To briefly introduce, Copyright is a form of intellectual property that provides legal protection to the original works of authorship, once the author of the work concerned expresses the creative work in a tangible form. The “creative works” include books, music, paintings, sculptures, and films. In order for a work to be eligible for copyright, it must qualify as original, should come from an author and qualify as authorship; and must be fixed in a tangible form of expression.
The Copyright Act, 1957 (Act) along with Copyright Rules, 2013 govern the laws and the rules related to copyright protection in India. The Copyright Act, therefore, provides rights to the authors and owners, as well as certain provisions in the Copyright Act (such as section 52 of The Copyright Act) allow fair use. Copyright represents a bundle of rights and the Rights under the Copyright Act are divided into two parts- Economic and moral rights. Economic rights allow the right owners to derive financial rewards from the use of their works by others. It gives the right to assign, authorize and the rights to publish, adapt, translate, license, etc. Moral rights preserve and protect the integrity of the creator/author of the work.
Classes of works under copyright are divided into different categories- 1. Literary works and 2. Dramatic works – where the person who creates/writes work is the author of a literary or dramatic work, 3. Musical works- the composer is the author of a musical work, 4. Sound Recordings- the person recording the sound in the form of recorded speech, audio or podcast is the author of the said sound recording. Permission from the author of musical work is required to be obtained for the Copyright protection of sound recording, in case the sound recording also contains music, 5. Artistic works- an artist is the author of artistic work other than photographs, a person taking photographs is the author of such photograph, 6. Cinematograph Films- the producer is the author of cinematograph film and sound, and the person who caused the work to be created is the author of computer-generated works.
A copyright stays protected during the lifetime of the author/creator plus 60 years from the beginning of the calendar year, following the year of death of the author. Further, posthumous/anonymous/pseudonymous authors’ works would be protected for 60 years from the beginning of the calendar year, following the year of first publication. After such a period is over, the work goes into the public domain which can be used by anyone.
Copyright and Idea
Copyright does not apply to mere ideas, but rather to the expression of such thoughts/ideas in a tangible form. Only the material form in which the ideas are translated is protected by Copyright. Two authors may come up with the same idea, but the difference lies in how they are put into the physical form and communicated to the public. The test to decide what constitutes infringement was laid out in India until the case of R.G. Anand v. M/s Delux Films and others (1978). The decision marked the beginning of a new era under the Copyright law, clarifying that copyright does not apply to mere ideas, but rather to the expression of it. It was explained that even though both the play and the movie had similar themes, it would not mean that the original play had been infringed. The court also discussed the principle ‘Scène À Faire’, translating to “scene to be made”, which essentially means that certain creative works are held to be not protectable because they are mandated by or are customary to a particular genre, like dark themes in horror movies. The following principles were established in the landmark judgement and supported the idea-expression doctrine-
- No copyright exists in an idea, subject matter, themes, plots, facts and events, but rather in the arrangement, manner and expression of the idea.
- To determine if copyright infringement has occurred, the court shall observe whether the defendant’s work is nothing but a literal imitation of the copyrighted work with trivial or minor variations.
- When the reader/viewer gets an unmistakable impression that the subsequent work appears to be a copy of the original.
- No question of copyright violation arises in case a work is presented and treated differently, such that it becomes completely novel, regardless of the theme being the same as the other work.
- No infringement of copyright has occurred if dissimilarities are evident in another work, negating the intention of copying the original.
The decision remains consistent with the current Copyright law, establishing classes of work that are eligible for copyright protection, with ideas not included in any of them. The guidelines established by the Court in this decision are still valid and are followed by Indian courts even today.
Trends in the Media and Entertainment industry and the role of Copyright Law.
Media and Entertainment has been ever ever-growing industry in India, and with promising statistics that are only expected to grow further. India is the world’s second-largest internet market, second-largest subscription television market, and mobile-first market i.e., prioritizing mobile users and circulating tailoring marketing content, communication channels, and strategies to mobile devices. These industries have generated an output of a whopping USD 49.9 billion and a remarkable figure of 2.6 million jobs as of the report of 2021. When it comes to online curated content, about 148 million Indians subscribed to online content creation services in 2020, which amounted to INR 1.75 trillion total revenue impact on the sector. There has been a massive 159% revenue growth generated following the entry of Online content creation (OCC) players, predominantly regional players. The industry is also expected to grow to INR 707 billion by 2024. The creative economy is poised to double by 2025. It continues to be the force behind providing knowledge, information and entertainment.
When entertainment content is created, it flows through various release windows. To start with, the content is released in theatre (traditionally) as big numbers come from the theatrical release, and then content flows from television to Over-the-top platforms to airlines and hotel entertainment systems. The content is monetized at each level when it is released. These creative economies not only entertain the public and create employment opportunities but also promote India’s creative industries. Digitalization has helped entertainment content industries to reach a global audience.
The Online Gaming industry has been roaring as well, with the number of online gamers in India expected to reach 500 million and the trend of adopting online avatars in the digital space will cross 50 million users. NFTs, which have been introduced fairly recently, are also not behind. Known as ‘Non-Fungible Tokens’, these assets are accumulated over a network of blockchain. The NFT market has increased significantly in a short period of time and gained momentum. The global market for NFTs touched the USD 2.5 billion mark in the first half of 2021. The industry generated over USD 24 billion in trading volume in 2021 as compared to USD 94.9 million the year before through NFT-sponsored tickets in gaming and music etc.
The Legal and Regulatory framework in the Media and Entertainment industry is divided into Film, Television and Digital. The Cinematograph Act, 1952 governs the certification and exhibition of films in India, The Telecom Regulatory Authority Act, 1997 regulates the television industry and the IT Act, 2000 and IT Rules, 2021 have provisions for online curated content platforms. Other policies have an impact such as telecom policy, national IPR policy, cyber security and data protection policy. All of these policies are important and have an overreaching effect on The Copyright Act, 1957 as well.
The industry suffers the most from the effects of Piracy. Piracy is unlawful duplication of copyrighted work that is then sold at substantially lower prices. Indian media and entertainment industry loses $ 2.8 billion of its annual revenue to piracy. Free accessibility to the internet has also enabled unrestricted piracy of movies, shows and music these days, through computer and mobile applications and torrents. Piracy has seen an increase of 62%, especially during the pandemic. The recently passed Cinematograph (Amendment) Bill, 2023 has introduced two Sections 6AA and 6AB which will respectively deal with the ‘Prohibition of unauthorized recording’ and ‘Prohibition of an unauthorized exhibition of films’. It also makes the attempt and abetment of these acts punishable. It has expanded the protection of copyright as well as makes piracy punishable. The introduction of these amendments is welcomed as they would be beneficial in tackling significant issues that have been ailing the film industry for ages.
With the Media and Entertainment industry getting more dynamic with time and introducing new aspects of it, the laws and policies around it need to keep up. The above has been a culmination of the basics of the Copyright Act in India and its involvement with the Media and Entertainment industry, which has been omnipresent. An idea, unrecorded works, performances, titles, names, symbols, facts and figures cannot be Copyrighted. Every type of intellectual property has a contribution to the economy; with the Media and Entertainment industry largely being based on music, films and literary works being a part of intellectual property. With time, these intellectual properties are exploited for an economic impact to create jobs, and revenue generation which in turn also increases the countries’ GDP growth. An intellectual property needs to be protected and monetized, for it to reap benefits that go to the existing economies as well as the authors of such work.