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V.
ANALYSING THE LEGAL ENVIRONMENT
146
Preamble of the Cinematograph Act, 1952.
147 As per Section 2(dd) of the Cinematograph Act,
a "film" means a cinematograph film. As per Section 2(c) of the Act, 'cinematograph'
includes any apparatus for the representation of moving pictures or series
of pictures.
148 Section 3 of the Cinematograph Act.
149 Section 4 of the Cinematograph Act.
150 Under Section 5B of the Cinematograph Act,
the Censor Board may not certify the whole or any part of the film if
it (i) is against the interests of the sovereignty/integrity of India,
the security of the State, friendly relations with foreign States,public
order, decency or morality; (ii) involves defamation or contempt of court
or (iii) is likely to incite the commission of an offence.
151 Rule 26 of the Cinematograph (Certification) Rules,
1983.
152 Section 5C of the Cinematograph Act.
153 Section 33 of the Cinematograph Act.
154 Section 5E of the Cinematograph Act
155 Section 7 and 14 of the Cinematograph Act.
156 Section 7 of the Cinematograph Act
157 Section 7 of the Cinematograph Act.
158 “Imperilling the Prestige of the White Woman
Colonial Anxiety” By P. Arora in Visual Anthropology Review and Film Censorship
in British India. Vol. II No. 2 Fall 1995, pp.36-50. and Indian Popular
Cinema: A Narrative of Cultural Change. By K. Moti Gokulsing and Wimal
Dissanayake. Staffordshire, England: Trentham Books (1998)
159 http://nfdcindia.com/censorboard.htm
(As visited on March 25, 2002).
160 K. A. Abbas vs. The Union of India, AIR 1971
SC 481.
161 Pursuant to a major survey which showed that
most adults believe they should be allowed to make up their minds about
what they watch.; "Snip the scissor-happy censors", Times of India, January
1, 2001.
162 “India's National Film Policy” By M. Pendakur
in A Moran (Ed.) Film Policy. London: Routledge.
163 Section 13 of the Copyright Act, 1957
164 Sections 22 to 27 of the Copyright Act.
165 Sections 22 to 27 of the Copyright Act.
166 Section 2 of the Copyright Act.
167 Section 17(c) of the Copyright Act.
168 Section 17(b) of the Copyright Act.
169 Section 14 of the Copyright Act.
170 Sections 18 and 19 of the Copyright Act.
171 Sections 30 and 30A of the Copyright Act.
172 Section 14(a)(iv) of the Copyright Act.
173 As per Section 17(c) of the Copyright Act,
the copyright in the literary and musical work would vest in the employer,
i.e.the producer.
174 Section 5! of the Copyright Act.
175 Section 52(j) of the Copyright Act.
176 “Indian Composer sues rapper Dr. Dre”, http://news.bbc.co.uk/1/hi/entertainment/music/2383847.htm.
177 “Happy Lahiri”, Mid-Day, February 6, 2003.
178 Section 55 of the Copyright Act states that
the owner of Copyrights is entitled to all such remedies by way of injunction,
damages, accounts and otherwise.
179 Section 63 of the Copyright Act punishes infringement
actions with imprisonment of three years with a minimum imprisonment of
six months and a fine upto Rs. 200,000 with a minimum fine of Rs. 50,000.
Section 63A of the Copyright Act states that in case of second and subsequent
convictions the enhanced penalty shall be imprisonment for a term which
shall not be less than one year but which may extend to three years and
a fine upto Rs. 200,000 with a minimum fine of Rs. 100,000.
180
Section 2(q) of the Copyright Act.
181 Section 38(2) of the Copyright Act.
182 Section 38(4) of the Copyright Act.
183 Section 38(3) of the Copyright Act.
184 Ibid
185 Sections 33 to 36A of the Copyright Act.
186 A synchronization or "synch" right involves
the use of a recording of musical work in audio-visual form: for example
as part of a motion picture, television program, commercial announcement,
music video or other videotape. Often, the music is "synchronized" or
recorded in timed relation with the visual images. Synchronization rights
are licensed by the music publisher to the producer of the movie or program,
http://www.ascap.com/licensing/termsdefined.html
(As visited in January, 2003).
187 Nearly all Composers, Songwriters & Publishers
of Musical Works are Members of IPRS. These members amongst them control
nearly 97% of the total Indian Music. Thus, IPRS controls a wide repertoire
of Indian Musical Works and Foreign Musical Works belonging to other Societies.
http://www.indiavibes.com/iprs/members.htm
(As visited in January, 2003).
188 Section 2(v) of the Trade and Merchandise Marks Act,
1958 defines trade mark as follows: (v) "trade mark" means- (i) in relation
to Chapter X (other than section 81), a registered trade mark or a mark
used in relation to goods for the purpose of indicating or so as to indicate
a connection in the course of trade between the goods and some person
having the right as proprietor to use the mark; and (ii) in relation to
the other provisions of this Act, a mark used or proposed to be used in
relation to goods for the purpose of indicating or so as to indicate a
connection in course of trade between the goods and some person having
the right, either as proprietor or as registered user, to use the mark
whether with or without any indication of the identity of that person,
and includes a certification trade mark registered as such under the provisions
of Chapter VIII;
189 Article 19(1 )(a) of the Constitution of India,
1950.
190 http://nfdcindia.com/censorboard.htm
(As visited on March 25,2002).
191 Article 19(2) of the Constitution of India.
192 A defamatory statement is a statement that
is calculated to expose a person to hatred, contempt or ridicule, or to
injure him in his trade, business, profession, calling or office, or to
cause him to be shunned or avoided in society.
193 Law of Torts, Ratanlaland Dhirajlal (1997), 23rd
Edition, at p. 234.
194 Section 292 of the Indian Penal Code.
195 Section499and500ofthelndian Penal Code.
196 Section 501 and502 of the Indian Penal Code.
197 Section 2(c) of the Indecent Representation
of Women (Prohibition) Act, 1986.
198 Section 4(c) of the Indecent Representation
of Women (Prohibition) Act.
199 As per Section 6 of the Indecent Representation
of Women (Prohibition) Act, offences are made punishable with imprisonment
of either description for a term extending to two years and fine extending
to Rs. 20,000 on first conviction. Second and subsequent convictions attract
higher punishments.
200 Section 2(c)(xvii) of the IDBI Act.
201 http://www.indiaabroadonline.com/cinema/mav2001/rbi.shtml
(As visited in May, 2001).
202 Foreign Exchange Management (Transfer or issue
of Security by a Person Resident outside India) Regulations, 2000, Annexure
B, Item 8.
203 Press Note2 (2002) Series issued by the Ministry
of Commerce and Industry, Government of India.
204 Importer includes Non-Resident Indians, Foreign
parties and private Indian parties.
205 Article 1, Clause 8 of the U.S. Constitution.
206 Mark Litwak, "Dealmaking in the Film and Television
Industry" (1994) at p. 264.
207 Recording Industry Association of America;
www.riaa.com (As visited in
June 2001).
208 Mark Litwak, "Dealmaking in the Film and Television
Industry" (1994) at p. 273.
209 Motion picture production & distribution: www.supnik.com
(As visited in June 2001).
210 http://www.mpaa.org/movieratings/
(As visited on May 7, 2002).
211 http://www.natoonline.org/ratingsabout.htm
(As visited on May 7, 2002).
212 Mark Litwak, "Self Defence for Film Makers"
at http://www.marklitwak.com/selfdef.htm#_ednref4
(As visited on April 1,2002).
213 Supra no. 182
214 Ibid.
215 112 Cal. App. 285, 297 p. 91 (1931).
216 Mark Litwak, "Dealmaking in the Film and Television
Industry" (1994) at p. 289.
217 464 F. Supp. 426 (S.D.N.Y. 1978).
218 K Ramaswamy and G.B Patnaik JJ, of the Supreme Court
in State of Andhra Pradesh v. Nagoti Venkatramana, while commenting upon
the 1984 amendments in the Copyright Act.
219 http://www.iipa.com/aboutiipa.html
(As visited in January, 2003).
220 Section 62 of the Copyright Act.
221 Section 70 of the Copyright Act.
222 “The 2002 Special 301 Country Report” International
Intellectual Property Alliance, http://www.iipa.com/rbc/2002/2002SPEC301INDIA.pdf.
223 "Piracy Lays siege on the box office" Economic
Times, February 11, 2002.
224 Industry sources.
225 The Indian Entertainment Industry Strategy
and Vision, FICCI, March 2000.
226 “Music films launch anti-piracy campaign”, Economic
Times, December 25, 2002.
227 C. Lall, "Indian Film Industry and Copyright
Laws" (1998).
228 “At Full Speed: Hong Kong Cinema in Borderless
World.” By Ester C. M. Yau. Minneapolis, MN: University of Minnesota Press
(2001).
229 Section 2(h) of the Contract Act.
230 Section 2(a) and 2(b) of the Contract Act.
231 Section 23, 24 and 25 of the Contract Act.
232 Section 23 and 24 of the Contract Act.
233 Section 14 of the Contract Act.
234 Section 17 of the Contract Act.
235 Section 15 of the Contract Act.
236 Section 16 of the Contract Act.
237 Section 18 of the Contract Act.
238 Sections 20 and 22 of the Contract Act.
239 Section 21 of the Contract Act.
240 Section 11 of the Contract Act. For example,
a minor (below 18 years) may not have the capacity to enter into a film
contract.
241 Article 3 and 4 of the Berne Convention; Article
2 and 3 of the Universal Copyright Convention; and Article 3 and 4 of
the TRIPS Agreement.
242 For the purposes of Articles 3 and 4 of the TRIPS
Agreement, "protection" shall include matters affecting the availability,
acquisition, scope, maintenance and enforcement of intellectual property
rights as well as those matters affecting the use of intellectual property
rights specifically addressed in the TRI PS Agreement.
243 Paul D. Supnik "Copyright Clearance, Protection
and Enforcement Outside of the United States" at http://www.supnik.com/
(As visited on April 1, 2002).
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