FIRST COPYRIGHT INFRINGEMENT CASE ON CINEMATOGRAPHIC FILM IN INDIA
The Indian Copyright Laws witnessed a momentous decision of the Apex Court in R. G. Anand v. Deluxe Films (1978). The Supreme Court of India well-defined the word “Copy” in context to the Cinematographic Films along with the concepts like copyright infringement and idea expression dichotomy [1978 AIR 1613].
The Appellant, R. G. Anand was a playwright, dramatist and producer of stage plays. The appellant had written and, produced a number of plays including a play called ‘Hum Hindustani’ in 1953 which received immense popularity. The Respondent, Mr. Mohan Sehgal approached the Appellant and expressed his interest to make a film based on the said play. The Respondent met the Appellant and discussed the entire play. Further in May 1955, the Respondent, Mr. Mohan Sehgal announced his upcoming film titled ‘New Delhi’. When the Appellant came to know about this, believed that the film is based on his play. But the Respondent assured that the story is different from that of the play ‘Hum Hundustani’. The film ‘New Delhi’ was released in 1956 and the plaintiff after watching the movie was of the opinion that it is completely based on the story of his play and consequently filed a suit against the Respondent for alleged infringement of Copyrights of the play in a film. The trial court ruled out in favour the Respondent holding that although the Appellant was the owner of the copyright in ‘Hum Hindustani’, there was no violation of copyright of the appellant. The Decision was challenged before the Division Bench of the High court which confirmed the findings of the trial court. The Appellant preferred an appeal and the case finally travelled before the Supreme Court of India.
- Section 2 (h) of the Copyright Act, 1957 defines “dramatic work” – includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. [A play is a dramatic work covered under this provision.]
- Section 2 (a) of the Copyright Act, 1957 provides for meaning of “Adaptions”
- in relation to a dramatic work, the conversion of the work into a non-dramatic work;
- 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;
- 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;
- in relation to a musical work, any arrangement or transcription of the work;
- in relation to any work, any use of such work involving its re-arrangement or alteration
[In a case where a movie is an adaption (Sec 2(a) of a play Section 14 (a) (i) shall apply which further shall be an infringement under Section 51 unless excluded by Section 52.
- Section 13 of the Copyright Act, 1957 provides for Copyright protection shall subsist in Original – Literary Works, Dramatic Works, Musical Works, Artistic Works, Cinematograph Films and Sound Recordings.
‘Works’ are obligated to be in its ‘Original’ form in order to claim copyright over the same. Subject matter of copyright protection subsists in original works of fixed tangible medium of expression from which they can be perceived or communicated. Further there is no copyright in ideas procedure, process, concept or discovery in any work.
- Section 14 (1) (a) of the Copyright Act, 1957 provides – “Meaning of Copyright”: For the purposes of this Act, “copyright” means the exclusive right, by virtue of and subject to the provisions of, this Act, ——
- in the case of a literary, dramatic or musical work, to do and authorize the doing of any of the following acts, namely: –
- to reproduce the work in any material form;
- to publish the work;
- to perform the work in public;
- to produce, reproduce, perform or publish any translation of the work;
- to communicate the work by radio-diffusion or to communicate to the public by a loud-speaker or any other similar instrument the radio-diffusion of the work;
- to make any adaptation of the work;
- to do in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in clauses (i) to (vi);
- Section 51 (a) of the Copyright Act, 1957 provides “When copyright infringed”
Copyright in a work shall be deemed to be infringed-
- when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
- does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
- permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright;
- There was no decided case of the Supreme Court of India on this issue at that point of time.
- The Parliament had not made any law governing copyright infringement at the time when the cause of action arose and hence the courts in the absence of any law relied on the old law passed by the British Parliament, namely, the Copyright Act of 1911.
- British India adopted the Copyright Act, 1911 in 1914 as the Indian Copyright Act, 1914 and thus was the born the first Copyright Act of the Indian soil.
- This can be regarded as the first case of Copyright Infringement in films.
Section 1 (2) (d) Of The Copyright Act, 1911 provides for “Copyright” For the purposes of this Act, “copyright” means the right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right, —
(d) in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematographic film, or other contrivance by means of which the work may be mechanically performed or delivered, and to authorise any such acts as aforesaid.
Section 2 (1) Of The Copyright Act, 1911 provides for “Infringement of Copyright” defines that copyright in a work shall be deemed to be infringed by any person who without the consent of the owner of the copyright, does anything, the sole right to do which is by this Act conferred on the owner of the copyright.
The Supreme Court was of the view that, despite some similarities, the movie did not infringe the play’s copyright because there were substantial dissimilarities between the two. The film’s plot rests on provincialism which is a universal idea. And the differences overshadow the similarities between the play and the film. Further, identical coincidences cannot be called copyright infringement. There are certain indisputable similarities but held that courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.” Further, “where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence”. When the sources of two expressions are common, similarities are bound to occur in them. Further, the court sets out one of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. The Court came to the conclusion that the number of similarities by themselves are not sufficient to raise an inference of colourable imitation. The similarities are trivial and touch insignificant points and do not appear to be of substantial nature. The appellant has failed to prove that the defendants committed colourable imitation of the play. In other words, in order to be actionable, the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of infringement. Thus there no infringement of a copyright in this case.
A landmark judgement which is referred even today , whenever any infringement matter is filed.
Rishab H Vakaria , Practicing Advocate in Bombay High Court & Associate Partner in
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