India: Physical Copy Doctrine Versus The "Substantiality" Dictum

When it comes to the issue of copyright infringement of cinematograph films, there exist two schools of thought. One school believes that as far as cinematograph films are concerned, Section 14(1)(d) of the Copyright Act only protects the exact carbon copy of the work and not the contents in it. They argue that in lieu of Section 13(4) of the Act, the rights to the different contents of the film rests separately with the respective authors such as the music director, screenplay writers etc. Section 14(1)(d) only gives the owner (producer) of a cinematograph film copyright protection to the exact "copy" of the work. This theory that they propagate is sometimes referred to as the "Physical Copy Doctrine". The other school believes in a more broad reading of Section 14. According to them, a cinematograph film is more than a compilation of its underlying works. This school of thought believes that there is a creative authorship that goes into the making of a cinematograph film which is beyond all the inputs from different underlying works of the film and this creative authorship is what puts the underlying works together. Hence, this creative work put by the producer in the form of choices and decision making deserves to be protected by copyright. The proponents of this school therefore argue in favour of the producer getting copyright protection beyond the exact copy of the film, emphasising on the issue of "substantial" copying. According to them, Section 14(1)(d) also protects the producer from substantial copying and not only the exact copying of the work. It is this very argument that creates a conflict with the physical copy doctrine.

In order to find out which argument carries more weight, it is important that one looks into the judicial precedent on the issue of copyright protection of cinematograph films. Surprisingly, there are judgments with widely varying perspectives on the issue. One of the most authoritative judgments on this issue is that of RG Anand v. Delux Films¹. The Apex Court in this 1978 case held that "if on a perusal of the copyrighted work the defendant's work appears to be a transparent rephrasing; or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved"². Thus, the test of substantial similarity was laid down and in the years to come, the Indian courts have followed this dictum a number of times. However, a number of judgments that has followed this dictum have received a lot of flak and criticism from the adherents of the "physical copy doctrine". This apparent conflict between the two theories came into the limelight recently when Justice Manmohan of the Delhi High Court came up with two judgments in July last year – the MRF Case³ and the Yash Raj Films Case.⁴ Both the judgments based its core on the "substantiality" theory and took a stand that was very different from that taken by the Bombay and the Madras High Court. Interestingly the Court observed the Calcutta High Court's judgment in Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah⁵ which was of the opinion that the object of the Copyright Act would not be achieved if the producer is not protected against copying of content of the cinematograph film. The Hon'ble Delhi High Court took a stand that cinematograph films are more than a sum of its parts and must enjoy full protection under the Copyright Act. It relied on the judgment of Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association⁶ on taking this stand. The IPRS judgment said that a cinematograph film is a "felicitous blend, a beautiful totality.......... Cinema is more than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and, indeed, more than dramatic story, exciting plot, gripping situations and marvelous acting."⁷ Justice Krishna Iyer through this verbose judgment tried to convey that in addition to various artists acquiring copyrights over their respective underlying works, the producer also acquires a similar copyright in lieu of being a "master of his combination of artistic pieces"⁸. In addition to relying on the IPRS judgment, the Court also took note of Article 14bis(1) of the Berne Convention which says that the owner of copyright in a cinematograph film shall enjoy the same rights as the author of an original work.

The stand taken by the Delhi High Court in MRF and Yash Raj, and the Calcutta High Court in Venkatesh Films has received praise from a section of the industry, especially the producers. However, the opponents have presented equally strong arguments criticizing the stand taken by the Court. It is also important to note that the Bombay High Court and the Madras High Court have given judgments with broadly varying opinion.

Although the Venkatesh Films judgment relies on the RG Anand case, it is important to take note of the fact that the object of copying in both the cases differed. While, in RG Anand, the Court looked into the copying of the expression of the ideas from a dramatic work, in Venkatesh Films, the Court was looking into the copying of the synchronization of images and sounds of the plaintiff's film. Hence, relying on RG Anand was not appropriate. Relying on the Indian Performing Rights Society judgment by the Delhi High Court is also criticized. The IPRS judgment does a good job in establishing that a cinematograph is more than a sum of its parts and the owner of it must deserve separate copyright. However, the Delhi High Court fails to point out which particular sub-clause of section 14(1)(d) of the Copyright Act is violated. Furthermore, the Delhi High Court also relies on Article 14bis(1) of the Berne Convention as mentioned above, but it fails to see Article 14bis(2) which says, "Ownership of copyright in a cinematographic work shall be a matter for legislation in a country where protection is claimed." It is pertinent to mention that the Supreme Court in the landmark Vishaka Case⁹ has held that an international treaty can be relied on to interpret the law only when the domestic law has some lacuna or is silent about it. Also, India is a Dualist country that bars the judges from directly applying any International law.

Apart from the criticisms given by proponents of the Physical Copy Doctrine, it is important to note that there are several judgments that support their point of view as well. The Bombay High Court in the cases of Star India Pvt. Ltd. v. Leo Burnett (India) Pvt¹⁰ and Zee Entertainment Enterprises v. Gajendra Singh & Ors.¹¹ was of the view that the copyright of a cinematograph film is only effected when a "physical Copy" or an actual copy is made. Even the Madras High Court in the case of Thiagarajan Kumararaja v. M/s Capital Film Works and Anr. ¹² where the issue was with respect to the remake rights of a producer, the Court held that the producer does not have the right to remake a film as that would be substantially similar to the underlying works of the film. Therefore, this judgment also leans toward the physical copy doctrine, giving a narrow interpretation to the rights available to the producer under Section 14(1)(d) of the Act.

In this scheme of things where there is an apparent conflict between the interpretations given by the court with respect to the same issue, a standard position needs to be settled. The doctrine of Scene a Faire seems to be a perfect solution. This doctrine emerges from the idea-expression dichotomy and tries to draw a line between the elements that can be protected as expressions of ideas and the elements that cannot. The case of Alexander v. Haley¹³ crisply explains the elements that cannot be protected under this doctrine as "incidents, characteristics or settings which are practical matter indispensable or at least standard, in the treatment of a given topic"¹⁴. Interestingly, the RG Anand case explains and uses this concept in its judgment. However, over the years, High Courts have failed to incorporate this doctrine while interpreting the Copyright Act. Such matters regarding copying of cinematograph films are becoming frequent and will only rise with the ever-growing movie industry. The makers of the film "Raabta" in the year 2017 was slapped with a copyright infringement suit by the makers of "Magadheera", a Telegu film. The suit was later abruptly withdrawn by the plaintiffs. In another recent case, the makers of the film "Ujda Chaman" locked horns in a legal battle with the makers of "Bala" alleging copyright infringement in the dialogues and screenplay of the film. No further developments have been reported in the case since. The issue of copyright infringement of cinematograph films has given rise to opposing stands taken by the High Courts and hence, adjudication on this matter by the Supreme Court along with the use of the concept of "Scene a Faire" is the need of the hour.

Footnotes

[1] AIR 1978 SC 1613

[2] ibid

[3] MRF Limited v. Metro Tyres Limited, CS(COMM) 753/2017

[4] Yash Raj Films Pvt Ltd v. Sri Sai Ganesh Productions, CS(COMM) 1329/2016

[5] 2009 SCC OnLine (Cal.) 2113

[6] (1977) 2 SCC 820

[7] ibid

[8] ibid

[9] Vishaka & Ors v. State of Rajasthan & Ors, AIR 1997 SC 3011.

[10] 2003 (2) BomCR 655

[11] 2007 (6) BomCR 700

[12] 2017 SCC OnLine Mad 37588

[13] 460 F. Supp. 40 (S.D.N.Y. 1978)

[14] ibid

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