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Overview
of Indian Law
(b) Protection
Of Copyright
Copyright is an
exclusive right that the owner of a work has with respect to his work.
Copyright consists, not merely in the right to reproduction, but also
in the right to work derived from the original works. In India, copyright
in a film is recognized and protected under the Copyright Act, 1957
(the "Copyright Act"). The Copyright Act, inter alia, defines
an author of a film, the different rights existing in the copyright
of a film, the term of the copyright and mode of transfer of these rights.
It also lays down the provisions regarding infringement of copyright
in a film. The Copyright Act has been amended from time to time to make
it more effective and to comply with international obligations.
(i) Works in
which Copyrights subsist
The Copyright Act affords separate and exclusive copyright protection
to original literary, dramatic, musical and artistic works, cinematograph
films and sound recordings.163
In the film industry, copyright exists in the following works:164
- Script, as
a literary work
- Lyrics of a
song, as literary works
- Music in the
film (either in the song, or the background music), as musical works;
- Photographs
or any posters made with respect to the film, as artistic works;
- A recording
of the songs and dialogues in the film, as sound recordings; and
- The entire
film as a whole, as a cinematograph film.
Therefore, besides
copyright in the cinematographic film itself, separate copyrights
also exists in any musical works and literary works in the film and
sound recordings of the film.
(ii) Author/Owner
of the Film
The author and first owner of a film is its producer.166
The producer also needs the services of artists, performers, directors,
lyricists, music composers, etc. during the course of production.
Under the Act, there is a provision that if a work is made in the
course of the author's employment under a contract of service or apprenticeship,
the employer shall, in the absence of any agreement to the contrary,
be the first owner of the copyright therein.167
Furthermore, if
a cinematograph film is made for valuable consideration at the instance
of any person, such person shall, in the absence of any agreement
to the contrary, be the first owner of the copyright therein.168
Therefore, it is essential that the producer enters into appropriate
employment or service agreements with the artists and the rest of
the crew to ensure that all the intellectual property rights in the
film belong to the producer.
(iii) Rights
of the author/owner
The Copyright Act lays down the various rights given to each class
of work.169
It provides the author/owner of the work, the exclusive right to do
or authorize the doing of certain acts, such as reproduction, communication,
publication, adaptation, translation etc. of the work or any substantial
part thereof. For example., for cinematograph films, the owner of
a cinematograph film is g ranted exclusive rights to:
- Make a copy of
the film, including a photograph of any image forming part thereof;
- Sell or give
on hire, or offer for sale or hire, any copy of the film; and
- Communicate the
film to the public.
(iv) Transfer
of Copyright
Transferring of copyright is a very crucial issue in the film industry
as the process of transferring copyrights commences from the time
of production of the film and continues until the time the film
is communicated to the public through various mediums. Transfer
of copyrights can take place either by way of an assignment170
or a license.171
Assignment implies
the transfer of ownership. The copyright may be assigned either
wholly or partially and either generally or subject to limitations.
The assignment may also be for the whole term of the copyright or
for only a part of the entire term. If the period of assignment
is not specified, it will be deemed to be five years from the date
of assignment. The assignment of the copyright will be valid only
if it is in writing and signed by the assignor or his duly authorized
agent. The assignment must identify the work, the specific rights
assigned and the duration and territorial extent of assignment.
In the case of a cinematographic film, the producer has the exclusive
rights to assign his copyright in the film to a third person. Assignment
may be by the first owner of the copyright in all existing work
or the prospective owner of copyright in a future work to a third
person. In case of assignment of copyright in any future work, the
assignment will take effect only once the work comes into existence.
The owner of
the copyright in any existing work or the prospective owner of the
copyright in any future work may grant any interest in the right
by license, in writing and signed by him or by his duly authorized
agent. But in the case of a license relating to copyright in any
future work, the license shall take effect only when the work comes
into existence. In the case of a cinematographic film, the producer
has the exclusive right to license his copyright in the film to
a third person. The conditions regarding period, rights and territory
in an assignment are also applicable to a license.
Issue 2: Whether
the film producer has the right to assign the copyright in the sound recording
to a music company
A sound recording
is a derivative work, since it is derived from musical or literary works
or a combination of both these works. One of the rights vested in the
copyright of musical and literary works is the right to make a sound recording
and cinematograph film with respect to these works.172
As mentioned earlier, the author of the literary work is the author/writer,
and the author of a musical work is the music composer. If a producer
wants to make a sound recording, which he wants to incorporate in his
cinematograph film, he would either have to employ the author of the literary
work and the music composer,173
or he would have to specifically get the copyright in the literary and
musical work assigned or licensed to him.
As a matter of general
practice in the film industry, it is found that there are no employment,
assignment or licencing agreements between the producer of a film and
the musical composer or author of the literary works. Therefore, in a
situation where there are no agreements, a question arises as to whether
the film producer has the rights in the sound recording embodied in his
film. Based upon an interpretation of the law, it would seem that the
producer may not have rights in the sound recording if he has not entered
into agreements with the authors of the musical and literary works.
If the producer does
not have any right in the sound recording, another issue that then arises
is whether the producer can assign the sound recordings in the film to
music companies to re-record and sell. A basic principle of law enshrined
in the Latin maxim, Nemo dat quod non habet, is that no one can pass a
better title than he himself has. If the producer has no title in the
sound recording in the film, he cannot assign / license it to the music
company.
The Supreme Court
has held that while a producer has the copyright in the entire film, a
musical composer can have a separate copyright in the musical work embodied
in the film, independent of the film. However, if a musical composer is
hired by the film producer, then all the rights would vest in the producer.
Therefore, there still
exists a gray area in this part of the law.
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