Wednesday 4 September 2013
Zanjeer decision of Bombay High Court
Tuesday 31 May 2011
Copyright case against Yamla Pagla Deewana
The film was recently premiered in television by Sony Entertainment Television, who also have been impleaded in the case before Bombay High court alongwith Yash Raj Studios, who have acquired the Home video rights of the film.
Renewing the Blog
Sunday 7 March 2010
Burden of Service Tax
(a) transferring temporarily; or
(b) permitting the use or enjoyment of,
any copyright defined in the Copyright Act, 1957, except the rights covered under subclause
(a) of clause (1) of section 13 of the said Act.”
This provision affects entertainment industry and film entertainment industry significantly. Exploitation of entertainment content is based on transfer of the copyright in such content to the exploiter either by way of license or assignment. Imposition of 10.3% service tax on all such transactions/transfers would mean than effectively Licensor/Assignor shall impose a service tax of 10.3% on the value of copyright transfer which would in turn make entertainment content more expensive for the end consumers i.e cine-goers.
When distributor would license a film to the exhibitors, they will collect a service tax of 10.3% on behalf of the government. The exhibitors in turn would pass on the tax so paid on the final ticket prices thereby raising the prices for tickets or any other entertainment product such DVDs by 10.3%. This would be in addition to the Entertainment tax of 25% (varying from state to state) on the gross receipts and further VAT of 4% on the transaction value as applicable in most of the states.
The Budget speech was a sugar coated knife that would bleed the entertainment industry. Finance Minister, in his speech said :
This effectively means that Films imported on cinematograph films for exhibition or on digital media such as digital masters, stampers customs duty for duplication and distribution of CD/DVDs would now be charged only on the value of the carrier medium and the customs duty on the balance value will be exempt. Promotional material such as making of films etc. imported free of cost in the form of electronic promotion kits (EPK)/Betacams are being fully exempted from basic customs duty and CVD. Similar tax treatment, as provided to films above, is being extended to music and gaming software (other than pre-packaged form) for retail sale imported on digital media for duplication.
Pre-packaged Movies, Music and Games (meant for use with gaming consoles) will continue to be charged to import duties on value determined in terms of the provisions of the Customs
Act.
However, the importer would have to pay a service tax of 10.3% for licensing the copyright of the film on the transaction value of such licensing. Therefore, if say a blockbuster like Avatar is imported for DVDs to be sold ideally, Importer can do so in two ways-(a) by importing physical CDs/DVDs of the film to be sold in bulk or retail (b) Licensing the copyright in the film for vide rights exploitation in the territory of India and asking Copyright owner to send the master tape for replicating the same in India and then distributing the physical copies.
As per the Budget, importing physical DVDs/CDs remains taxable as earlier and for licensing the copyright, the service tax would be charged. The rationale behind such imposition is not clear as to how importation of copyrightable materials amount to 'services'.
This would affect the entertainment industry and particularly film industry adversely in more than one way. Apart from the fact that licensing of copyright in films and other entertainment product would be costly affair, for end consumer, increased cost for access to entertainment would indirectly fuel piracy in entertainment product as consumers would be driven towards pirated and cheaper access to such products.
Monday 28 December 2009
Proposed Copyright amendments-the road ahead for entertainment industries
The amendments are result of consistent lobbying by the entertainment industry particularly the artists to have a better bargaining ground based on the legislation.
The proposed amendments concerning the entertainment industry are in the following areas:
a) Introduction of anti-circumvention laws more in line with the World Copyright Treaty and World Performers and Phonograms Treaty of 1996
b) Version recording to be brought under compulsory licensing and interest of copyright holder to be protected while making a sound recording of any literary, dramatic or musical work.
c) Statutory licensing for musical works to allow public access to such over Radios and Televisions.
c) Producers and Directors to be joint Authors of a cinematograph Film and copyright term shall be 70 years for films provided Producers share the royalty with the Directors
d) Writers to retain their right to receive royalties in their contracts with producers through collective societies for any commercial exploitation of their work.
The amendments as proposed if introduced would have significant effect for all the stakeholders in the film business.
The introduction of anti-circumvention laws might be good for the production houses but would it be realistic to have these technological protection measures in the first place? In all probabilities, introduction of these technologies would shoot up the prices which in turn would effect the sale of DVDs and similar formats, the business of which are in any way in red in the present time. In a country where pirated DVDs of films are out in market from bootleg recording in cinema halls or the prints are itself copied due to logistical gaps, what purpose would introduction of Technological protection measures and anti-circumvention laws have to tackle piracy is something only time will tell.
Secondly, what is the basis for extension of copyright of films to 70 years if directors are co-authors? How does making Directors, the co-authors in a film, justify the extension of the term of copyright to 70 years? If a director can be an author in a film why cannot a script-writer, a cinematographer or a screenplay writer not a author? By making Director alone a co-author, the roles of other contributors in the making of a film is undermined. Hopefully, the legislation would only have a prospective effect. Any retrospective effect to extend copyright term to the existing films would have a counter-productive effect in terms of cultural creativity.
Again extension of the term of copyright to 70 years has no reasonable basis. why 70 years and why not 80/90 or 100 years? Afterall there is no restriction for the upper limit for the copyright term in the international conventions
The proposal giving the authors or literary and musical works right to royalty for any commercial exploitation of their work would be seriously prejudicing the interests of the producers as this would change the one-time payment commercial model that is presently followed as it would require a complicated system to be in place where every commercial exploitation has to be traced, accounted for and revenue collected. This would also require revamping the various trade bodies and collective copyright societies that exists whose functioning has to be made more transparent and systematic for such a complicated system to be in place.
Lastly, the proposal for statutory licesnsing of musical works to be available for radio and television broadcast intends to provide a legislative wording for "public interest" aspect opined by Justice S. B. Sinha of the Supreme Court in the case of Entertainment Network (India) Ltd. Vs M/s Super Cassette Industries Ltd. Although the decision deliberated upon the need for public access to musical works and underlined a theme of public interest in such access, the decision itself did not provide any hint or guideline to determine the rates at which such licesning should be allowed by the music companies, which was primarily the moot question of the dispute between the music companies and Radio companies. The decision left it to the Copyright Board to decide the rates which till date remains unsettled.
Hopefully before being legislated and implemented, the wording are reviwed to avoid the confusions as raised in the present post.
Tuesday 21 July 2009
Script Plagiarism-Agyaat
The upcoming Hindi film by Ram Gopal Varma, "Agyaat" has been surrounded with controversy of plagiarism pertaining to its script as reported in Times of India reported here
It has been alleged by film writer, Sajid Warrier that his script has been plariarised by Varma for the above film. Sajjid went to Film Writer's Association with his allegation, which after scrutiny of the script has held in favour of Sajjid and has asked Varma to compensate Sajjid to the extent of Rs.8 Lakhs. Varma has moved Bombay High Court against this decision which has asked FWA to file its reply.
This case brings to light too many issues surrounding film scripts and their alleged plagiarism by producers or directors in films, such as “Om Shanti Om” reported here and also recently with “13B-the New Address of Fear”as reported here.
While Indian Copyright Act provides for registration of any work [sec.44-45] and copyright registered work to be prima facie evidence of ownership in the work [sec.48], the question remains whether in absence of such registration, how the priority of ownership in the work can be determined. Also, whether trade bodies such as FWA can sit upon the judgment on the question of plagiarism and consequently, priority of ownership.
Sunday 31 May 2009
International Conference on the Future of Copyright-Bollywood represented
Monday 25 May 2009
No freedom of expression for National Anthem
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'.
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.
Thursday 14 May 2009
Copyright provisions for films
| 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) |
|
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 "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.