International Conference on the Future of Copyright-Bollywood represented

German Ministry of Justice, recently organised the International Conference on the Future of Copyright in Berlin where along side some of the stalwarts of the IP world such as Prof. Reto Hilty, Director of Max Planck Institute Munich, Dr. Francis Gurry, Director General at WIPO, Shira Perlmutter, Executive Vice President of IFPI, Mr. Supran Sen, Secretary General of Film Federation of India and also of Producer's Guild, attended the conference as a guest speaker representing the Indian Film fraternity wherein he presented a paper on the Future of Copyright in the Indian film Industry. The paper highlighted the existing provisions in the Indian Copyright law for films and also the various steps taken by the film industry towards stringent copyright enforcement. The paper also highlights the various proposed legislative measures by Copyright Office in direction of Technological protection measures and Digital Rights Management as a tool to protect copyright content along the lines of similar measures in World Copyright Treaty and WPPT.

No freedom of expression for National Anthem

Ram Gopal Varma, a well known film maker who has made some of the path breaking films in Bollywood, moved Supreme Court against a ruling by Central Board of Film Certification (CBFC) set up under the Cinematography Act, 1952 which had denied Varma the permission for release of the promo on the grounds that the song, Jana Gana Mana Rann, in his forthcoming film titled Rann, had distorted and tampered with the National Anthem and thus violative of the Cinematograph Act and the rules relating to the national anthem contained in the Prevention of Insult to National Honour Act, 1971.

As per the reports, the Supreme Court disapproved of said song saying that nobody has the right to tinker with the National Anthem.The Bench said, “We have read it (the script of the song). It gives a total negative sense. It appears that every line of the national anthem has been proved wrong.”
The Court refused to grant any urgent legal relief to the director and told him to first approach the appellate tribunal, set up under the Cinematography Act, 1952 to challenge the board's decision and also asked the tribunal to decide on Varma's claim the board's decision within a month.

The director challenged the board's decision under Article 19(1) (a) of Constitution of India which guarantees freedom of speech and expression. He has claimed that the song is an independant body of work and merely uses the national anthem in a respectful manner for the purpose of artistic expression. It was also contended on his behalf that Board's decision made television channels and mobile service providers averse to the promos for the fear of insulting the National Anthem.

It would be interesting to see how Varma's artistic expression violates the restriction to freedom of speech under Article 19(2) and section5B of the Indian Cinematograph Act and undermines 'the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence' and also how it violates section 3 of Prevention of Insult to National Honour Act.

The moot question would be whether adaptation of the lyrics of National Anthem amount to 'distortion' and whether such adaptation amount to violation of 'public order, decency or morality'. Section 292 of Indian Penal Code defines "obscenity" as 'a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is if taken as a whole tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances to read, see or hear the matter contained or embodied in it'.

Further, Government of India, Ministry of Information and broadcasting, on 6
December, 1991 has by order issued guidelines to the Board [44 S.O. 836(E)] for the purpose of film certification:
"(a) The objectives of film certification will be to ensure that :
- the medium of film remains responsible and sensitive to the values and standards of society;
- artistic expression and creative freedoms are not unduly curbed.
(b) In pursuance of the above objectives, the Board of Film Certification shall ensure that:
-- Scenes -
(c) showing involvement of children in violence as victims or as perpetrators or as forced witness to violence, or showing children as being subjected to any form of child abuse;
-human sensibilities are not offended by vulgarity, obscenity or depravity;
- scenes degrading or denigrating women in any manner are not presented.
- Visuals or words contemptuous of social, religious or other groups are not presented.
- Visuals or words involving defamation of an individual or a body of individual or contempt of court are not presented.
(d) The Board of Film Certification shall ensure that the film :
- is judged in the entirety from the point of view of its overall impact; and
- is examined in the light of the period depicted in the film and the contemporary standards of the country and the people to which the film relates, provided that the film does not
deprave the morality of the audience."

It would be interesting to see how the balance between artistic expression and restriction to the same is maintained by the Appellate Board for Film certification.

Copyright provisions for films

Under the Indian Copyright Act, films/movies are protected as 'cinematograph' works and relevant provisions pertaining to the same in the Copyright Act are as follows:

	Relevant Section	Provision
Definition	2 (f) 2 (y)	cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films; "work" means any of the following works, namely:- (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film
Exclusions
Dramatic work	2 (h)	“dramatic work” includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film
Photograph	2 (s)	"photograph" includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film;
Work in which Copyright subsist	13 (1) (b)	copyright shall subsist throughout India in the following classes of works, that is to say, (a) original literary, dramatic, musical and artistic works; (b) cinematograph films
Work in which Copyright shall not subsist	13(3) (a)	in any cinematograph film a substantial part of the film is an infringement of the copyright in any other work;
Meaning of copyright for films	14 (d)	For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely In the case of cinematograph film, - (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) 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 given on hire on earlier occasions; (iii) to communicate the film to the public;
Ownership of Copyright in films	17 read with 2 (d) (v) 2 (uu)	The author of a work shall be the first owner of the copyright therein "author' means … in relation to a cinematograph film the producer "producer', in relation to a cinematograph film or sound recording, means a person who takes the initiative and responsibility for making the work;
Work on hire	17 (b) 38 (4)	Cinematograph film 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. Once a performer has consented to the incorporation of his performance in a cinematograph film, the provisions of sub-sections (1), (2) and (3) shall have no further application to such performance.
Term of copyright in cinematograph films.	26	In the case of a cinematograph film, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the film is published.

Films can be registered under the Copyright Act with the Indian Copyright office as per procedure set out here by paying a fee of Rs. 600 to the Copyright office.

Title and Script Registration

India Motion Pictures Producers Association [IMPPA], one of the oldest trade bodies of Bollywood, have started title registration for various Film titles for a certain fee but it is not clear under which legislation this registration would be done, except ofcourse, it continues to register the film titles with itself. Other than IMPAA, The Film & Television Producers Guild of India, also provides similar facility for film producers to register their film titles. This facility ensures against misappropriation of film titles by other members of such trade bodies, which also provides mediation and settlement procedures to settle such title related disputes amongst members but it is not known how such title related disputes can be mitigated between members of two different trade bodies.

Copyright infringement case

20th Century Fox has filed a case against Ravi Chopra's film "Banda Yeh Bindas Hai" in Mumbai High Court for copyright infringement of its Oscar winning film, "My Cousin Vinny" and has claimed a compensation of of Rs. 7 crores.

Ravi Chopra, CEO of B.R. Films, has opposed the case saying that they officially gained rights to make this film.

This case, if not settled out of Court, would be an important copyright case for the Bollywood, particularly on the aspect of 'substantial similarity' test to be decided in India. The list of Bollywood films "inspired" from Hollywood flicks are numerous, as listed in here.