The Indian Media and Entertainment Sector ("M&E Sector") is one of the fastest growing sectors in the country and is estimated to generate significant revenues to the tunes of approximately USD 35 billion by 2021 at the rate of 11.6% CAGR or even more. At present, the M&E Sector generates direct and indirect employment of 4 million approximately.
This sector has witnessed consistent innovative technological trends and also increase in digitization and internet usage by the consumers and the content suppliers. The key growth segments in the M&E Sector are television broadcasting, distribution, print, film entertainment, digital media, animation, radio, advertising, live events etc. Despite this robust growth, the M&E Sector has not been exempt from diverse legal issues, and an extensor discussion of the same would be beyond the scope of this Article.
Some major legal challenges relate to Intellectual Property Rights Laws ("IPR's") and Cyber Laws, in particular, violation of copyright. The main focus of this Article would be bringing to the core legal issues pertaining to Copyright Infringement and Copyright Piracy and Ban on Exhibition. The M&E Sector, faces several roadblocks and hardships with respect to protection and enforcement of their rights in the event of any infringement.
The Copyright Act, 1957 ("Act") is the oldest IPR legislation in India, which provides for copyright protection for and registration of any literary, dramatic, musical, sound recording and artistic work. The Act has undergone several amendments in the years 1983, 1984, 1992, 1994 and 1999 to meet national and international requirements. The latest Copyright (Amendment) Act, 2012 bringing copyright law into compliance with the World Intellectual Property Organization "Internet Treaties", viz. harmonized the WCT and WPPT.
What Constitutes Copyright Infringement?
The copyright law confers upon the creator of the work, certain bundle of rights with respect to reproduction of the work and other acts, which enable the creator to benefit financially with due exercise of such rights. It ordinarily means the creator alone has the right to make copies of the works created by him/her or alternatively, prevents all others from making such copies.
Infringement means unauthorized reproduction, importation or distribution either whole or of a substantial part of the work protected by copyright. Section 51 of the Act deals with infringement of copyrights, which under the said provision is deemed to be infringed by any person when he inter alia without a license granted by the owner of the copyright does anything, which is the exclusive right to do conferred by the Act upon the owner of the copyright. Further, Section 2(m) defines the meaning of 'infringing copy'. To substantiate infringement, the copyright owner must show that: (a) only he/she own the valid copyright, and (b) the infringer has exercised one or more of the owner's exclusive rights to reproduce, publicly distribute, perform, display or adapt the copyrighted work.
Interpretation of Copyright Infringement by Indian Courts
Indian Courts have laid down certain tests to determine what and which works can be protected under the current regime of copyright law, and hence, only for these works can an author or owner claim protection against infringement.
Key Case Laws
In the celebrated case of R.G. Anand v. M/s. Deluxe films, the Hon'ble Supreme Court opined the following in relation to copyright infringement: (a) There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
(b) Where the same idea is developed in a different manner, it is manifest that the source being common, similarities are bound to occur. 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. (c) Where the reader or the viewer pursuant to having read or seen both the works is undoubtedly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
(d) Where the theme is the same but is expressed differently so that the ensuing work becomes a new work, no question of infringement of copyright arises. (e) Where there are material dissimilarities which negate the intention to copy the original and the coincidences appearing in the two works are clearly circumstantial, no infringement of the copyright is deemed to exist.
As a violation of copyright amounts to an act of piracy, it must be proved by clear and cogent evidence. The Bombay High Court in Zee Telefilms Limited vs. Sundial Communications Private Limited laid down the following two tests to determine copyright infringement.
i. Average Viewer Test: The impression created in the mind of a viewer is vital to this test, if it can be inferred by virtue of the said impression that the subsequent act is a copy of the original act then it is copyright infringement. This test was initially laid down in the R.G. Anand Case. However, the court in Zee Telefilms case reiterated and affirmed the position in R.G. Anand Case.
ii. Substance/Kernel Assessment Test: This test involves assessing the significance of the copied portion on the rest of the work. If the said work in its totality can sustain without the copied portion, then no copyright infringement can be deemed to have occurred but if the plagiarized portion is so integral to the whole work that if it were censored the rest of the work would lose its meaning then copyright infringement has definitely occurred.
Originally published in The HORIZON | January-March 2018
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.