COPYRIGHT MADE EASY
CME [Student Series]
LW 1-13 “Cinematographic Film”.
In previous article LW 1-12 , primarily the explanation covered on the subject that – the Cinematographic film exclusive right is first with the author (emphasised herein the Literary work) pursuant to Section 14(1)(a)(iv) and further whoever produces the film ( author himself or he authorises anyone to incorporate his literary work in cinematographic film ) then on completion of Cinematographic film work (derivative right) , first and foremost “Master” comes into existence as per section 14(1)(iv) ) [ in Film fraternity parlance “Negative rights” ] and from here the connect is to make “COPY” of the Cinematographic film as provided under Section 14(d) of Copyright Act 1957.
Very crucial point to understand in this curve is that because of the demarcation between Section 14(1)(iv) on cinematographic films wherein “Master” comes into existence and Section 14(d) which provides the exclusive right to make copies of the Cinematographic film , the “utilisation in any form” can be dissected distinctly and accordingly the equal sharing provision as given under section 17 (proviso) of the copyright Act can be implemented.
Elaborate explanation on collection mechanism , justification of copyright Societies, distribution method of royalties etc will be addressed in depth separately.
However , an instance on how the “utilisation in any form” as per the proviso of section 17 of Copyright Act 1957 operates and its equal sharing between the assignor and assignee thereof being enumerated herein.
Suppose a book author or a story writer assigns the story right in all languages to a Tamil film producer to be incorporated in his Tamil Cinematographic film . The said producer makes his first film in Tamil and becomes a major hit. After the Tamil film release , the said film producer sells the “remake right” to a Hindi film producer for a “Y” amount.
In the referred transaction, basically the Tamil film producer has assigned the literary work to the Hindi film producer and it’s being utilised in a different form pursuant to the provisions of Section 17 (proviso). In this scenario the consideration received by the Tamil film producer from the Hindi film producer to be shared with the original story writer ( the Tamil author ) . As such our research goes nothing is shared by any film producers (may be with some exception which we are not sure) and surprisingly no court cases filed anywhere in India even for any ad-interim injunctions. Each year , thousands of films remake rights are acquired in the language matrix of the country but hardly any instances can be found wherein author(s) have been paid equally in-spite of strong Copyright legislation in place !!
Nevertheless, coming back to the article, , pursuant to Section 14(1)(d) , the critical exclusive right to the Copyright owner of the Cinematographic film is the right to “make copies of the work” and without this exclusive right there cannot be any publishing business.
In common parlance making a copy of something usually means making a literal copy like copying some document with a photocopy machine, copying a song to the disc or USB etc. However, meaning of Copy in Copyright law is much wider. A “copy” of Work may be any object into which protected elements of copyrighted work have been copied. So the exclusive right as given under section 14(d) to make copies is not limited to making exact copies of the work rather it’s expands to copying protected elements of the work. Please note that protected elements of a work go well beyond the exact form of the copyrighted work. In litigations the issue which generally crops up is whether the defendant took protected expression or unprotected elements (such as ideas, no original elements etc). Notwithstanding , on case to case basis the opposite lawyer can argue on fair use doctrine or de-minimis infringement for protection.
Reading section 14 (1) in entirety, subject to the provisions of the Act , the owner can do himself or can authorise the doing any of the action in the case of Cinematographic film ( the derivative right) ;
– to make a copy of the film including a photograph of any image forming part thereof or storing of it in a medium by electronic or other means. This provision is inserted in the Copyright Amendment 2012.
– to sell or give on commercial rental or offer for sale or for such rental, any copy of the film ;
– to sell or to give on hire, or ofer for sale or hire any copy of the film.
– to communicate the film to the public.
Enumerated herein below the amendment(s) that have taken place in Section 14(d) of the Copyright Act 1957 in last around 60 years . Especially in Copyright litigations, analysis of each section(s) for each year is crucial on case to case basis because the whole interpretation is linked to the definitions and in turn the scope of operations for different work(s) under the copyright statute.
1) The copyright Act, 1957
Meaning of copyright : 14 (1) For the purpose of this Act, “copyright” means the exclusive right, by virtue of and subject to the provisions of, this Act;
(iii) (c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely :-
(i) to make a copy of the film;
(ii) to cause the film, in so far as it consists of visual images, to be seen in public and , in so far as it consists of sounds, to be heard in public;
(iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound tract;
(iv) to communicate the film by radio – diffusion.
2) Copyright Amendment 1983 ( w.e.f. 9th August, 1984)
Meaning of copyright: 14 (1) For the purpose of this Act, “copyright” means the exclusive right, by virtue of and subject to the provisions of, this Act;
(c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts, namely:
(i) to make a copy of the film;
(ii) to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public;
(iii) to make any records embodying the recording in any part of the sound track associated with the film by utilising such sound track;
(iv) to communicated the film by [broadcast]
3) Copyright Amendment 1994 ( w.e.f.10 May, 1995)
Meaning of copyright: 14 (1) For the purpose of this Act, “copyright” means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(d) in the case of a cinematograph film –
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
4) Copyright Amendment 2012.. ( w.e.f 21st June, 2012)
Meaning of copyright: 14 (1) For the purpose of this Act, “copyright” means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(d) in the case of cinematograph film;
(i) to make a copy of the film, including –
(A) a photograph of any image forming part thereof ; or
(B) storing of it in any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasion;
(iii) to communicate the film to the public;
