WHETHER COPYRIGHT CAN BE USED AS
WHETHER COPYRIGHT CAN BE USED AS
PROTECTION TOOL FOR
PROTECTION TOOL FOR
CINEMATOGRAPHIC FLIM AND SOUND
CINEMATOGRAPHIC FLIM AND SOUND
RECORDING
RECORDING
INTRODUCTION INTRODUCTION
Intellectual Property Rights are the legal rights that are granted to a person for any Intellectual Property Rights are the legal rights that are granted to a person for any creative and artistic work, for any invention or discovery, or for any literary work or creative and artistic work, for any invention or discovery, or for any literary work or words, phrases and symbols or designs for a stipulated period of time. The owners of words, phrases and symbols or designs for a stipulated period of time. The owners of Intellectual Property are granted certain exclusive rights through which they use their Intellectual Property are granted certain exclusive rights through which they use their property without any di
property without any disturbance and can prevsturbance and can prevent the misuse of their prent the misuse of their property.operty. The
The CopyriCopyright ght cct t of of !"!# !"!# was was essenessentialtially ly an an extenextension sion of of the the $riti$ritishsh Copyright ct, !"!! which governed the
Copyright ct, !"!! which governed the country till independence. fter India%scountry till independence. fter India%s independence, the Copyright ct, !"&' came into force
independence, the Copyright ct, !"&' came into force which has undergone severalwhich has undergone several am
amenendmdmenentsts, , frfrom om titime me to to titime me to to memeet et ththe e chchalallelengnges es poposesed d by by tetechchnonolologigicacall developments, the latest being the
developments, the latest being the ()!( amendments.()!( amendments. The
The term term *cop*copyrightyright+ + is is not not defindefined ed under under the the IndiaIndian n CopyriCopyright ght cct, t, !"&'!"&' he
hereireinafnafter ter refreferrerred ed to to as as *Co*Copyrpyrighight t cct+-t+-. . The The gengeneraeral l conconnotnotatiation on of of the the tertermm copyright refers to the *right to copy+ which is available only to the author or the creator, copyright refers to the *right to copy+ which is available only to the author or the creator, as the case may be. Thus, any other person who copies the original work would be as the case may be. Thus, any other person who copies the original work would be amount to infringement under the Copyright ct. Copyright ensures certain minimum amount to infringement under the Copyright ct. Copyright ensures certain minimum safeguards of the rights of authors over their creations. Creativity being the keystone of safeguards of the rights of authors over their creations. Creativity being the keystone of progress,
progress, no no civilied society civilied society can can afford afford to to ignore ignore the the basic basic re/uirement of re/uirement of encouragingencouraging the same. 0conomic and s
The
The protection protection provided provided by by copyright copyright to to the the efforts efforts of of writers, writers, artists, artists, designers,designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.
them to create more and motivates others to create.
1n the other hand, what is created by him2her cannot be claimed ownership for 1n the other hand, what is created by him2her cannot be claimed ownership for generations all together as it might harm the social 3ustice. Therefore,
generations all together as it might harm the social 3ustice. Therefore, a term of life plusa term of life plus sixty
sixty yearyearss is being adopted in India for the purpose of determining the period of is being adopted in India for the purpose of determining the period of copyright. This period may vary from country to country. If copyright protection is copyright. This period may vary from country to country. If copyright protection is applied rigidly, it can hamper progress of the society. Therefore, copyright laws are applied rigidly, it can hamper progress of the society. Therefore, copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained enacted with necessary exceptions and limitations to ensure that a balance is maintained between the int
between the interests of the creators anerests of the creators and of the communityd of the community.. Copyright
Copyright in in a a work work is is considered considered as as infringed infringed only only if if aa substantial partsubstantial part is usedis used unauthoried. 4hat is 5substantial% varies from case to case. 6ore often than not, it is a unauthoried. 4hat is 5substantial% varies from case to case. 6ore often than not, it is a matter of /uality rather than /uantity. 7or example, if a lyricist copy a very catching matter of /uality rather than /uantity. 7or example, if a lyricist copy a very catching phrase from another lyric
phrase from another lyricist%s ist%s song, there is likely to bsong, there is likely to be infringement even ie infringement even if that phrase isf that phrase is ve
very ry shshorort. t. ThThe e bebest st exexamamplple e wowoululd d be be *1*1h, h, PrPretetty ty wowomemen+ n+ dedealalt t in in ththe e cacase se of of
Campbell Vs Acuff Ross Music Inc Campbell Vs Acuff Ross Music Inc..
The
The copyrcopyright ight law law theretherefore, fore, to to strikstrike e a a balabalance nce betwbetween een promopromotingting innovativeness amongst the creators and the interest of the general public has excluded a innovativeness amongst the creators and the interest of the general public has excluded a fair deal of works that is permitted without specific permission of the copyright owners. fair deal of works that is permitted without specific permission of the copyright owners. In order to protect the interests of
In order to protect the interests of users, some exemptions have been prescribed in respectusers, some exemptions have been prescribed in respect of specific uses of works en3oying copyright such as research or private study, criticism of specific uses of works en3oying copyright such as research or private study, criticism or review, reporting of events, 3udicial proceeding, performance made before a non8 or review, reporting of events, 3udicial proceeding, performance made before a non8 paying audience et
paying audience etc.c. The
The most most important important criteria criteria to to determine determine whether whether the the said said article article is is copyrightablecopyrightable or not, is based on its
or not, is based on its originalityoriginality .lso copyright can be only for things that are worth .lso copyright can be only for things that are worth copying and not otherwise. 7or example, a baby scribing in a
copying and not otherwise. 7or example, a baby scribing in a pad cannot be copyrighted.pad cannot be copyrighted. Copyright protects the
Copyri
Copyright ght also also does does not not proteprotect ct the the titltitles es per per se se or or the the namenames, s, word word or or a a set set of of words. $ut there can be exceptions based on the facts and circumstances of each case. words. $ut there can be exceptions based on the facts and circumstances of each case. 7or example, the actor 9hah Rukh :han has copyrights his name 9R:- and the music 7or example, the actor 9hah Rukh :han has copyrights his name 9R:- and the music com
composposer er .R..R.RahRahmaman n copcopyriyrightghted ed the the tittitle le *;a*;ai i <o<o+ + for for the the 1sc1scar ar song song whwhich ich isis currently under litigation. It is noteworthy to mention here that the defendant can always currently under litigation. It is noteworthy to mention here that the defendant can always take a stand of cancellation of copyright in any suit unless he is estopped by any implied take a stand of cancellation of copyright in any suit unless he is estopped by any implied or express acceptance. Copyright may also be granted for things that would come under or express acceptance. Copyright may also be granted for things that would come under patents, trademarks o
patents, trademarks or designs..r designs.. In
In fafacct, t, iit t is is a a bubundndle le of of ririghghts ts iincncllududiningg, , inintter er aaliliaa, , ririghghts ts ooff reproduction,reproduction, communication to the public, adaptation and translation
communication to the public, adaptation and translation of the work. There could beof the work. There could be slight variations in the composition of the rights depending upon
slight variations in the composition of the rights depending upon the nature of work.the nature of work.
WOR IN W!IC! CO"#RI$!T %U&%I%T% 'C!A"T(R III)
WOR IN W!IC! CO"#RI$!T %U&%I%T% 'C!A"T(R III) %(CTION *+ O,%(CTION *+ O, CO"#RI$!T
CO"#RI$!T
ACT-!.
!. =i=iteterarary ry woworkrks s iincncluludiding ng cocompmpututer er prprogograrammmmeses, , tatablbles es anand d cocompmpililatatioionsns including computer literary data
including computer literary data bases-(.
(. >r>ramamatatic wic wororksks ?.
?. 6u6usisicacal l woworkrkss #.
#. rrtitiststic ic woworkrkss &.
&. CiCinenemamatotogrgrapaph fih filmlmss @.
@. 9o9ounund d rerecocordrdiningsgs..
,oreign Wor.s ,oreign Wor.s
The copyright of foreign works is also protected in India. Copyright of nationals of The copyright of foreign works is also protected in India. Copyright of nationals of countries who are members of the $erne Convention for the Protection of =iterary and countries who are members of the $erne Convention for the Protection of =iterary and rtistic 4o
rtistic 4orks, Aniversal rks, Aniversal Copyright Convention and Copyright Convention and the TRIP9 greement are protectedthe TRIP9 greement are protected in India through the International Copyright 1rder, as if such works are Indian works in India through the International Copyright 1rder, as if such works are Indian works Copyright as provided by the Indian Copyright ct is valid only within the borders of the Copyright as provided by the Indian Copyright ct is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a country. To secure protection to Indian works in foreign countries, India has become a
mem
member ber of of the the folfollowlowing ing intinternernatiationaonal l conconvenventiotions ns on on copcopyriyright ght anand d neineighbghbourouringing related- rightsB
related- rightsB
a. $erne Convention for
a. $erne Convention for the Protection of =iterary and rtistic works.the Protection of =iterary and rtistic works. b. Aniversal Copyright Conv
b. Aniversal Copyright Convention.ention. c.
c. ConConvenventiotion n for for the the ProProtetectiction on of of ProProducducers ers of of PhoPhonognogramrams s agaagainsinst t AnaAnauthuthoriorisedsed >uplication of their Phonograms.
>uplication of their Phonograms. d. 6ultilateral Convention for
d. 6ultilateral Convention for the the voidance of >ouble Taxvoidance of >ouble Taxation of ation of Copyright Royalties.Copyright Royalties. e. Trade Related spects of Intellectual Property Rights TRIP9- greement
e. Trade Related spects of Intellectual Property Rights TRIP9- greement
O/ners0ip O/ners0ip
enerally, the creator or the author of the work is the owner of the work and therefore enerally, the creator or the author of the work is the owner of the work and therefore entitled to get the copyright for the work. 4here the author of the work is employed by entitled to get the copyright for the work. 4here the author of the work is employed by another person, the work belongs to the employer of the author. nd where creation of another person, the work belongs to the employer of the author. nd where creation of the works is incidental, but not the purpose, the work belongs to the authors. $ut in the works is incidental, but not the purpose, the work belongs to the authors. $ut in practice,
practice, out out of of the the contractual contractual agreement agreement between between the the employer employer and and the the employee, employee, thethe creation during the course of
creation during the course of employment would be belonging to employment would be belonging to the employer.the employer.
There may be a situation where a particular final work involves many copyrightable sub8 There may be a situation where a particular final work involves many copyrightable sub8 divisions such as film wherein many works such as music, lyrics, dramatic works etc are divisions such as film wherein many works such as music, lyrics, dramatic works etc are copyrightable. The authors in the creation of such work are many such asB
copyrightable. The authors in the creation of such work are many such asB a. In the case of
a. In the case of a musical work, the composer.a musical work, the composer. b. In the case of a ci
b. In the case of a cinematograph film, thnematograph film, the producer.e producer. c. In the case of
c. In the case of a sound recording, the producer.a sound recording, the producer. d. In the case of
d. In the case of a photograph, the photographer.a photograph, the photographer.
e. In the case of a computer generated work, the person who causes the work to be e. In the case of a computer generated work, the person who causes the work to be created.
created. f. In the
4her
4here e the the work work is is made made by by the the authoauthor r in in the the courscourse e of of his his emploemployment yment under under aa contract of service or apprenticeship, for the purpose, the said employer shall, in the contract of service or apprenticeship, for the purpose, the said employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work, or to the reproduction of in so far as the copyright relates to the publication of the work, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author the work for the purpose of its being so published, but in all other respects the author shall be the first owner of
shall be the first owner of the copyright in the work. 7or example, where the composer of the copyright in the work. 7or example, where the composer of the music copyrights his creation and later provides the same to the film for some the music copyrights his creation and later provides the same to the film for some consideration, the work is still owned by the author only.
consideration, the work is still owned by the author only.
A1CIN(MATO$RA"! ,I2M A1CIN(MATO$RA"! ,I2M A Cinematograp0 film
A Cinematograp0 film can be defined as any work of visual recording on any medium can be defined as any work of visual recording on any medium produced through a
produced through a process from which a process from which a moving image may be moving image may be produced by any produced by any meansmeans and includes a sound recording accompanying such visual recording and DcinematographD and includes a sound recording accompanying such visual recording and DcinematographD sha
shall ll be be conconstrstructucted ed as as incincludluding ing any any worwork k proproducduced ed by by anany y proprocescess s anaanaloglogous ous toto cciinneemmaattooggrraapph h iinncclluuddiinng g vviiddeeo o ffiillmmss The author of cinematograph film is the producer, as par section (d-v- of the copyright The author of cinematograph film is the producer, as par section (d-v- of the copyright c
ctt. . EEiidedeo o fifilmlms s arare e dedeememed ed to to be be wowork rk prprododucuced ed by by a a prprococesess s ananalalogogouous s toto cinematography.
cinematography.
%ection *+'*3- of t0e U1
%ection *+'*3- of t0e U11 Copyrig0t Act of *456 7efines t0e term as 1 Copyrig0t Act of *456 7efines t0e term as follo/s8follo/s8
Cinematograph
Cinematograph film film means means any any se/uence se/uence of of visual visual images images recorded recorded on on material material of of any descr
any descriptiption ion whwhethether er tratranslnsluceucent nt or or notnot- - thetherebreby y can be can be cacapabpable le of of use of use of thathatt materialB8
materialB8
aa--oof f bbeeiinng g sshhoowwn n aas s a a mmoovviinng g ppiiccttuurree, , oorr.. b- of being re
b- of being recorded on other corded on other material material whether translucwhether translucent or not-, by ent or not-, by the use of wthe use of whichhich it
it cacan n be be shshowown.n.ThThiis s dedefifininitition on wowoululd d apappepear ar to to ininclcludude e vividedeo o cacassssetettte e tatapepess The
The cine cine artisartiste te who who acts acts in in the the film film is is not not proteprotected cted by by copyrcopyright ight law law for for hishis acting.
cinematograph cinematograph film film may may be be taken taken of of a a live live performance, performance, like like sport sport events,events, public
public functions, functions, or or dramatic dramatic or or music music performance performance or or it it may may be be based based on on thethe ci
cinenemmatatogograraph ph veversrsioion n of of a a liliteterarary ry or or drdramamatatic ic woworkrk. . In In ththe e lalatttter er cacase se if if ththee corresponding literary or dramatic work is copyrighted the making of the film will corresponding literary or dramatic work is copyrighted the making of the film will re/uire the consent or license of the owner of the copyright in the literary or dramatic re/uire the consent or license of the owner of the copyright in the literary or dramatic work since that copyright includes the right to make a cinematograph film. 9imilarly if work since that copyright includes the right to make a cinematograph film. 9imilarly if the film has a sound track recording of music the producer will have to
the film has a sound track recording of music the producer will have to obtain the consentobtain the consent of the verse writer and the song
of the verse writer and the song writer if copyright subsists in them.writer if copyright subsists in them.
(ffect of censors0ip on copyrig0t (ffect of censors0ip on copyrig0t
4here
4here the the owner owner of of a a cinematograph cinematograph film film has has committed committed an an offence offence under under the the lawlaw relating to film censorship and is liable to
relating to film censorship and is liable to prosecution for that offence, the /uestion arisesprosecution for that offence, the /uestion arises whether it would affect his right to copyright in the film. 9ince the subsistence of whether it would affect his right to copyright in the film. 9ince the subsistence of copyr
copyright depends only on ight depends only on the provisionthe provisions s of of the Copyrighthe Copyright ct it t ct it would appeawould appear r that thethat the fact that the owner has not complied with the film censorship
fact that the owner has not complied with the film censorship re/uirements will not affectre/uirements will not affect th
the e subsubsisiststenence ce of of cocopypyririghght t in in ththe e fifilm lm or or ththe e enenfoforcrcememenent t of of rerememedidies es agagaiainstnst infringement.
infringement.
Copyrig0t in lyric an7 music
Copyrig0t in lyric an7 music an7 o/ner of cinematograp0 filmsan7 o/ner of cinematograp0 films
1nce
1nce the the author author of of a a lyric lyric or or a a musical musical work work parts parts with with a a portion portion of of his his copyrightcopyright by
by authoriing a authoriing a film producer film producer to make to make a a cinematograph film in cinematograph film in respect of respect of his work his work andand thereby to have his work incorporated or recorded on the sound track of a cinematograph thereby to have his work incorporated or recorded on the sound track of a cinematograph film, the latter ac/uires by virtue of section !#d- of the Copyright ct on completion of film, the latter ac/uires by virtue of section !#d- of the Copyright ct on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of the cinematograph film a copyright which gives him the exclusive right inter alia of performing
performing the the work work in in public public for for example example to to cause cause the the film film in in so so far far as as it it consists consists of of visual images to be seen in public and in so far as it consists of the acoustic portion visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further including a lyric or a musical work to be heard in public without securing any further permission of the author compo
permission of the author composer- of the lyric or a musical woser- of the lyric or a musical work for the performance of rk for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of the $ritish comes to vest in the cinematograph film as a whole which in the words of the $ritish
Co
Copypyririghght t CoCommmmitittetee e seset t up up in in !"!"&! &! rerelalatetes s boboth th to to cocopypyining g ththe e fifilm lm anand d to to ititss performance in public
performance in public..
T0e composer of a lyric or a musical /or. T0e composer of a lyric or a musical /or.
<owever,
<owever, retains retains the the right right of of performing performing it it in in public public for for profit profit otherwise otherwise than than as as aa part of the cinematograph fil
part of the cinematograph film and he cannot be restrained from doing so. In other words,m and he cannot be restrained from doing so. In other words, the author composer- of a lyric or musical work who has authoried a cinematograph the author composer- of a lyric or musical work who has authoried a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author or recording it on the sound track of a cinematograph film cannot restrain the author owner- of the film from causing the acoustic portion of the film to be performed or owner- of the film from causing the acoustic portion of the film to be performed or pro3ected
pro3ected or or screened screened in in public public for for profit profit or or from from making making any any record record embodying embodying thethe recording in any part of the sound track associated with the film by utiliing such sound recording in any part of the sound track associated with the film by utiliing such sound track or from communicating or authoriing the communication of the film by radio8 track or from communicating or authoriing the communication of the film by radio8 diffusion, as s. !#!-c- now replaced by
diffusion, as s. !#!-c- now replaced by the new s.!#d- of the new s.!#d- of the the ct expressly permits thect expressly permits the owner of the copyright of the cinematograph film to do
owner of the copyright of the cinematograph film to do all these things. In such all these things. In such cases, thecases, the aut
author hor owownerner- - of of the the cincinemaematogtograpraph h filfilm m cancannot not be be saisaid d to to wrwrongongfulfully ly appappropropriariatete anything which belongs to the composer of the lyric or
anything which belongs to the composer of the lyric or musical work.Fmusical work.F
The definition of cinematograph film only protects the film as well as the sound track The definition of cinematograph film only protects the film as well as the sound track which is married to the film proper i.e. the
which is married to the film proper i.e. the visual se/uence-visual se/uence-The
The copyright copyright in in the the entire entire film film may may cover cover portions portions of of the the film film in in the the sense sense thatthat the owner of the copyright in the film will be entitled to the right in portions of the filmG the owner of the copyright in the film will be entitled to the right in portions of the filmG but this idea or concept cannot be extended to encompass an idea that there would be one but this idea or concept cannot be extended to encompass an idea that there would be one owner of the cinematograph film and different owners of portions thereof in the sense of owner of the cinematograph film and different owners of portions thereof in the sense of performers who have col
performers who have collectively played rlectively played roles in the motion picoles in the motion picture.ture.
Noro/9ian : Ar.s 2t7
Noro/9ian : Ar.s 2t7. Ho.(- ()))J 79R ?@? C-. In this case the /uestion as to. Ho.(- ()))J 79R ?@? C-. In this case the /uestion as to whether a short film called F3oyF consisting of a man dancing to music was infringed by whether a short film called F3oyF consisting of a man dancing to music was infringed by another film called DnticipationD. In both films the visual impact was produced by an another film called DnticipationD. In both films the visual impact was produced by an editing techni/ue known as D3ump cuttingD. $oth were
editing techni/ue known as D3ump cuttingD. $oth were advertising films. It was held by theadvertising films. It was held by the court of appeal that
!- since D3oyD was a work of action capable being performed before an audience it was a !- since D3oyD was a work of action capable being performed before an audience it was a dramatic work
dramatic work (- D3oyD was not a
(- D3oyD was not a recording of a dramatic workGrecording of a dramatic workG ?- DnticipationD was not a copy of a
?- DnticipationD was not a copy of a substantial part of D3oyD.substantial part of D3oyD. $.
$.%OUND R(CORDIN$%OUND R(CORDIN$
Copyri
Copyright ght exist exist in in a a sound sound recorecording rding 9oun9ound d recorrecording ding meanmeans s a a recorecording rding of of sounds from which such sounds may be produced regardless of the medium on which sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by
such recording is made or the method by which the sounds are reproduced.which the sounds are reproduced.
Copyr
Copyright ight will will subsist subsist in in a a sound sound recorrecording ding only only if if it it is is made made as as par par the the cct.t. Copyright will not subsist in any sound recording made in respect of literary, dramatic or Copyright will not subsist in any sound recording made in respect of literary, dramatic or musical work, if in exist in the making the sound recording, or that copyright in such musical work, if in exist in the making the sound recording, or that copyright in such work has been violated or infringed. The right of sound recording is different from the work has been violated or infringed. The right of sound recording is different from the sub3ect matter recorded as they are the sub3ect of
sub3ect matter recorded as they are the sub3ect of independent copyrights. The author of aindependent copyrights. The author of a sound recording is
sound recording is the producer.the producer.
In the present A.:. Copyright, >esigns and Patents ct !"KK, s. & defines Fsound In the present A.:. Copyright, >esigns and Patents ct !"KK, s. & defines Fsound recordingF as followsB
recordingF as followsB
;%oun7 recor7ing; means< ;%oun7 recor7ing; means< 'a- a recor7ing of soun7s
'a- a recor7ing of soun7s from /0ic0 t0e soun7s from /0ic0 t0e soun7s may be repro7uce7 ormay be repro7uce7 or
'b- a recor7ing of t0e /0ole or any part of a literary) 7ramatic or musical /or. 'b- a recor7ing of t0e /0ole or any part of a literary) 7ramatic or musical /or. , , of of which sounds reproducing the work or part can be produced. irrespective of the medium which sounds reproducing the work or part can be produced. irrespective of the medium on which the recording is made or the method by which the sounds are reproduced or on which the recording is made or the method by which the sounds are reproduced or produced.
produced.
Recor7ing of music Recor7ing of music
6usi
6usical cal works works and and sound sound recorecording rding embodembodying ying the the music music are are consiconsidereddered sep
separaarate te subsub3ec3ect8mt8mattatters ers for for copcopyriyrightght. . ThuThus s copcopyriyright ght in in the the recrecordording ing of of musmusic ic isis separate from the copyright in the music. Copyright in the music vests in the composer separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. and the copyright in the music recorded vests in the producer of the sound recording. 4here the song has not been written down and the composer who is also the performer 4here the song has not been written down and the composer who is also the performer
records the song two copyrights come into existence at the same time, one for the music records the song two copyrights come into existence at the same time, one for the music and one for the sound
and one for the sound recording.recording.
IINN,,RRIINN$$((MM((NNT T IIN N CCIINN((MMAATTOO$$RRAA""!!IIC C ,,22IIM M AANND D %%OOUUNNDD R(CORDIN$%8
R(CORDIN$%8
II11 CCIINN((MMAATTOO$$RRAA""!!IIC WC WOORR%%88
Copyright in cinematographic works is more complex in nature as there a variety of Copyright in cinematographic works is more complex in nature as there a variety of copyrights exist in a single work and many a times these rights are also overlapping. The copyrights exist in a single work and many a times these rights are also overlapping. The first right in a film is the Dtheatrical rightD i.e. the right to exhibit films in theatres. The first right in a film is the Dtheatrical rightD i.e. the right to exhibit films in theatres. The producer is the copyright holder
producer is the copyright holder. The di. The distributors buy theatrical ristributors buy theatrical rights from producers andghts from producers and then make some arrangements with the theatre owners for actual exhibition to the public. then make some arrangements with the theatre owners for actual exhibition to the public. The theatrical rights are limited by
The theatrical rights are limited by territory and time.territory and time. 7ilms
7ilms are are also also released released in in video video cassettes. cassettes. In In fact, fact, these these days days viewing viewing film film at at homehome has become more popular than seeing the same at theatres. The producers sell the video has become more popular than seeing the same at theatres. The producers sell the video rights to another party who makes video cassettes for sale in the market. These cassettes rights to another party who makes video cassettes for sale in the market. These cassettes are meant for Dhome viewingD only i.e. one can
are meant for Dhome viewingD only i.e. one can buy a copy of it buy a copy of it for seeing at home withfor seeing at home with family members and friends. 9uch cassettes cannot be used
family members and friends. 9uch cassettes cannot be used for showing the film in for showing the film in cablescables or through satellite channels because showing films in cables or satellite channels re/uire or through satellite channels because showing films in cables or satellite channels re/uire ac/uisition of separate sets of rights namely Dcable rightsD and Dsatellite rightsD etc. cable ac/uisition of separate sets of rights namely Dcable rightsD and Dsatellite rightsD etc. cable network is generally limited to local areas as it re/uires receivers viewersD TEs- which network is generally limited to local areas as it re/uires receivers viewersD TEs- which are to be physically connected through cable wire to the operators. In case of satellite are to be physically connected through cable wire to the operators. In case of satellite channels, however
channels, however, there. is no such , there. is no such physical limit as transmission takes place through air physical limit as transmission takes place through air and received at the users end by
and received at the users end by dish antennas-.dish antennas-. Interestingly
Interestingly, in India satellite transmissions, in most , in India satellite transmissions, in most of the cases, reach to of the cases, reach to end8end8 users through cable networks only. The cable networks in India works in a two8tier users through cable networks only. The cable networks in India works in a two8tier system. t the top there are main operators who transmit their programmes through system. t the top there are main operators who transmit their programmes through num
numeroerous us smasmall ll loclocal al opeoperatrators ors on on a a frafranchnchise ise basbasis. is. The The proprogragrammemmes s of of satsatellelliteite channels reach to the viewers through cable networks. The main- cable operators do not channels reach to the viewers through cable networks. The main- cable operators do not pay anything
for pay
for pay channchannels e.g. 09PH, Lee els e.g. 09PH, Lee CinemCinema, 6ovie a, 6ovie Club etc-. The small Club etc-. The small cable operacable operators,tors, however, share their incomes with their respective main operators. The revenue for small however, share their incomes with their respective main operators. The revenue for small operators comes from the subscription of viewers.
operators comes from the subscription of viewers.
6usic is an integral part of any cinematographic work. In India, film sound tracks 6usic is an integral part of any cinematographic work. In India, film sound tracks ac
accocoununt t fofor r alalmomost st ?? I I #th of the total music market. 0ven if film producer has the#th of the total music market. 0ven if film producer has the copyright in the film, the music included in the film is the outcome of efforts undertaken copyright in the film, the music included in the film is the outcome of efforts undertaken by a separate group of
by a separate group of creative people such as the composer, lyricists etc. each of them iscreative people such as the composer, lyricists etc. each of them is a rightholders of its own right.
a rightholders of its own right. Infringement
Infringement of of copyright copyright of of cinematographic cinematographic works works takes takes two two principal principal forms,forms, namely D
namely D:i7eo piracy= an7 =cable piracy=:i7eo piracy= an7 =cable piracy=. <owever, infringement of copyright in one. <owever, infringement of copyright in one form can spill
form can spill over and affect the revenues over and affect the revenues of the other. DEiof the other. DEideo piracyD takes deo piracyD takes place when aplace when a film is produced in the form of video cassette without taking proper authorisation from film is produced in the form of video cassette without taking proper authorisation from the right holder i.e. producer. Two types ofvideo piracies are common in India. 1ne, the right holder i.e. producer. Two types ofvideo piracies are common in India. 1ne, where video right for films has not been sold at all by the producer- but video cassettes where video right for films has not been sold at all by the producer- but video cassettes are available in the market for buying or borrowing. nd two, when video right is are available in the market for buying or borrowing. nd two, when video right is legally- sold to a party but cassettes are made and sold by others pirates- as well. Cable legally- sold to a party but cassettes are made and sold by others pirates- as well. Cable piracy is unauthorised transmission of films
piracy is unauthorised transmission of films through cable network. s mentioned above,through cable network. s mentioned above, showing a film in a cable network re/uires ac/uisition of proper authorisation from the showing a film in a cable network re/uires ac/uisition of proper authorisation from the rightholders. $ut many a time, films, especially the new releases, are shown through rightholders. $ut many a time, films, especially the new releases, are shown through cab
cableles s wiwithothout ut sucsuch h autauthorhorisaisatiotion, n, whiwhich ch tantantamtamounount t to to infinfrinringemgement ent of of copcopyriyrightght.. Inf
Infrinringemgement ent of of copcopyriyright ght is is a a rarrare e phephenomnomenoenon n in in satsatellellite ite chachannennels ls becbecausause e sucsuchh channels are organised and generally do not show films without buying proper rights. $ut channels are organised and generally do not show films without buying proper rights. $ut there are cases where right of one channel operator is violated by
there are cases where right of one channel operator is violated by others.others.
IIII11 %%OOUUNND D RR((CCOORRDDIINN$$
The sound
The sound recorrecording industry faces three types of ding industry faces three types of infriinfringemengement.nt. ,irst,irst, there is a simple, there is a simple wa
way y by by whwhicich h sonsongs gs frfrom om didiffffererenent t lelegigititimamate te cacassessetttteses2C2C1s 1s aand nd ththus us didiffffererenentt rightholders- are copied and put in a single cassette2C1. These are then packaged to look rightholders- are copied and put in a single cassette2C1. These are then packaged to look di
diffffererenent t frfrom om tthe he ororiigiginanal l pproroduduccts ts aand nd sosolld d in in ththe e mmararkeket.t. %econ7)%econ7) ththerere e isis counterfeiting, when songs are copied into and packaged to look as close to the original counterfeiting, when songs are copied into and packaged to look as close to the original
as possible using the same label, logos etc. These products are misleading in the sense as possible using the same label, logos etc. These products are misleading in the sense that ordinary end users think that they are buying original products. The
that ordinary end users think that they are buying original products. The t0ir7t0ir7 form of form of music piracy is bootl
music piracy is bootlegging, where unautegging, where unauthorised recordings of perfhorised recordings of performance ormance by artists areby artists are made and subse/uently reproduced and
made and subse/uently reproduced and sold in the sold in the market. market. ll these happen withoutll these happen without the knowledge of the
the knowledge of the performers, composer or the performers, composer or the recording company.recording company. 0arlier
0arlier the the music music piracy piracy was was confined confined to to cassette cassette tapes tapes only. only. 4i4ith th the the advent advent of of C>s in the eighties it was thought that infringement of copyright of sound recordings C>s in the eighties it was thought that infringement of copyright of sound recordings would become things of the past. $ut in reality C> piracy is the greatest threat to todayDs would become things of the past. $ut in reality C> piracy is the greatest threat to todayDs mu
musisic c woworlrld. d. In In fafactct, , C>C>s s pipiraracy cy hahas s gogot t an an ininteternrnatatioionanal l vivigogourur. . 7o7ortrtununatatelely y or or unfortunately
unfortunately, C> industry is , C> industry is still in it still in it nascent stage in India. t present C> market nascent stage in India. t present C> market is 3ustis 3ust ( to ? percent of the overall music market in the country. C>s have not taken off mainly ( to ? percent of the overall music market in the country. C>s have not taken off mainly because of high prices. In India C>s are sold on an average price ranging between Rs.l&) because of high prices. In India C>s are sold on an average price ranging between Rs.l&)
to Rs.&&). Considering
to Rs.&&). Considering price of cassettes, the price of cassettes, the price differential between cassettesprice differential between cassettes
and C>s- is /uite high and prohibitive for ordinary music lovers. Cassette piracy in India and C>s- is /uite high and prohibitive for ordinary music lovers. Cassette piracy in India is as old as the cassette industry itself. ovt. policy put music industry in the small scale is as old as the cassette industry itself. ovt. policy put music industry in the small scale category and volume of a record companyDs cassette production was restricted to ?)),))) category and volume of a record companyDs cassette production was restricted to ?)),))) units per annum. This led to a wide gap in he demand supply front which was ultimately units per annum. This led to a wide gap in he demand supply front which was ultimately bridged by the pirate
bridged by the pirates.s.
0ven if music piracy percentage has declined from a high
0ven if music piracy percentage has declined from a high of ?)M in !""& of ?)M in !""& to about ('Mto about ('M in ())&, India is the worldDs sixth largest pirate market in value terms but third in volume in ())&, India is the worldDs sixth largest pirate market in value terms but third in volume terms. The popularity of Indian music has gone beyond the
terms. The popularity of Indian music has gone beyond the national boundaries. Therenational boundaries. There is large demand for Indian music in the neighbouring countries such as Pakistan, 4est is large demand for Indian music in the neighbouring countries such as Pakistan, 4est sia as well as far off countries like A9, Canada and the A:. Indian music is also sia as well as far off countries like A9, Canada and the A:. Indian music is also pirated
pirated in in some some of of these these foreign foreign countries, countries, the the notable notable among among these these being being Pakistan Pakistan andand the 4est sia. 9imilarly, foreign audio products are also sub3ect to piracy in Indian soil the 4est sia. 9imilarly, foreign audio products are also sub3ect to piracy in Indian soil
II
IIII11 ""IIRARACC# # AANND "D "RROOTT((CCTTIOIONN
Piracy
Piracy is is a a problem problem worldwide worldwide and and affects affects all all the the ma3or ma3or content content industries industries likelike sof
softwatware, re, teltelevievisiosion, n, recrecordording ing and and movmoviesies. . ThiThis s proprobleblem m has has assassumeumed d enoenormormousus proportions, with the ma3or A.9.
the year ())& due to piracy worldwide. K)M of these losses have resulted from piracy the year ())& due to piracy worldwide. K)M of these losses have resulted from piracy overseas and ()M because of piracy in the Anited 9tates. In India, ("M of the potential overseas and ()M because of piracy in the Anited 9tates. In India, ("M of the potential mar
market for ket for movmovieies s proproducduced by ed by mama3or A.9. movi3or A.9. movie e stustudiodios s is lost is lost to piracto piracy. y. ThThe e ITIT industry is similarly affected with a recent study revealing that ?&M of the software industry is similarly affected with a recent study revealing that ?&M of the software ins
instaltalled led in in ())())@ @ on on pepersorsonal nal comcomputputers ers PCPCs- s- worworldwldwide ide wawas s obtobtainained ed illillegaegalllly,y, amounting to nea
amounting to nearly N#) billion rly N#) billion in global losses duin global losses due to software pe to software piracy. iracy. lthough tlthough therehere are various laws in place for battling piracy, the enforcement of these laws in India is are various laws in place for battling piracy, the enforcement of these laws in India is weak. <owever, Indian courts have passed various 3udgments enforcing the provisions of weak. <owever, Indian courts have passed various 3udgments enforcing the provisions of the copyright law
the copyright law
Details to be inclu7e7 in soun7 recor7ing an7 :i7eo films>section 5?A Details to be inclu7e7 in soun7 recor7ing an7 :i7eo films>section 5?A
And
Ander er s. s. &( intr&( introduoduced ced by by the the CopCopyriyright ght mmendendmenment- t- ct ct !"K!"K#, #, the the folfollowlowinging particulars should
particulars should be be displayed displayed on on sound sound recording recording or or video video films films or or video video cassettes, ascassettes, as the case may be, or any
the case may be, or any container thereof namelyBcontainer thereof namelyB a- the name, and address of the
a- the name, and address of the person who has made the sound person who has made the sound recordingrecording b- the name and address of
b- the name and address of the owner of the copyright in such the owner of the copyright in such work work c- the year of its
c- the year of its first publication.first publication.
Vi7eo film or :i7eo cassette<so Vi7eo film or :i7eo cassette<so
5?A'?-a- if such work is a cinematograph film re/uired to be certified for exhibition under the a- if such work is a cinematograph film re/uired to be certified for exhibition under the provisions of the Cinematograph ct !"&(, a copy of
provisions of the Cinematograph ct !"&(, a copy of the certificate granted by the $oardthe certificate granted by the $oard of 7ilm Certification under s.
of 7ilm Certification under s. & of that & of that ct is respect ct is respect of any work of any work
b- the name and address of the person who has made the video film and a declaration by b- the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary license or consent from the owner of the copyright him that he has obtained the necessary license or consent from the owner of the copyright in such work for making such
in such work for making such video filmG andvideo filmG and c- the name and address of
c- the name and address of the owner of the copyright in such work.the owner of the copyright in such work.
AM(NDM(NT ACT ?3*? AND CO"# RI$!T "ROT(CTION ,OR AM(NDM(NT ACT ?3*? AND CO"# RI$!T "ROT(CTION ,OR
CIN(MAT
CIN(MATO$RA"!IC AND %OUND O$RA"!IC AND %OUND R(CORDIN?5$R(CORDIN?5$
The
(f- asB *
(f- asB *Cinematograp0 film means any /or. of :isual recor7ing on any me7iumCinematograp0 film means any /or. of :isual recor7ing on any me7ium pro7uce7 t0roug0 a process from /0ic0 a mo:ing image may be pro7uce7 by any pro7uce7 t0roug0 a process from /0ic0 a mo:ing image may be pro7uce7 by any means an7 inclu7es a soun7 recor7ing accompanying suc0 :isual recor7ing an7 means an7 inclu7es a soun7 recor7ing accompanying suc0 :isual recor7ing an7 @cinematograp0
@cinematograp0 s0all be construe7 as s0all be construe7 as inclu7ing any /or. pro7uce7 by inclu7ing any /or. pro7uce7 by any processany process analogous to cinematograp0y inclu7ing :i7eo filmsB1
analogous to cinematograp0y inclu7ing :i7eo filmsB1
This definition has been amended in ()!( and it now reads as 5any work of This definition has been amended in ()!( and it now reads as 5any work of
visu
visual recoral recording on ding on any mediumany medium and includes a sound recording accompanying visualand includes a sound recording accompanying visual recording and 5cinematograph%
recording and 5cinematograph% shall be construed as including any shall be construed as including any work produced by anywork produced by any process
process analogous analogous to to cinematography cinematography including including video video films...% films...% The The condition condition withwith respect to the medium and the process of creation of a visual recording are thus omitted respect to the medium and the process of creation of a visual recording are thus omitted by the amendment.
by the amendment. The
The newly newly inserted inserted section, section, section section (a- (a- defines defines 5visual 5visual recording% recording% as, as, 5...the5...the recording in any medium, by any method including the storing
recording in any medium, by any method including the storing of it by any electronicof it by any electronic means, of moving images or of the representations thereof, from which they can be means, of moving images or of the representations thereof, from which they can be perceived,
perceived, reproduced reproduced or or communicated by communicated by any any method.% 9ection method.% 9ection (xxa-, (xxa-, thus thus broadensbroadens the omitted portion of the definition of cinematographic work under section (f-.
the omitted portion of the definition of cinematographic work under section (f-. In
In the the Copyright Copyright mendmmendment ent $ill $ill of of ()!) ()!) there there was was a a proposal proposal for for making making thethe principal
principal director director in in a a cinematographic cinematographic work work to to be be a a co8author co8author since since at at present, present, thethe principal
principal director director is is only only paid paid fee fee for for his his work work and and his his creativity creativity goes goes unrecognied unrecognied inin spite of his intellectual contribution in the creation of the film. 4hile noticing that such a spite of his intellectual contribution in the creation of the film. 4hile noticing that such a provision
provision does does not not exist exist in in most most of of other other 3urisdictions 3urisdictions like like the the A9, A9, the the parliamentaryparliamentary standing committee endorsed its apprehensions that the proposed amendments would standing committee endorsed its apprehensions that the proposed amendments would cre
creatate e a a lot of lot of uncuncallalled ed and unnecand unnecessessary problary problems ems in in the Indiathe Indian n cincinemaema. . ThThus us thethe committee dropped the recommendation citing that the time was not
committee dropped the recommendation citing that the time was not ripe in India to ripe in India to makemake the principal director co8author of cinematograph film as *the producer is the kingpin the principal director co8author of cinematograph film as *the producer is the kingpin wh
who o ininveveststs s susubsbstatantntivive e momoneneyy, , raraisises es fifinanancnce e ththrorougugh h ininststititututioion, n, ututililiieses persons2expertise
persons2expertise and and takes takes such such initiative initiative and and responsibility responsibility for for making making the the work work andand chooses the director on
(. 7urther, the economic rights in respect of cinematographic film are expanded. The (. 7urther, the economic rights in respect of cinematographic film are expanded. The exclusive rights of owners o
exclusive rights of owners o f a cinematographic work and sound f a cinematographic work and sound recording under sectionrecording under section !#d- and section !#e- respectively are widened to include 5the
!#d- and section !#e- respectively are widened to include 5the right to store% the work inright to store% the work in any medium by electronic or other means. 9imilarly, the right to store the work in any any medium by electronic or other means. 9imilarly, the right to store the work in any medium by electronic or other means is included in respect of
medium by electronic or other means is included in respect of artistic works under sectionartistic works under section !# c-.
!# c-.
The
The expansion expansion of of economic economic rights rights by by covering covering 5the 5the right right to to store% store% thus thus addressesaddresses technological issues of 5storing%. The right to store the work assumes great importance technological issues of 5storing%. The right to store the work assumes great importance in a digital environment where copyrighted work can be reproduced flawlessly and in a digital environment where copyrighted work can be reproduced flawlessly and inexpensively and instantaneously transmitted worldwide. The words 5any medium by inexpensively and instantaneously transmitted worldwide. The words 5any medium by electronic or other means% are wide enough to address the possibility of evolution of new electronic or other means% are wide enough to address the possibility of evolution of new technologies.
technologies.
?. 1wnership and authorship are two different notions under copyright law. n author ?. 1wnership and authorship are two different notions under copyright law. n author need not necessarily be the first
need not necessarily be the first owner of copyright. 9ection !' provides for owner of copyright. 9ection !' provides for ownership of ownership of copyright. combined reading of sections !'b- and !'c- clarifies that in case of copyright. combined reading of sections !'b- and !'c- clarifies that in case of commissioned cinematograph work, the commissioning party and in case of employer 8 commissioned cinematograph work, the commissioning party and in case of employer 8 employee relationship, the employer is considered to be the first owners of the
employee relationship, the employer is considered to be the first owners of the work.work. The ()!( amendments have inserted a new proviso stating thatB *in case of any The ()!( amendments have inserted a new proviso stating thatB *in case of any work incorporated in a cinematograph work, nothing contained in clauses b- and work incorporated in a cinematograph work, nothing contained in clauses b- and c-shall affect the right of the author in the work referred to in clause a- of sub section shall affect the right of the author in the work referred to in clause a- of sub section !-of section !?.+
of section !?.+
<ence the general provisions in section !' a- will not apply in relation to the <ence the general provisions in section !' a- will not apply in relation to the rights of the authors of literary, musical, dramatic and artistic works, which have been rights of the authors of literary, musical, dramatic and artistic works, which have been inc
incorporporaorated ted in in cincinemematoatogragraph ph filfilm m and and the the resrespecpectivtive e autauthorhors s wiwill ll concontintinue ue to to bebe considered as the first owners of the said works. 4hen a work is incorporated in a considered as the first owners of the said works. 4hen a work is incorporated in a cinematograph film, the ownership of such work reverts back to the author even when cinematograph film, the ownership of such work reverts back to the author even when such work was commissioned or was created under employment
such work was commissioned or was created under employment
(x0austion of copyrig0t (x0austion of copyrig0t
Ti
Till ll ()!( ()!( amendments, amendments, the the doctrine doctrine of of exhaustion exhaustion was was applicable applicable only only to to the the literaryliterary,, dramatic and artistic works. 0xhaustion basically means that after the first sale by the dramatic and artistic works. 0xhaustion basically means that after the first sale by the right holder or by his exhaustion authoriation, his right comes to an end and he is not right holder or by his exhaustion authoriation, his right comes to an end and he is not entitled to stop further movement of goods. Thus, once an intellectual property right entitled to stop further movement of goods. Thus, once an intellectual property right holder has sold
holder has sold a physical product to which its a physical product to which its intellectual property rights are attached, heintellectual property rights are attached, he cannot prohibit the subse/uent resale of that product. The right is exhausted by the first cannot prohibit the subse/uent resale of that product. The right is exhausted by the first consensual marketing. third party may, after legitimately purchasing these goods, sell consensual marketing. third party may, after legitimately purchasing these goods, sell them in any of the country8markets. 0xhaustion may be either domestic or international. them in any of the country8markets. 0xhaustion may be either domestic or international. Ander domestic exhaustion,
Ander domestic exhaustion, In
In the the Indian Indian copyright copyright regime, regime, subse/uent subse/uent to to the the decision decision inin WaWarner rner Bros.Bros. Entertainment Inc.
Entertainment Inc. :1:1 Santos Santos 1$1$, the application of the doctrine of exhaustion was, the application of the doctrine of exhaustion was =imited to literary, musical, dramatic and artistic works. The doctrine of exhaustion had =imited to literary, musical, dramatic and artistic works. The doctrine of exhaustion had no applicability to cinematographic films and to sound recordings. In
no applicability to cinematographic films and to sound recordings. In Warner Bros.Warner Bros. thethe <igh Court of >elhi was confronted with the /uestion whether a cinematograph film, in <igh Court of >elhi was confronted with the /uestion whether a cinematograph film, in which copyright subsisted in India, once put in the market by the owner of the copyright which copyright subsisted in India, once put in the market by the owner of the copyright was sub3ect to the doctrine of exhaustion. The case deserves a detailed analysis in this was sub3ect to the doctrine of exhaustion. The case deserves a detailed analysis in this con
contextext. t. The The plaplaintintiffiffs s thethereirein n clclaimaimed ed copcopyriyright ght in in IndIndia ia undunder er the the IntInternernatiationaonall Copyright 1rder, !""! in films which were first published in the A9. The defendant Copyright 1rder, !""! in films which were first published in the A9. The defendant legally bought these >E>s from the A9, and imported them into India. They then made legally bought these >E>s from the A9, and imported them into India. They then made available the particular >E>s which had been legally bought by them- to their Indian available the particular >E>s which had been legally bought by them- to their Indian customers. The plaintiffs alleged that these acts of import and hiring out amounted to an customers. The plaintiffs alleged that these acts of import and hiring out amounted to an infringement of their copyright. The defendant stated that *the >E>s were bought
infringement of their copyright. The defendant stated that *the >E>s were bought legallylegally O there was no
O there was no copy of those particular >E>s. That being the copy of those particular >E>s. That being the case, it was contended thatcase, it was contended that no infringing copy had been made+. 7urther, relying on the *first8sale doctrine+, the no infringing copy had been made+. 7urther, relying on the *first8sale doctrine+, the defendant argued that once a >E> has been legally sold to them by the plaintiffs, the defendant argued that once a >E> has been legally sold to them by the plaintiffs, the plaintiffs% rights in
plaintiffs% rights in that that particular >E> particular >E> were were exhausted. exhausted. The The defendant defendant also also argued thatargued that onc
once e the plainthe plaintiftiffs fs plaplaced ced thetheir ir copcopies ies in in the the A9 A9 marmarketket, , and and thethey y werwere e purpurchchaseasedd leg
legitiitimatmatelyely, , 5lo5long ng armarm% % resrestritrictictions ons expexpresressed sed on on the the conconcercerned ned copcopies ies arare e of of nono conse/uenceG it lost or *exhausted+ the right to control further sale or commerce in that conse/uenceG it lost or *exhausted+ the right to control further sale or commerce in that
copy.
copy. ccordingly, the plaintiffs could not ccordingly, the plaintiffs could not exercise control over exercise control over the particular >E>s the particular >E>s after after the first sale had been completed. The defendant also raised the explanation to section !# the first sale had been completed. The defendant also raised the explanation to section !# of the Copyright ct which states, *7or the purposes of this 9ection, a copy which had of the Copyright ct which states, *7or the purposes of this 9ection, a copy which had been sold once shall be deemed to be a copy alr
been sold once shall be deemed to be a copy already in circulation+ . It waeady in circulation+ . It was urged that thes urged that the doctrine of first sale applies in India, and there was no case of infringement. The court doctrine of first sale applies in India, and there was no case of infringement. The court not
noted ed the the at at undunderer section *'7- copy rig0tBsection *'7- copy rig0tB in respect of cinematographic works in respect of cinematographic works means, right forB
means, right forB I. making a copy of
I. making a copy of the filmGthe filmG
ii. 9elling or giving on hire or offer for sale or hire any copy of the film, regardless of ii. 9elling or giving on hire or offer for sale or hire any copy of the film, regardless of whether such copy has been sold or
whether such copy has been sold or given on hire on earlier occasionsGgiven on hire on earlier occasionsG iii. communicating the film to the
iii. communicating the film to the public.public.
4hereas the copyright in respect o f a literary, dramatic or musical work would mean 4hereas the copyright in respect o f a literary, dramatic or musical work would mean under section !# a- the rightB
under section !# a- the rightB
I. to reproduce the work in any m arterial form including the storing of it in any medium I. to reproduce the work in any m arterial form including the storing of it in any medium by electronic me
by electronic meansGansG ii. to issue copies of
ii. to issue copies of the work to the public not being copies already in the work to the public not being copies already in circulationGcirculationG iii. to perform the work in public,
iii. to perform the work in public, or communicate it to the publicGor communicate it to the publicG iv. to make any cinematog
iv. to make any cinematograph film or sound recording in raph film or sound recording in respect of the workGrespect of the workG v. to make any translation of the workG
v. to make any translation of the workG vi. to make any adaptation of the workG vi. to make any adaptation of the workG
vii. to do, in relation to a translation or an adaptation of the work, any of the acts vii. to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub
specified in relation to the work in sub clauses I- to vi-.clauses I- to vi-. Thus,
Thus, as as per per the the court court the the content content of of copyright copyright in in case case of of cinematographic cinematographic worksworks is different from that in the case of literary works, dramatic works
is different from that in the case of literary works, dramatic works etcetc. The phrase *copy. The phrase *copy in
in circirculculatiation+ on+ wawas s foufound nd in in desdescricribinbing g the copyrthe copyrighightt tistis-a--a-vieviess literary, musical andliterary, musical and dramatic works. It found no application in cinematographic works. 1n a plain reading of dramatic works. It found no application in cinematographic works. 1n a plain reading of section !#, the phrase was used to limit the copyright in the case of literary, musical and section !#, the phrase was used to limit the copyright in the case of literary, musical and dramatic works only. *This limite
dramatic works only. *This limited exhaustion negates the applicability of d exhaustion negates the applicability of the principle inthe principle in regard to other classes of copyrights. Thus, Parliament having intervened in one category regard to other classes of copyrights. Thus, Parliament having intervened in one category
of copyrights to grant
of copyrights to grant a limited kind of a limited kind of 5exhaustion% 5exhaustion% and consciously chosen not to and consciously chosen not to extendextend it to others, sleight of 3udicial reasoning cannot extend its application.+
it to others, sleight of 3udicial reasoning cannot extend its application.+ The
The court court further further stated stated thus thus 9ection 9ection !#!-d- !#!-d- provides provides the the at at the the copy copy right right owner owner has, in case of cinematographic films, the exclusive right to sell or give on hire or offer has, in case of cinematographic films, the exclusive right to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasion. The copyright owner therefore continues to be entitled given on hire on earlier occasion. The copyright owner therefore continues to be entitled to exercise rights in a particular copy of the film regardless of whether it has been sold to exercise rights in a particular copy of the film regardless of whether it has been sold previously8 in express contr
previously8 in express contrast to literary works, whiast to literary works, which are *already in ch are *already in circulation.+circulation.+ <owever,
<owever, with with the the ()!( ()!( amendments amendments the the position position has has changed. changed. s s statedstated earlier, the amendments replace the term 5hire% with 5commercial rental% in section earlier, the amendments replace the term 5hire% with 5commercial rental% in section !#d-ii- and !#e-!#d-ii- which relate to cinematograph film and sound recording respectively. ii- and !#e-ii- which relate to cinematograph film and sound recording respectively. 7urther, the words, 5regardless of whether such copy has been sold or given on hire on 7urther, the words, 5regardless of whether such copy has been sold or given on hire on earlier occasions% as used under sections !#d-ii- and !#e-ii- prior to amendments are earlier occasions% as used under sections !#d-ii- and !#e-ii- prior to amendments are omi
omittetted d by by the the ()!()!( ( ameamendmndmentents s makmaking ing the the docdoctritrine ne of of exexhauhaustistion on appappliclicablable e toto cinematograph films and sound recordings
cinematograph films and sound recordings
Assignment of copyrig0t Assignment of copyrig0t
Intellectual
Intellectual property property laws laws confer confer exclusive exclusive rights rights to to the the owners owners of of intellectualintellectual property to
property to exploit their exploit their work. =ike work. =ike other ma3or other ma3or forms of forms of intellectual property, copyrightintellectual property, copyright can be transferred by
can be transferred by license or assignment. license or assignment. license permits the licensee to make license permits the licensee to make use of use of copyrighted work under a given set of terms and conditions m usually agreed upon by copyrighted work under a given set of terms and conditions m usually agreed upon by thethe licensor 8 the copyrighted holder and the licensee. 4hereas an assignment confers full licensor 8 the copyrighted holder and the licensee. 4hereas an assignment confers full rights in the underlying copyrighted work. $y assigning the copyright, the copyright rights in the underlying copyrighted work. $y assigning the copyright, the copyright owner transfers his titles to the assignee. 1nce assigned, then the original owner no owner transfers his titles to the assignee. 1nce assigned, then the original owner no longer owns any control in relation to the work. n assignment permits greater freedom longer owns any control in relation to the work. n assignment permits greater freedom to the assignee in marketing o f a work than could be a case with a license. ssignment to the assignee in marketing o f a work than could be a case with a license. ssignment can be effected in respect of an existing work or in respect o f a future work.9imilarly can be effected in respect of an existing work or in respect o f a future work.9imilarly assignments may be in
assignments may be in respect of whole rights or respect of whole rights or partial rights. ssignmepartial rights. ssignments can either bents can either be general or sub3ect to limitations. Ander section !K of the Copyright ct which provides general or sub3ect to limitations. Ander section !K of the Copyright ct which provides fo
