that has taken place from 1957 onwards under the Copyright Act 1957 in :
Definition(s) of Cinematographic film ;
- From 1957 to 1994.
Section 2 (f) – “cinematographic film” includes the sound track , if any , and “Cinematograph” shall be construed as including any work produced by any process analogous to cinematography.
- Substituted by Act 38 of 1994 w.e.f 10 May 1995 to 20 June 2012.
Section 2 (f) “Cinematographic film” means any work of visual recording on any medium produced through the 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 analogous to cinematography including video films;
- Amendment by Act 27 of 2012 with effect from 21 June 2012.
The word “on any medium produced through a process from which a moving image may be produced by any means” omitted in 2012 amendment and the new definition is as here under ;
Section 2(f) – means any work of visual recording [….] 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;
Visual recording Definition inserted in Copyright Amendment of 2012 with effect from 21 June 2012
Section 2 (xxa) “visual recording” means the recording in any medium , by any method including the storing of it by any electronic means , of moving images or of the representations thereof, from which they can be perceived , reproduced or communicated by any method.
Definition of Author in relation to a Cinematographic film ;
– From 1957 to 1994 , Author in relation to a Cinematographic film, the owner of the film at the time of its completion;
– From 10 May 1995 till date – Definition of Author in relation to a Cinematographic Film , the Producer .
Definition of Producer :
– From 1957 to 1994 there was no definition of Producer under the copyright Act 1957.
– In 1994 amendment w.e.f 10.5.1995 – definition of Producer got inserted and till date there no change in this . As per Section 2(uu) the definition given is :
“Producer” in relation to a Cinematographic film , means a person who takes the initiative and responsibility for making the work. (It’s pretty dicy in the present scenario (particularly after the Copyright Amendment of 2012 where royalty to be shared between “authors” and “owners”) to establish who has initiated the work and who has taken the responsibility for making the Cinematographic film ! because investment is not the key factor as per the Definition and ditto this is for sound recording producers to establish the authorship!) Surprisingly , no litigation has come up so far in any courts in India or any interim order passed on this issue as per our research goes).
Hence, as per Cinematographic film is concerned , in sequential form first the “cinematographic exclusive rights” belongs to author ( explained in this Article 1.11 ) , second the author assigns to make the Master or negative rights of the film ( LW 1.12) which will be our next article and then in third part , Section 14(d) comes into operation which will subsequently published as ( LW 1.13).
………. To be continued LW 1.12