ROLE OF COPYRIGHT IN THE ENTERTAINMENT INDUSTRY

INTRODUCTION

India’s entertainment industry is globally renowned and is one of the fastest growing industries.
Intellectual Property rights have a very important space in the entertainment industry. They
provide legal protection against several downfalls such as piracy and copying of story lines.
These rights also largely prevent unauthorised use of any creative work. 
Piracy is the unauthorised duplication of any creative work.

It is one of the biggest hindrances the Indian entertainment industry faces today. It affects our creators in several ways, but the largest issue by far is the fact that due to piracy, they lose many of the profits that are rightly owed to them. India has also been cited as one of the biggest hubs for piracy in the world. It has also been estimated that globally, in 2022, the entertainment industry will lose 51.6 billion
dollars, only due to piracy. One major cause for such a loss is attributed to the fact that India, a majorly populous nation, has weak intellectual property laws and regulations. This is also why India has been placed on USA’s ‘priority watch list’ for intellectual property protection.

The term ‘copyright’ is defined under Section 14 of the Copyright Act, 1957. Copyright means
the exclusive right over a specific material or work and the right to authorize the doing of any
work. Copyright is said to be infringed when a substantial part of the material is utilised without
due permission from the owner. Section 51 of the Copyright Act discusses copyright infringement.
The media and entertainment industry uses copyright as a tool to protect original creations and
prevent unauthorised access. When a creation is protected by copyright, only the copyright holder has an exclusive right to it. It is widely understood that a lack of the protections afforded
through copyright can result in major losses. Thus, most works of entertainment are generally
protected legally by copyright. In case of any damages, it has been laid down that only the owner can make claims for damages caused by infringement.

The Supreme Court has created tests for determination of copyright.

In R.G Anand v. M/sDelux Films the Apex Court decided that copyright cannot be claimed on an idea, subject matter, theme or any historical facts and that it is only limited to the expression of an idea.
Ideas can be developed in different ways, especially when the source is common, as in
historical movies. Thus, for infringement to occur, the piracy should have been substantial.
There is no case of copyright when only the themes are the same and the expressions are not.
It must be proved that the similarities are not just circumstantial.

In Zee Telefilms v. Sundial Communications Private Limited, the Bombay High Court
explained two main tests to determine whether copyright infringement has occurred. They are:
1. Average viewer test- A movie creates an impact on the psyche of the viewer. Thus, if the
impression left by the other movie is the same, it can be considered a copyright
infringement.
2. Substance assessment test- This test is based on the amount and importance of the part that
has been copied. If the other movie is hinged on the part that was copied it can be considered
an infringement. But on the other hand, if the movie will not change on removal of the
copied segment, it is not an infringement of copyright.
With the boom of the technological global age, communication has grown more rapid and
instantaneous. Piracy also includes production, distribution, import and export of pirated work.
The courts have clearly laid out instances where an act shall not amount to infringement. Such
as when the work is used for personal use, education, reviewing or even for giving criticism.

The Indian Copyright Act, 1975, makes infringement of copyright a punishable offence. It
imparts both, penalties and fines on wrongdoers. The 1996 amendment to the Act enhanced the period of punishment and imprisonment from 6 months to 3 years with the applicability of a
fine from Rs. 50,000 to Rs. 2 lakhs.

In cases of copyright infringement, the copyright owner can avail of civil or criminal remedies.
Although the Karnataka High Court, in the case of Cheran P. Joseph v. K. Prabhakaran Nair,
held that “a criminal court may not give a finding on the question of infringement if the suit is
pending before the civil court.” Thus, the two types of remedies available are criminal remedies
or civil remedies.

Criminal remedies include: -
1. A fine of Rs. 50,000 which can be increased to 2,00,000
2. Imprisonment from 6 months which can be increased to 3 years
3. Search and seizure of infringing material
4. Delivery of infringing material to the rightful copyright owner

Civil remedies under Section 55 include: -
1. Norwich Pharmacal Order i.e., the order passed against the defendant when information is
required from a third party.
2. Mareva Injunction i.e., an order against the defendant who is trying to delay proceedings
or is obstructing the execution of a decree passed against him.
3. Anton Pillar Order i.e., a set of orders, first involving injunction on distribution of work;
then search of the defendant’s place and seizure of infringing goods and lastly an order
compelling the defendant to disclose names of both, distributors and consumers.
4. Pecuniary remedies i.e., involves three remedies under Section 58 of the Act - profits
made by the wrongdoer; compensatory damages to the owner and conversion damages.
5. Interlocutory injunctions i.e., the most important remedy and is granted in most cases. This
however, is only possible in cases where the case is prima facie and there has been
irreparable injury to the copyright owner.

One of the most major copyright issues in the entertainment industry is the reproduction of the
idea of another claiming it to be an original idea. The other, as mentioned earlier, is online
piracy. Our judiciary has utilised the Copyright Act time and again in order to ensure justice as
often as they can, but the issue here lies in the fact that the hands of the law can only go so far. 

Ideas or themes are not protected by the Act and as such can be copied as long as the copying
is not blatant. And with online piracy, with the constant change in URLs and nameless users
protected by the internet, apprehending perpetrators is next to impossible. Although in cases
where the perpetrators are unknown, the courts are quick to grant John Doe orders.15
One such case was seen with the film Happy New Year, where a production house, Red Chilies
Entertainment, filed a suit and the Bombay High Court recognised that acts of piracy could
affect the makers of the film adversely. A John Doe order was granted and the pirated copies
of the movie were prevented from being released. 16 It was also stated that whoever went
against this order would be further liable for criminal action.
Other forms of entertainment too, receive due protection through Copyright laws such as tag
lines of radio stations or lyrics of songs.

Some suggestions I would make in order to better the current system include: -

1. Improving and streamlining the legal procedures in order to make these rights more
accessible. This would prevent unnecessary harassment caused to creators.17
2. In cases where the Copyright violation is major, the minimum time for imprisonment must
be increased to at least 9 months.
3. Helplines should be set up that can work to help those who have created artistic work but
lack knowledge of how to protect their rights and in order to instruct those affected in case
rights are infringed.
4. Stricter internet control systems when it comes to piracy. So, wrongdoers can be caught
and cannot escape only by changing URLs.
It is not difficult to understand that copyright laws have an important space in the entertainment
industry. These laws protect everyone from the authors to the performers. They also provide
incentives to creators to keep creating as they know that reception of recognition and profits
owed to them will not be forgone.