Soft Intellectual Property and

Indian Entertainment Industry

Dr. Neelam Tikkha




























Copyright Law with Special Reference to Entertainment and
Software Industry: Critical Analysis with Case Studies

Dr. Neelam G. TIkkha
ISBN : 81-86067-14-0

Copyright @CFI 2014. Publishers: CF International,
D903,Sarthak Tower , Ramdeo Cross Road Satellite
Road , Ahmadabad - 380015.

Price INR 950/=

All rights reserved. No part of this publication
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DEDICATION

I DEDICATE THIS WORK TO
MY FATHER DR. GS TIKKHA
AND MY
DAUGHTER DR. ISHITA TIKKHA
WHO MOTIVATED ME AND GAVE ME TIME FOR THE WORK.
I ALSO DEDICATE THIS BOOK TO LAWELLMAN
WHO GUIDED ME FOR THIS BOOK

Preface

This project introduces some basic concepts of copyright law and discusses their relevance
in the present scenario of ever diminishing international borders. The project deals
specifically with the relevance of Copyright law on entertainment Industry. It also
highlights the Copyright Amendment 2012 which was passed by Rajya Sabha on May,
2012 and its impact on entertainment industry. The statute empowers disabled which is a
step towards inclusive development.
A number of Indian e companies are selling their wares in digital space to a number of
countries for example flipkart, Lenskart, Health kart , Jewel kart, lady blush, Myntra.com
Snap Deal, e bay and Caratlane. Music, DVDs of films and books are also sold online.
The products and concepts are travelling at the click of a button. Computer software and
electronic toys are pirated virally. IP infringement is a viral multi-billion dollar business
round the globe. IP stealing is done by systematic approach by highly systematic, well-
organized and complicated criminal organizations.
It is a great loss to the creators or the owners of the IP, who generate wealth in the society,
while duplicators and counterfeiters enjoy the fruits of the labor of the rightful owners. In
such cases society is also a loser since the basic concept behind the intellectual property,
which initiates creative activity in the society and helps generate wealth and enhances
welfare of the people, collapses, if rights are not protected legally and there are no means
of enforcing them.
The project also deals with Fair dealing and highlights its various tenets. Fair dealing helps
in allowing exceptions in use of Copyright protected material without infringement of
Copyright act.
TABLE OF CONTENT


Dedications


i

Preface


ii

Introduction

1

Review of Related Literature and Methods of study


10

Fair Dealing or Fair Use of Copyright of Copyright Law

11

Fair Use of Copyright Law US Case Studies
18

Copyright Law and Entertainment Industry

27

Summary and Conclusions

31

Bibliography

32


..

1


Chapter- I
Introduction
Copyright or Soft Intellectual Property
Background and rationale of the study: Globalization has led to the expansion of
multinationals through length and breadth of the world. A number of Indian e companies are
selling their wares in digital space to a number of countries for example flipkart, Lenskart,
Health kart, Jewel kart, lady blush, Myntra.com Snap Deal, e bay and Caratlane. Music,
DVDs of films and books are also sold online. The products and concepts are travelling at
the click of a button. Computer software and electronic toys are pirated virally. IP
infringement is a viral multi-billion dollar business round the globe. IP stealing is done by
systematic approach by highly systematic, well-organized and complicated criminal
organizations. A report compiled by the Union des Fabricants in 2003 states: Counterfeiting
is a very attractive activity for criminal networks because it generates maximum profits with
a minimum risk of imprisonment. It has become a form of organized crime with its own
experts specializing in production in the industrial sectors concerned, its own financiers,
logistics experts, importers, wholesalers and distributors, right up to the end consumer. A
study conducted in the year 2004 by the Business Software Alliance (BSA)
i
states that the
world piracy rate (WPR) was 36% in 2003. It is estimated that 38% of the software installed
on computers worldwide was pirated (2007).The global trade in counterfeits goods has been
estimated at about US$ 750 billion, representing between 5 to 7 % of the value of the global
trade.

It is a great loss to the creators or the owners of the IP, who generate wealth in the society,
while duplicators and counterfeiters enjoy the fruits of the labor of the rightful owners. In
such cases society is also a loser since the basic concept behind the intellectual property,
which initiates creative activity in the society and helps generate wealth and enhances welfare
of the people, collapses, if rights are not protected legally and there are no means of enforcing
them.

Globalization, Information Technology and e-commerce have diluted and blurred the world
boundaries. Products and ideas are sold and purchased at great distances. Information
technology has made marketing simpler and at the same time very complicated, because
copying and counterfeiting activities have shot up tremendously. Not only this, it is cheap and
easy to copy expensive software, electronic toys DVDs and concepts from entertainment
industry. Many of us do not realize, by this small act of ours, we are causing economic loss
to the creator or the owner of the work. It also damages the national economy and world
economy at large. Moreover, the infringer deprives the legitimate industry of profit, customer
trust and loyalty build with consistent effort and honest endeavors.


2

A time has come when it has become essential to have stricter Intellectual property law to
give protection and benefit to the innovator of the product. This study focuses on the
Copyright law and analyses critically the present scenario with a special reference to
entertainment and software industry. The significance of Copyright has been on the rise in the
present time for a number of reasons. Copyright protection is crucial in the global economy,
since it is the foundation for the success and ethical progress for many industries such as
those for books, music, publishing, film, broadcasts. IPRs are basically negative rights since
they are instruments designed mainly to stop any third party to take advantage without
proper permission from rightful owner for commercial purpose in any manner thus violating
the law.

Economic and Social Consequences of Counterfeiting and Piracy:
i)The rightful owner endures great economic and ethical loss.
ii) Licensed manufacturer of goods meets with direct loss in sales revenue.
iii) The lawful sales is taken over by copied products which indirectly affects loss for state of
tax revenue.
iv)The black money produced through counterfeiting and piracy affects the national economy
adversely. People prefer illegitimate jobs rather than legitimate ones , which results in lack
of respect for law.
v) The increase in number of infringed products shakes the economy. Local manufacturers
are tempted towards production of illegitimate goods as it involves low cost of production ,
sells cheap and gives high returns on investment. The counterfeiters rob lawful industry of
revenue, goodwill and consumer loyalty which had been built over time and with herculean
effort.
vi)Industry loses considerable revenue which in turn reduces investment efforts in bringing
good products to the market.
vii) Products for human consumption or applications can be is hazardous and risky and
accountability would also be reduced.
Viii ) There is another major issue of accountability. The rightful owner has to prove that the
product is counterfeit.
ix) Foreign investors are dissuaded since they do not want to risk in a country where IPRs are
not respected thus causing great damage to national economy as foreign investment will be
repelled and new technology would not be infused in such economy creating further loss.
x) Lack of regards for IPRs puts off creative activity in a society as no one likes to see the
fruits of creative work stolen by somebody else with audacity. For example, the development
of local music and film industries in Africa and Latin America has been hampered because of
the high levels of piracy.
xii) Consumers interests are not cared for because infringers are not bothered about the
quality of their products.
xiii) Moreover, use of illegitimate electrical and electronic goods do not follow industry
norms which is highly dangerous and may cost life of because of electrocution and bursting
of cell batteries . There have been a number of incidences where Chinese batteries have burst
and have caused damage to the life of people. Similarly, fake medicines are also dangerous
to the health of the individual. Thus, illegitimate and counterfeited goods are a threat to
security and health of the consumers.

According to a the Federation of Indian Chambers of Commerce and Industry (FICCI) study
of the impact of piracy on India's own film and music industries, 55 per cent of expected

3

earnings from film, and 40 percent of revenue from sales of music were lost to piracy
resulting in a loss of US $4 billion.

Origin of Research Problem: It is highly essential and necessary to critically analyze
existing Copyright law because advances in technology has made copying and counterfeiting
activities on a mass scale quick , simple and cheap. Court craft to defend criminals is
surfacing but hardly anyone realizes the loss to the owner, the job loss of the legitimate
person, the toppling of the back bone of legitimacy and in turn mockery of the law.

Objective: The study aims at exploring the copyright law especially in relation to the
entertainment industry. Critically select cases would be analyzed and the lesson learnt would
be highlighted.

Time frame: The time frame would be one month.
Justification: The topic is highly relevant since a global legal battle is taking shape because
of infringement of copyright especially in entertainment and software industry. Most of the
time, the right holder has to accept compromising solutions which discourages creativity and
innovation.

Chapter Scheme: There would be five chapters. First chapter title would be - Introduction
which will highlight the various nuances of Copyright law. Second Chapter would be titled
Review of Related Literature and Methods of study Third Chapter would be Fair Dealing or
Fair Use of Copyright of Copyright Law, fourth Chapter would be titled Copyright Law and
Entertainment Industry. Fifth chapter would be Conclusion.
The topic is relevant since the rampant growth and popularity of Information technology and
mobiles becoming smarter and smarter day by day flow of material are even through cell
phones and existing law seems to be dull and at times detrimental and ineffective in
controlling infringement.
Material used would be internet, books and cases would be analyzed.

Copyrights are the most visible form of copyright. It is visible in the form of News paper
and Television has a plethora of copyrighted material. Expression in a tangible medium
is the only requirement for copyright to come into existence.
History of Copyright Law: Statute of Anne was the first major step towards origin of
copyright law. It was titled An Act for the Encouragement of Learning, by Vesting the
Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times
therein mentioned. This law protected the interest of authors granting them a limited period
of exclusivity (twenty-eight years), and compulsory public registration.

Berne Convention for the Protection of Literary and Artistic Works (the Berne
Convention) in 1886 was the first major step.


4

The idea behind awarding this right is to promote creative workers such as writers, painters,
and musicians by granting them exclusive right to exploit their creative labour for monetary
gains.

Indian Copyright Law: In India Copyright Act, 1957 (the Copyright Act) and the
Copyright Rules, 1958 as well as the International Copyright Order, 1999 conform with
relevant rules and treaties of the World Trade Organisation (the WTO) and the World
Intellectual Property
Organisation (the WIPO), such as the Agreement on Trade-Related Aspects of Intellectual
Property Rights (the TRIPs Agreement).

Copyright - Bundle of Rights:
The Copyright Act also recognizes the following rights and hence is called bundle of legal
rights:
Authors moral rights;
Broadcast rights; and
Performers rights.

The creator of each work has the right to distribute to the public, reproduce, sell, perform,
display, and create new derivative works as part of this bundle of rights.

Copyright Act Sections 14(a) and (b) assign the e right to:
i. Reproduce the work in any material form including the sorting of it in any medium by
electronic means;
ii. Issue copies of the work to the public and not being copies
already in circulation;
iii. Perform the work in public, or communicate it to the public;
iv. Make any cinematograph film or sound recording in respect
of the work;
v. Make any translation of the work;
vi. Make any adaptation of the work;
vii. Do, in relation to a translation or an adaptation of the work, any of the acts specified in
relation to the work in points (i) to
(vi) above.
Moral Rights
Authors of works are given certain moral rights under Section 57 of the Copyright Act, as
distinguished from economic rights in relation to their works. These are:
The right of publication, or the right to decide to publish the work;
The right of paternity, or the right to claim authorship of a published or exhibited work;
The right to integrity, or the right to prevent alteration and
other actions that may damage the authors honour or reputation.

Broadcasting organizations are also given special rights under Section 37 of the Copyright
Act. A person who does any of the following is deemed to have infringed these broadcasting
rights:
Rebroadcasts the broadcast;
Causes the broadcast to be heard or seen by the public on payment of any charges;
Makes any sound recording or visual recording of the broadcast.


5

Makes any reproduction of such sound recording or visual recording where the initial
recording was done without license, or where it was licensed for any purpose not envisaged
by such license; or
Sells or hires to the public or offers for sale or hire, any such sound recording or visual
recording referred to in the last two points above.


Performers Rights: Copyright act was amended in 1994, to add performers and performing
artists rights on their performance. Under Section 38 of the Copyright Act, performers now
have the right to restrain the unauthorized publication of their performance. Copyright is an
automatic right.
Copyright is a negative right, which means that it restricts the use of copyrighted material by
others.

Requirement for Copyright Law : The essentials for obtaining a copyright are
Originality, expression as opposed to mere idea, and fixation in a tangible media.

Ownership of Copyright :The copyright in a work typically belongs to
Type of Work Author
Literary Work

Creator
Dramatic Work

Creator
Musical Work Composer

Cinematograph Film Producer
Photograph Photographer

Terms of Copyright

According to Berne Convention the term for protection is authors lifetime plus fifty years
for
copyright protection. In India,this term is the authors lifetime plus sixty years. In cases
where the author is not a natural person, this term extends to sixty years from
the date of publication. Broadcast rights extend to twenty-five years from the
year of initial broadcast, and performers rights extend to fifty years
from the year of performance.

Section 52 of the Copyright Act allows some exceptions in the copyright law . Some of the
exceptions are:
A fair dealing of a literary, dramatic, musical, or artistic work
not being a computer program for the purpose of
private use including research, criticism or review;
Making copies of the computer program for certain
purposes, such as to create a back-up;
Reporting news events in newspapers and magazines; by
broadcasting or in a cinematograph film; or by means of
photographs.

6

Reproduction for judicial proceedings and reports thereof;
Reproduction exclusively for the use of members of
legislature;
Reproduction (artistic work excluded) in a certified copy
supplied in accordance with law.
Publication in a collection for the use of educational
institutions in certain circumstances.
Reproduction by teachers or students in the course of
instruction or in question papers.

The figure below will explicate what is copyrightable and what is not :

Figure of What is copyrightable and what is non copyrightable
ii


Factors Determining Infringement :

Copying
Causal Connection
Subconscious Copying
Indirect Copying
Substantial Taking
Unaltered copying
Extent of defendants alteration
Character of Plaintiffs and Defendants works

7

Nature and Extent of Plaintiffs Effort


Remedies For Infringement :


Civil Remdies:


8








Pros and Cons of Civil Remedies: There are certain Pros and Cons of Civil remedies :
PROS
Judicial determination of rights
Likelihood of damages award
Less vulnerable to a challenge
Commissioners seizure orders more effective
CONS
Delays Trial, Appeal Stages
Damages not usually awarded

No severe punishment for violation of rights


9



Pros and Cons of Criminal Remedies:

PROS
Quick remedy
Greater opportunity to quickly counteract violation, with arrest acting as a deterrent
CONS
Chances of seizure of goods low
Difficulty in coordinating with the police

Conclusion: It is hard to like today's copyright law tenets because of the prolific
unauthorized use of copyright material which is widespread like bacteria. On the other hand
citizens and users protest that invasive copyright and related rights law strangle cultural
expression. Worlds geographical boundaries are shrinking day by day and people can take
advantage in countries where the Intellectual Property does not have proper protection.
Moreover, lacunae in IP Law of one country may lead to the economic advantage taken in
other country.


Endnotes:


i
MIR, 037, Rainmaker Training & Recruitment Private Limited, 2012
ii
http://99designs.com/designer-blog/2012/02/08/that-little-a-quick-guide-to-copyright/

10


Chapter II

Review of Related Literature and
Methods of study

Review of Related Literature: There is a lot of literature available on Copyright law
especially with reference to US Copyright law. Yet , study in Indian Copyright Law
especially with relation to Fair dealing and 2012 amendment and its impact on entertainment
Industry is a fertile ground for study hence this study.
Methods of Research: The methodology followed would be exploratory research. The four
methods used in this research are:
1. Historiography
2. Deduction
3. Induction
4. Comparative Analysis
Historiography : The author does not wish to merely do text research on recorded
literature available simply likes to probe into the content form but, This involves
techniques of the science of history.
Deduction: The collected data would be classified then analysed one by one , the
purpose is to obtain their differentiation and particularity and basing on different
backgrounds to state them respectively, hence the process of development can be verified
and confirmed ie finding differences out of similarities
Induction: After sorting collected data an attempt will be made to find similarities to
induce their content.
Comparative Analysis: With the above three approaches the conclusion and lacunaes in
Copyright laws can be drawn and unearthed

11

Chapter III
Fair Dealing or Fair Use of Copyright
The fair dealing doctrine allows a person to use copyrighted material without the permission of
the author. In India, and UK it is termed as fair dealing. The doctrine was founded with the
case Folsom v. Marsh. It was earlier considered to be poorly judged case fit to be placed in the
category of bad copyright decisions. The case was a bill in equity for copyright piracy, the style
of which comes from plaintiff, Folsom, Wells and Thurston, printers and publishers, and
defendants, Marsh, Capen and Lyon, booksellers. The doctrine of fair use has been gaining
immense importance since then in US and a lot of refinement is being attempted.
There has been no proper definition of the doctrine of fair dealing in India but, it has been
elaborated in s 52 of the Act and the basic purpose is to equate the exclusive right of the
copyright holder with the public interest in spreading of information affecting areas of universal
concern such as art, science, history or industry. It allows the use of the copyrighted material in a
reasonable manner without the consent of the owner
i
. However, it should be mentioned that
matter so taken should be used fairly and without animus furandi,
ii
i.e. the doctrine should not be
a license for corporate theft or any such conduct in regard to the protected work.
iii

The Copyright Act, does not define fair dealing, the Indian courts have relied on the definition
by Lord Denning in Hubbard v Vosper . He states:
'It is impossible to define what is 'fair dealing.' It must be a question of degree.
You must consider first the number and extent of the quotations and
extracts..Then you must consider the use made of them.Next, you must
consider the proportions...Other considerations may come to fair dealing
'.legitimizes the reproduction of a copyrightable work.
iv


Fair dealing was first statutorily introduced in 1914 in India as a mere duplication of Section
2(1)(i) of the UK Copyright Act, 1911, providing that copyright would not be infringed by 'any
fair dealing with any work for the purposes of private study, research, criticism, review or
newspaper summary'.
v

12


India's fair dealing doctrine and UK colonies are less robust as compared to The US doctrine of
fair use. It has been perceived as having the weak imperial import.
vi


Watershed Cases:
Folsom v. Marsh (1841)
vii

The case became very important since court defined the justifiable use of original material
which formed the foundation for the fair use doctrine.
Basis of Argument of the case: The case was argued in the Massachusetts Circuit Court in
1841. Charles Upham was sued, by the owner and editor of a multi-volume collection of George
Washingtons letters, because he had published 350 pages of Washingtons letters in his 866-
page book. Uphams defense was that these letters were not proper subjects of copyright
because the author was deceased, and they were not literary. He also argued that he had the right
to abridge and select portions of these letters for his work.
Decision: The court ruled that Upham did violate copyright law. Justice William Story said that
letter writers and their heirs possess copyright no matter the content. He also said, It is certainly
not necessary, to constitute an invasion of copyright, that the whole of a work should be copied,
or even a large portion of it, in form or in substance. If so much is taken, that the value of the
original is sensibly diminished, or the labors of the original author are substantially to an
injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy
pro tanto (Association of Research Libraries, par. 6).
Stowe v. Thomas (1853)
Significance of the case: Many American authors stood up for the idea of copyright as
property which, helped to get Copyright law amended.
13

The case: Harriet Beecher Stowe, sued F.W Thomas, for translating her book, Uncle Toms
Cabin into German in 1853.
Decision: The court ruled in favor of Thomas. The court said that once an author published
his/her thoughts, sentiments and knowledge to the world, the author no longer has the rights to
them (Cohen and Rosenzweig, par. 4).
The Fair Dealing Three Factor Test in India
viii
: India follows three factor tests to decide fair
dealing. For example ; Civic Chandran v Ammini case
ix
the court laid down the three fold
question of fair dealing to be: (1) the quantum and value of the matter taken in relation to the
comments or criticism, that is, the degree of substantiality; (2) the purpose for which it is taken;
and (3) the likelihood of competition between the two works.
1.The Amount and Substantiality of the Dealing
x
:
In Blackwood case
xi
the material was reproduced in the form of guides. The court held that the
alleged infringers intention is an important but not a decisive factor in determining whether the
work in question was copied so substantially that the copying would amount to negative 'fairness'.

xii
In SK Dutt vs Law Book Co and Ors
xiii
the dispute originated because of use of some quotations
from a work. The court interpreted the fact of acknowledgement by the authors of the plaintiff
material to mean that had the authors made any other use of the plaintiffs book in compiling their
own book they would acknowledge it; thus the copying was held not to be a substantial taking.
xiv

2. Purpose , Character (and Commercial Nature) of the Dealing:
This factor under section 52 allows fair dealing if made, inter alia, of a literary work or dramatic
work for the purpose of private use including research and criticism or review , whether of that work
or any other work does not claim copyright infringement . Thus, if dance performance is made
before non paying audience like amateur club or private use (The words 'research or private study'
were replaced by the words 'private use including research' by the Copyright (Amendment) Act,
1994 (Act 38 of 1994).) it does not call for copyright infringement .
xv
The Act throws no light on
the meaning of research, the Court in Blackwood case relied on the meaning of research as
14

mentioned in 'The Shorter Oxford Dictionary' as 'an investigation directed to the discovery of some
fact by careful study of a subject; investigation, inquiry into things'. In the light of this meaning,
the Court held that chapter summaries of the plaintiff's work, made by the defendant, cannot be
said to comprise the quotations
xvi
for the purposes of 'research'.
In India courts feel that review summarizes the original work for giving idea to a third person ,
criticism discusses merits and demerits of the work and guide may enable students of the original
work to better understand it from the point of view of examinations but on the other hand
verbatim
xvii
copy cannot get protection under the cover of the copyright act.
The US courts have added another dimension of transformative work doctrine
xviii
. The courts
held that: Where the theme is the same but, presented and treated differently so that the
subsequent work becomes a completely new work , no question of violation copyright arises.

In V Ramaiah v K Lakshmaiah
xix
the courts cautioned that guides should have independent
contribution to claim ploy of fair dealing as per transformative work doctrine . The Court in
Chancellor masters, which again concerned copying for the purpose of guide books, had laid
down that while dealing with the issue of fair dealing, a Court should ask whether the purpose
served by the subsequent (or infringing) work is substantially different (or is the same) from
the purpose served by the prior work. To be called transformative, the subsequent work must
be different in character; it must not be a mere substitute, in that, it not sufficient that only
superficial changes are made, the basic character remaining the same.
xx

This is very central to the determination of fair use, i.e., if the work is transformative, then it
might not matter that the copying is whole or substantial. Moreover, if the work is
transformative, it may not compete with the market share of the prior work.
In Chancellor Masters, the Court also held that the purpose and manner of use by the defendants
of the questions found in the plaintiff's textbooks were not only different but, additionally, the
defendants' works can be said to be 'transformative', amounting to 'review' under Section
52(1)(a)(ii) of the Act.
xxi
Here, the term 'review' was interpreted in a contextual term.


15

Effect on the Potential Market: Likelihood of Competition : This factor has not been given
due importance in India . Nevertheless, in Blackwood case, the Court held that the possibility
of competition is all that is necessary for determining infringement of a copyright.
xxii

In ESPN Stars Sports
xxiii
the Court certified the 'likelihood of competition' and held that if the
work is used for conveying the same information it may be unfair.
xxiv

Indian courts have not fully adopted the three factor tests as being done at Us and hence the
Indian fair dealing is considered poor import
xxv
.

Effect on the Potential Market: Likelihood of Competition : In RG Anand v Delux Films
and Ors, the Indian Supreme Court held that there can be no copyright on an idea, subject-
matter, themes, plots or historical or legendary facts and violation of the copyright in such
cases is confined to the form, manner and arrangement and expression of the idea by the
author .
US Courts observe four fold test for Fair Use
The Fair Use Four Factor Test:
xxvi
The US Courts consider four factors while deciding
whether an unauthorised use is fair use .
i) The purpose and character of the use: Whether for economic gain or
educational purpose. Whether the purpose is tranformative. The more
transformative a new work more court will consider it fair use.
ii) The Nature of the Copyrighte work: Factual works , historical facts, scientific
work get less protection since it is of great benefit to the society from the
exchnage of ideas.
iii) The amount and substantiality of the portion used in relation to the
copyrighted work as a whole: If large part of the material is central to the
original work then it cannot be considered fair use except in the case of Parody
where a large portion of the central part of the original work is allowed.
iv) The market value of the copied material: If the new material competes in the
same market and deprives the copyrighted holder of income. Or will create
problems in potential market.
16

Indian Courts have lifted the idea from the US, 'factor analysis method' in the assessment of fair dealing,
the Indian judiciary has considered in a very limited reference. There are other factors which need to be
considered for example bad faith. The doctrine of fair dealing is highly important to protect Copyright
infringement and it is time that Indian courts have robust fair dealing regime. It is not enough for Indian
courts to just have disciplined, rigid or limited approach. The approach of the Kolkatta High court
admitted the need of judicial jurisprudence on copyright matters at par with Folsom v. Marsh case, in
Barbara Taylor Bradford v Sahara Media Entertainment Ltd in the following words:


Our country is singularly devoid of reported decisions in copyright actions, at
least up to the present day. We have had the case of R G Anand shown to us; but
from that time until now there appears to have been no Indian authority which either
side found worth citing before us. The statutory sections are therefore the first things to
see.
xxvii



End Notes:

i
Rosemont Enterprises Inc. v Random House Inc. 150 USPQ 715 at 718-719
ii
Halsbury Laws of India

iii
Harper & Row Publishers Inc. v Nation Enterprises 225 USPQ 1073 (1985)

iv
(1972) 1 All ER 1023 p. 1027.

v
UK, 1 & 2 Geo V, Clause 46, Section 2(1)(i), Burrell Robert,
Reining in copyright law: Is fair use the answer? Intellectual Property Quarterly, 4 (2001) 361-388.

vi
Ayush Sharma, JIPR, Vol 14, November 2009,p. 523.
vii L. Bently & M. Kretschmer eds. Folsom v. Marsh, Massachusetts (1841), Primary Sources on Copyright (1450-1900),
www.copyrighthistory.org

viii
Civic Chandran, 1996 PTC 16 670. It may be noted that these
factors correspond with the fair use factors which find statutory recognition under section 107 of the US Copyright Code, 17 USC 107 as limitations
on exclusive rights: Fair use.

ix Civic Chandran v Ammini Amma, 1996 PTC 16 670.

x
Section 107(3) of the US Copyright Statute, 17 USC 107.

xi
Blackwood and Sons Ltd and Othrs v AN Parasuraman and
17


Ors, AIR 1959 Mad 410 Para 84 and Civic Chandran ,1996 PTC 16 670.

xii
AIR 1959 Mad 410 Para 86.

xiii
SK Dutt v Law Book Co and Ors AIR 1954 All 570 Para 12
and ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008 (36) PTC 492 (Del).

xiv
AIR 1954 All 570 Para 45.

xv
Academy of General Edu, Manipal and Anr v B Malini Mallya, 2009(2) SCALE 310 Para 20.

xvi
AIR 1959 Mad 410 Para 84.

xvii
Ramesh Chaudhary and Ors v Ali Mohd, AIR 1965 J&K 101.
Syndicate of the Press of the University of Cambridge on behalf of the Chancellor, Masters and Scholars of the University of Cambridge and
Anr v B D Bhandari and Anr, 2005(31)PTC58(Del) Para 7.

xviii
Chancellor Masters Case, 2008(38) PTC 385(Del) Para 28.
xix
V Ramaiah v K Lakshmaiah, 1989 PTC 137.
xx
2008 (38) PTC 385 (Del) Para 37.
xxi
V Ramaiah v K Lakshmaiah, 1989 PTC 137.
xxii
AIR 1959 Mad 410 Para 85.

xxiii
ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008 (36) PTC 492 (Del) Para 17.

xxiv
ESPN Stars Sports v Global Broadcast News Ltd and Ors, 2008 (36) PTC 492 (Del) Para 17.

xxv
Ayush Sharma, JIPR, Vol 14, November 2009,p. 523
xxvi FourFactorTest,http://depts.washington.edu/uwcopy/Copyright_Law/Fair_Use/Four.php.

xxvii
2004 (28) PTC 474 (Cal) Para 56.

18

Chapter IV
Fair Use of Copyright Law US Case Studies

Intellectual Property rights are very confusing and at times the infringer is not aware that he
has committed crime, hence it is essential to understand what is the fair use of the
Copyright material. The doctrine of fair use allows the use of some portions of the
copyrighted work without the permission from the owner. Fair use is not well defined and
remains grey area as far as law is considered . Many a times unauthorised use of copyrighted
material is pardonable, if it falls under the doctrine of fair use and at times the infringer
uses as a means of defence.
There are guidelines provided by the law, but it is not an easy task since the world of
copyright is a murkier one , hence it is dealt case by case basis.

The concept of fair dealing and fair use: Most countries have determined in their statutes
exceptions under the doctrine of fair use where prior permission is not required to use
the material. The factors assessed by a court to determine exceptions are in the statutes of
each country.
Fair use is primarily U.S. concept, created by judges and defended by law. Fair use
recognizes that certain types of use of other people's copyright protected works do not require
the copyright holder's authorization. In these instances, it is presumed the use is minimal
enough that it does not interfere with the copyright holder's exclusive rights to reproduce and
otherwise reuse the work.
i

What Does Copyright Protect? : Title 17 of the US code allows the owner of copyright to
distribute, reproduce, display, make derivatives, or perform the work in public. This right
applies to both published and unpublished works fixed in a tangible medium.

Creative works include:
Literature
Music
Motion pictures and other audiovisual productions
Sound recordings
Pantomimes and choreography
Pictorial, graphic and sculptures
Architectural designs

Copyright law protects authors phrases, but does not protect facts and ideas for example ;
names, titles, slogans, extemporaneous speeches, blank forms and standardized material and
government work.

Fair Use of Copyrighted work:
Fair use is allowed for the purpose like :

19

Criticism
Comment
News reporting
Teaching for use in classroom
Research
Parody
These uses allow limited use in the form of quotes, excerpts, summary or making educational
copies of the material.
The Fair Use Four Factor Test:
ii
Courts consider four factors while deciding whether an
unauthorised use is fair use.
i) The purpose and character of the use whether for economic gain or
educational purpose. Wheather the purpose is tranformative. The more
transformative a new work more court will consider it fair use.
ii) The Nature of the Copyrighte work: Factual works , historical facts,
scientific work get less protection since it is of great benefit to the society
from the exchnage of ideas.
iii) The amount and substantiality of the portion used in relation to the
copyrighted work as a whole: If large part of the material is central to the
original work then it cannot be considered fair use except in the case of Parody
where a large portion of the central part of the original work is allowed.
iv) The market value of the copied material: If the new material competes in
the same market and deprives the copyrighted holder of income. Or will
create problems in potential market.
A few Cases of fair use involving text:
iii

Fair use. Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal.
1985).): A Publisher called Larry Flynt made condescending statements about the
Reverend Jerry Falwell on a page of Hustler magazine. Rev. Falwell made several
hundred thousand copies of the page and distributed them as part of a fund-raising
effort. Reason: Court considered the case as fair use since, Rev. Falwells act of
copying did not reduce the sales of the magazine as it was already off the market and
would not in any way affect the marketability of back issues.
Fair use. Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991): A biographer of
Richard Wright for informational purpose quoted from six unpublished letters and ten
unpublished journal entries by Wright: Reason: It is to be considered fair use, since no more
than 1% of Wrights unpublished letters were copied and the purpose was informational.

20

Fair Use : . Cambridge University Press v. Georgia State University, Case 1:08-cv-01425-
OD (N.D. Ga, May 11, 2012):In a case claiming 75 instances of infringement in an
educational setting, 70 instances were not infringing either because of fair use or other
reasons. The infringements were alleged because of the posting of copyrighted books within
the universitys e-reserve system. Reason:The court viewed the Copyright Offices 1976
Guidelines for educational fair use as a minimum, not a maximum standard. The court then
propounded its own fair use benchmark ten percent of a book with fewer than ten chapters,
or of a book that is not divided into chapters, or no more than one chapter or its equivalent in
a book of more than ten chapters.
Fair Use :The Authors Guild v. Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y., October 10,
2012:Libraries that provided a search engine company (Google) with books to scan were
protected by fair use, when the libraries later used the resulting digital scans for three
purposes: preservation, a full-text search engine, and electronic access for disabled patrons
who could not read the print versions. Reason: The reason it is considered fair use is that the
three purposes for which the scans were used were transformative. The court also could not
find any evidence of financial harm and labeled as circular logic, any claims of lost license
revenue.
Not a fair use: Harper & Row v. Nation Enters., 471 U.S. 539 (1985). The Nation magazine
published excerpts from ex-President Gerald Fords unpublished memoirs. The publication in
The Nation was made several weeks prior to the date Mr. Fords book was to be serialized in
another magazine. Reason: Court felt that The Nations copying seriously put to loss and
destroyed the marketability of Mr. Fords serialization rights.
Not a fair use: . Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987): A biographer
paraphrased large portions of unpublished letters written by the famous author J.D. Salinger.
Although people could read these letters at a university library, Salinger had never authorized
their reproduction. In other words, the first time that the general public would see these letters
was in their paraphrased form in the biography. Salinger successfully sued to prevent
publication. Reason: The letters were unpublished and were the backbone of the
biographyso much so that without the letters the resulting biography was unsuccessful. In
other words, the letters may have been taken more as a means of capitalizing on the interest
in Salinger than in providing a critical study of the author
Not a fair use: Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989): An author copied more
than half of an unpublished manuscript to prove that someone was involved in the overthrow
of the Iranian government. Reasons: Court considered not fair use because a substantial
portion was taken (half of the work) and the work had not been published yet.
Not a fair use:Twin Peaks v. Publications Intl, Ltd., 996 F.2d 1366 (2d Cir. 1993): A
company published a book entitled Welcome to Twin Peaks: A Complete Guide to Whos
Who and Whats What, which had direct quotations and paraphrases from the television
show Twin Peaks, as well as detailed descriptions of plots, characters, and
setting. Reasons: The amount of the material taken was substantial and the publication
adversely affected the potential market for authorized books about the program.
Not a fair use: Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir.
1998): A company published a book of trivia questions about the events and characters of the

21

Seinfeld television series. The book included questions based upon events and characters in
84 Seinfeld episodes and used actual dialogue from the show in 41 of the books
questions. Reasons: Court felt that as in the Twin Peaks case, the book affected the owners
right to make derivative Seinfeld works such as trivia books.
Not a fair use: Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.
N.Y. 2008: Although the creation of a Harry Potter encyclopedia was determined to be
slightly transformative (because it made the Harry Potter terms and lexicons available in
one volume), this transformative quality was not enough to justify a fair use
defense. Reasons: The court decided that it is not fair use, since there was extensive verbatim
text was used from the Harry Potter books.
Not a fair use: Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009): In a case
involving the author J.D. Salinger, an author wrote a book in which a character known as Mr.
C was allegedly modeled after the character of Holden Caulfield, from Salingers Catcher in
the Rye. After Salinger sued, the sequels author claimed that his work was a parody, an
argument rejected by the district court. Reasons: Court observed that aging the character and
putting him in the recent day does not contribute anything new, particularly since the
characters personality remains unchanged as derived from the original work.
Cases of Artwork, Visual Arts, and Audiovisual Cases:
Fair use. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).:
In a lawsuit the Betamax case, the Supreme Court determined that the home videotaping of a
television broadcast was a fair use. This was one of the few occasions when copying a
complete work (for example, a complete episode of the Kojak television show) was accepted
as a fair use. Evidence indicated that most viewers were time-shifting (taping in order to
watch later) and not library building (collecting the videos in order to build a video
library).
Reasons: The Supreme Court reasoned that the delayed system of viewing did not deprive
the copyright owners of revenue.
Fair use: (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp.
490 (S.D. N.Y. 1996).): The makers of a movie biography of Muhammad Ali used 41
seconds from a boxing match film in their biography. Reason: Court considered it to e fair
use since a small part of film was taken and for information purpose.
Not a fair use: Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672
F.2d 1095, 1100 (2d Cir. 1982):A television news program copied one minute and 15
seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplins
death. Reason: The court felt that the portions taken formed the heart of the film and were
substantial portions.
Not a fair use: Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir.
1997): A television stations news broadcast used 30 seconds from a four-minute copyrighted
videotape of the 1992 Los Angeles beating of Reginald Denny. Reasons: Court felt that the

22

use was for commercial purpose and was a part of the heart of the work, and disrupted the
copyright owners ability to market the video.
Not a fair use: Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir.
1997): A poster of a church quilt was used in the background of a television series for 27
seconds. Reasons : The court felt that the poster had a thematic importance for the set
decoration of the church, moreover, it was a conventional practice to license such works for
the use in television programs.
Not a fair use: Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).
The U.S. Postal Service (USPS) licensed the use of a photograph of the Korean War
veterans memorial sculpture for a postage stamp, but failed to obtain permission from the
sculptor who held copyright in the underlying three-dimensional work. The U.S. Court of
Appeals for the Federal Circuit held that the use of the underlying sculpture depicted in the
photograph was not permitted under fair use principles. Reasons: It was not sufficient to
change the work from three dimensions to two dimensions (despite the creative use of
photography and snow in conjunction with the photos).
Internet Cases
Fair use: Religious Technology Center v. Pagliarina, 908 F. Supp. 1353 (E.D. Va.
1995):The Washington Post used three brief quotations from Church of Scientology texts
posted on the Internet. Reasons: Only a small portion of the work was excerpted and the
purpose was for news commentary.
Fair use: Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006): Displaying a cached
website in search engine results is a fair use and not an infringement. A cache refers to the
temporary storage of an archival copyoften a copy of an image of part or all of a website.
With cached technology it is possible to search Web pages that the website owner has
permanently removed from display. An attorney/author sued Google when the companys
cached search results provided end users with copies of copyrighted works. The court held
that Google did not infringe. Reason: Court felt that Google was passive player in the
activity since the users were the ones who chose whether to view the cached link. In
addition, Google had an implied license to cache Web pages, since the owners of websites
have the ability to turn on or turn off the caching of their sites using tags and code. In this
case, the attorney/author knew of this ability and failed to turn off caching, making his claim
against Google appear to be manufactured.
Fair Use: Righthaven LLC v. Realty One Group, Inc., No. 2:10-cv-LRH-PAL, 2010 WL
4115413 (D. Nev. October 19. 2010): A real estate blog copied the first eight sentences from
a newspaper article. Reason:The blogger had copied only eight sentences and had not copied
the valuable section (the commentary included with the article), and the court did not
believe that the copying would affect the market for the article (the third and fourth fair use
factors).
Fair Use: Righthaven LL v. Jama, No 2:2010-cv-01322, 2011 WL 1541613 (D. Nev. April.
22, 2011): A nonprofit organization posted a newspaper article about police discrimination
on its website. The newspaper assigned its right in the article to a third party, Righthaven,

23

who filed the lawsuit. Reasons: The courts reasoning that since, Righthaven had acquired
the copyright and was not in the newspaper business and the use was transformative because
its purpose was to educate the public about immigration issues. Furthermore, since
Righthaven was not in the news business, it could do no harm from the defendants
dissemination of the article.
Fair Use: Righthaven LLC v. Democratic Underground, No. 2:10-cv-01356-RLH (GWF):
A user of an online political forum posted a five-sentenced excerpt from a newspaper article
with a link back to the newspapers website. Reason: The use was quantitatively small and
did not cause the newspaper financial harm. In addition, the online political forum was
permitted to use the safe harbor provisions of the Digital Millennium Copyright Act.
Not a fair use: Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996):
Entire publications of the Church of Scientology were posted on the Internet by several
individuals without the permission of Church.
Reasons: Fair use is intended to permit the borrowing of portions of a work, not complete
works.
A Few Case Studies of Music Cases:
iv

Fair use: Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957
(D. N.H. 1978):A person running for political office used 15 seconds of his opponents
campaign song in a political ad. Reasons: Court viewed it as fair use since a small portion of
the song was used for the purpose of political debate.
Fair use :Italian Book Corp., v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y.
1978): A television film crew, covering an Italian festival in Manhattan, recorded a band
playing a portion of a copyrighted song Dove sta Zaza. The music was replayed during a
news broadcast. Reasons: Only a portion of the song was used, it was incidental to the news
event, and it did not result in any actual loss to the composer or to the market for the work.
Not a fair use: (BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005): Downloading songs
is not a fair use. A woman was sued for copyright infringement for downloading 30 songs
using peer-to-peer file sharing software. She argued that her activity was a fair use because
she was downloading the songs to determine if she wanted to later buy them. Reasons: Since
numerous sites, such as iTunes, permit listeners to sample and examine portions of songs
without downloading, the court rejected this sampling defense.
Not a fair use: Capitol Records Inc. v. Alaujan, 2009 WL 5873136 (D. Mass., 7/27/09: A
defendant in a music file sharing case could not claim a fair use defense since he had failed to
provide evidence that his copying of music files involved any transformative use (an essential
element in proving fair use). Reasons: The court held that the defendant was confusing
fairness and fair useIn the end, fair use is not a referendum on fairness in the abstract




24

A few Parody Cases:
Fair use. Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.),
affd 632 F.2d 252 (2d Cir. 1980): Comedians on the late-night television show Saturday
Night Live parodied the song I Love New York using the words I Love Sodom. Only the
words I Love and four musical notes were taken from the original work. Reasons: The
Saturday Night Live version of the jingle did not compete with or detract from the original
song.
Fair use. (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).) : The composers of the song When
Sunny Gets Blue claimed that their song was infringed by When Sonny Sniffs Glue, a 29-
second parody that altered the original lyric line and borrowed six bars of the song. A court
determined this parody was excused as a fair use. Reasons: It was a fair use since only 29
seconds of music were borrowed (not the complete song).
(Note: As a general rule, parodying more than a few lines of a song lyric is unlikely to be
excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by
humorously modifying hit songs, seek permission of the songwriters before recording their
parodies.)
Fair use. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994):The rap group 2 Live Crew
borrowed the opening musical tag and the words (but not the melody) from the first line of
the song Pretty Woman (Oh, pretty woman, walking down the street). The rest of the
lyrics and the music were different. Reasons: The groups use was transformative and
borrowed only a small portion of the original song. The 2 Live Crew version was essentially
a different piece of music; the only similarity was a brief musical opening part and the
opening line. (Note: The rap group had initially tried to pay for the right to use portions of the
song, but was refused by the publisher, who did not want Pretty Woman used in a rap
song.)
Fair use: Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998): A movie
company used a photo of a naked pregnant woman onto which it superimposed the head of
actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a
famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of
Vanity Fair magazine.
Reasons: Court considered the use by the movie company to be transformative, because it
imitated the photographers style for comic effect or ridicule.
Fair Use. A pro-life video organization created two anti-abortion videos by borrowing video
clips from a pro-choice video and juxtaposing them with actual abortion
footage. Reasons: The court categorized the pro-choice videos as parodies despite the fact
they did not meet the classic definition of a parody something that humorously mimics or
ridicules anothers work. In a unique holding, the court held that a parody need not be
humorous, but may merely comment on, or criticize the original. Northland Family Planning
Clinic v. Center for Bio-Ethical Reform, No: SACV 11-731 JVS (C.D. Cal. June 15, 2012).
Not a fair use: (Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D. N.Y.
1987): An artist created a cover for a New Yorker magazine that presented a humorous view

25

of geography through the eyes of a New York City resident. A movie company later
advertised their film Moscow on the Hudson using a similar piece of artwork with similar
elements. The artist sued and a court ruled that the movie companys poster was not a fair
use. Reasons: This case was different from the previous case involving the Leslie
Nielsen/Annie Leibovitz parody because in the Leibovitz case, the use had been a true
parody, characterized by a juxtaposition of imagery that actually commented on or criticized
the original , but Moscow on the Hudson movie poster did not create a parody; it simply
borrowed the New Yorkers parody (the typical New York City residents geographical
viewpoint that New York City is the center of the world).
Not a fair use: Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th
Cir. 1997). An author mimicked the style of a Dr. Seuss book while retelling the facts of the
O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth
Circuit Court of Appeals determined that the book was a satire, not a parody, because the
book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss
characters and style to tell the story of the murder. Reasons: The court viewed it as not fair
use as authors work was non transformative and commercial.

Figure: Barack Obama Hope Poster designed by artist Shepard Fairey,
v

Lessons Learnt : Thus the above cases reveal that Modeling a design after a photograph is
also considered to be infringement , since photographs are protected as copyrighted works
and cannot be freely copied. Even translating a copied image into a different medium may
still be considered copyright infringement. The Barack Obama Hope Poster
vi
made by
Shepard Fairy during the 2008 US presidential election is a perfect example of how
complicated things can get surrounding a valuable copyright.
As per US Copyright law it would be an infringement even if one manipulates a digital
copyrighted image with software like Photoshop, Illustrator, etc. If the new image is based on
the original one then it is infringement since US copyright law does not allow
Substantially similar works. Free clip arts and stock images available on the web are also
copyrighted and it is illegal to use despite what the website they are hosted on may claim.

26


Conclusion:
The observation of the above cases show that fair use is generally when the copying is not for
economical gains. One should always keep in mind the four factors:
The purpose and character of the use
The nature of the work
The amount and substantiality of the portion used in relation to the work as a whole
The effect of the use on the market or potential market for the original work
Infringers of copyright laws may be required to pay substantial fines. In some cases, there
may also be criminal liability.



i
http://www.copyright.com/Services/CorporateGuide/introduction_frameset.htm

ii
FourFactorTest,http://depts.washington.edu/uwcopy/Copyright_Law/Fair_Use/Four.php.
iii
C. Summaries of Fair Use Cases - Roy Rosenzweig Center for ...
http: chnm.gmu.edu/digitalhistory/links/cached/chapter7/link7.59c...

iv
Summaries of Fair Use Cases, Stanford University Libraries, http://fairuse.stanford.edu/overview/fair-use/cases/

v
http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster
vi
Ibid.
27


Chapter- V
Copyright Law and Entertainment Industry


Figure : Tony Robbins Book cover page
i

Indian film industry started on 7
th
July , 1896 which showcased its first movie in Mumbai .
Today Indian film industry is the largest in the world and employs over 2 million people. Indian
film industry comprises of several regional film industries and Bollywood is at the centre of
them all. It is the fastest growing economic sector . Its popularity has been further risen by the
cable television. Yet, Indian film industry lacks recognition because of the longstanding
practice of producing "cultural copies," as opposed to original works. A cultural copy is nearly a
direct copy of a movie or other work from one culture to another. In recent years, nearly eight
out of every ten Bollywood scripts have been "inspired" by one or more Hollywood films. Today
internet media has become an easy trap for the infringers, as world comes to know of
infringement immediately.


28

Figure: Image
ii
: Rules are like glasses to be broken easily.
The weakness of the earlier Copyright Act 1957 was that small players in the films were
exploited and sometimes lived in penury , wheras the power engine made huge money drawing
from royalties and futre sales . The 1994 amendment had given producers the right to use and
exploit underlying works in conjunction with films. Hence, the 2012 amendment was felt to be
important . The highlight of the amendment is that it not only protects the rights of the small
players ,whose creativity goes into the making in film industry and music industry , but also of
the disabled people.
An instance of the case Mannu Bhandari v. Kala Vikas Pictures
iii
prayed the court to add further
clarification on moral rights protection in Section 57 judicially , even though they had arrived on
a settlement. The plaintiff, the author of a novel titled Aap ka Bunty, assigned the filming rights
for this novel to the defendant, who in turn produced the film Samay ka Dhara. Upon watching
the film, the plaintiff felt that the original novel was mutilated, and initiated a suit under Section
57 seeking permanent injunction restraining the screening and exhibition of this film. The Single
Judge of the Delhi High Court refused injunction taking a simplistic view that the contract
between the plaintiff and the defendant permitted modifications to the novel for the purpose of
filming it.
iv
Since, there were no further guidelines in the section 57 it was necessary to amend
moral rights in the Act.
Moral Rights: 1. Droit de divulgation : Right to decide whether or not to publish the work.
2. Droit a la paternite : Right to claim authorship of a published or exhibited work.
3.Droit au respect de loeuvre: Right to prevent alteration and other actions that may damage the
authors honour or reputation. Of these, the second and third find specific recognition in Section
57 of the Act. This provision is an affirmation of the moral rights recognized under the Berne
Convention. There is no mention of the first, that is, droit de divulgation, in the Berne
Convention and doubt has been cast on whether this is a moral right
v
at all.

Fig : Chetan Bhagat
vi

29

Right in Equity: The right to receive mention in the credits is available to the performer or
creator outside the purview of Section 57. Chetan Bhagat (above) felt that Raju Hirani's film `3
Idiots' did not give him due credit as the author of the book from which it was adapted since the
producer was considered to be the author according to the earlier copyright law.
Another judgment Suresh Jindal v. Rizsoli Corriere Della Sera Prodzioni T.V. S.P.A.
vii

The appellant had primary grievance that he had made valuable contributions to the script of a
television serial proposed by the respondents to be shot in India modifying it to fit in Indian
context. But, once the permission was granted by the Government the respondent sidetracked
him and literally out which initiated a civil suit claiming specific performance of the
agreement between the parties as a final relief, and interim injunction restraining the respondents
from proceeding with the production of the film and from transferring and/or assigning the rights
of the appellant under the agreement to any other person, as well as from carrying on with the
production or exhibition of the film without the participation and / or involvement of the
appellant as one of the producers. But, even before the interim relief could be acquired the
respondent had completed the production of the film. Hence, when the appellant interim relief
was heard , the appellant had to restrict the claim to a three-second display of his name as a co-
producer in the credit-titles of the serial. With no relief in lower courts Appellant moved to
Supreme Court which recognized the contribution of the appellant though he could not be called
a producer since he was out of the making of the serial since the time the approval from Indian
Government came through. The Court observed that the appellant had played some part in
making of the film possible and that the respondents were acting unreasonably in denying him
the benefits. And respondent was directed to mention in its title shots, an acknowledgment of the
services rendered by the appellant to the producers in some appropriate language.
This right has also been extended to singers. The Delhi High Court in Neha Bhasin v. Anand
Raj Anand
viii
, reaffirmed the equitable right recognized by the Supreme Court in the above
mentioned case. The plaintiff was a singer who contended that the defendants had not
acknowledged or given due credit to her for singing a few songs in a Bollywood film. As singer
is not the author of any copyrightable work as per the Act, Section 57(1)(a) would not apply to
such cases. Nevertheless, the Delhi High Court granted her equitable relief in terms of an
injunction restraining the defendants from using, selling, distributing, exhibiting, or advertising
the music or the promos containing the disputed songs of this Bollywood film without displaying
her name as the lead female singer. The High Court recognized that the plaintiffs right in
equity to receive proper credit for the songs she sang would stand violated if these songs were
attributed to some other singer despite her voice being used. The defendants had in this case
attributed another singer as the lead female singer and placed the plaintiff in the credits as a
backup singer. The Court viewed this as a situation of adding insult to injury, since the plaintiffs
aspirations to rise as a female vocalist would receive a big jolt if in the market she is perceived
merely as a backup singer and not as a lead singer.
ix

30

Inspiration of Bollywood movies from Hollywood is not the only thing, but now even the posters
are inspired or lifted by Hollywood. Recently, the poster of Himesh Reshammiya's upcoming
movie The Xpose looked a lot like Hollywood film. Ra One, Xpose, Rowdy Rathore -
Bollywood Movie Posters Copied From The West1:14 .

Figure: Ra One, Xpose, Rowdy Rathore - Bollywood Movie Posters Copied From The West1:14 Recently, the poster of Himesh
Reshammiya's upcoming movie The Xpose looked a lot like Hollywood film (Rajshri, 2014)
x

In conclusion, the right to claim authorship in Section 57(a) has been extended in equity to
creative assistants, singers, and others, who make valuable contributions to the creative process.
But, this might create problems regarding the issue of royalty sharing as felt by Nandita
xi

agreements with the Act providing no guidance regarding how to split royalties or negotiate
while exploiting the work in future. The amendments are good in spirit but can be easily broken
up with court crafts. The plus point of the amendment is that it promotes inclusive development
by safeguarding the interests of the disabled.
End Notes:

i L. Gopika , Phonographic Performance Limited, March 30, 2014, http://spicyip.com/2014/01/almost-two-years-later-indias-new-copyright-law-
makes-no-difference-to-music-industry.html

ii Ibid.
iii AIR 1987 Del 13.
iv Ananth Padmanabhan ,Creativity and respect - a saga of moral rights ,Jun 26, 2011.
http://www.mylaw.net/Article/Creativity_and_respect_a_saga_of_moral_rights.

v PEE PEE Publisher and Distributors Private Limited v. Neena Khanna, 2010 (44) PTC 45.

vi Image from Wikimedia Commons

vii Suresh Jindal v. Rizsoli Corriere Della Sera Prodzioni T.V. S.P.A., AIR 1991 SC 2092.
viii 2006 (32) PTC 779
ix Ananth Padmanabhan ,Creativity and respect - a saga of moral rights ,Jun 26, 2011.
http://www.mylaw.net/Article/Creativity_and_respect_a_saga_of_moral_rights.

x Rajshri. (2014, April 21). Im-poster! Bollywood caught red-handed. Retrieved April 21, 2014, from Yahoo.com: http//www
.in.movies.yahoo.com/photos/im-poster-bollywood-caught-red-handed-slideshow/

xi Nandita Saikia ,Amending the film and music industry, Oct 31, 2010.
http://www.mylaw.net/Article/Amending_the_film_and_music_industry

31

Chapter VI

Summary and Conclusions


Globalization, Information Technology and e-commerce have diminished the world borders
Information technology has made marketing simpler and at the same time very complicated.
Copying and counterfeiting activities have shot up tremendously. Entertainment Industry has
seen a great set back. The earlier Copyright Act where in Producer was the author of the film
created lots of controversies and power engine determined the rule of the game. Creativity
was not suitably rewarded at times in entertainment industry. Moreover because of the
lacunae in the Copyright act people took advantage and usually found way out by way of
court craft. Indian film Industry is well known for creating culture copies which is a subtle
way if infringement. The significance of Copyright has been on the rise in the present time
for a number of reasons. Copyright protection is crucial in the global economy, since it is the
foundation for the success and ethical progress for many industries such as those for books,
music, publishing, film, broadcasts. IPRs are basically negative rights since they are
instruments designed mainly to stop any third party to take advantage without proper
permission from rightful owner for commercial purpose in any manner thus violating the
law.
It has become essential to understand Copyright Laws of various countries. The need of the
hour is to have stricter Intellectual property law to give protection and benefit to the
innovator of the product. This study focuses on the Copyright law and analyses critically the
present scenario with a special reference to entertainment and software industry. The study
explored the Indian Copyright law especially in relation to the entertainment industry.
Critically select cases would be analyzed and the lesson learnt would be highlighted.
Methodology of study was explorative and cases were analyzed.
Conclusion: It is hard to like today's copyright law tenets because of the prolific
unauthorized use of copyright material which is widespread like bacteria. On the other hand
citizens and users protest that invasive copyright and related rights law strangle cultural
expression. Indian Courts have lifted the idea from the US, 'factor analysis method' in the assessment
of fair dealing, the Indian judiciary has considered in a very limited reference. There are other factors
which need to be considered for example bad faith. The doctrine of fair dealing is highly important
to protect Copyright infringement and it is time that Indian courts have robust fair dealing regime.
Worlds geographical boundaries are shrinking day by day and people can take advantage in
countries where the Intellectual Property does not have proper protection. Moreover, lacunae
in IP Law of one country may lead to the economic advantage taken in other country. The
2012 Amendment to this act is a watershed change and a step towards inclusive development
since it provides tools to disabled persons as well as it provides for protection of their sweat
for labour and creativity. Furthermore the right to claim authorship in Section 57(a) has been
extended in equity to creative assistants, singers, and others, who make valuable
contributions to the creative process. But, this might create problems regarding the issue of
royalty sharing. The amendments are good in spirit but, can be easily broken up with court
crafts. The plus point of the amendment is that it promotes inclusive development by
safeguarding the interests of the disabled. There are many lacunaes as compared with robust
US Copyright laws.
32

Bibliography:

Basheer, Shamnad, Aamir Khan v. Javed Akhtar: Indias Revolutionary Copyright Provision, Spicy IP 18-2-2010.
Bently, L. & Kretschmer, M. eds. Folsom v. Marsh, Massachusetts (1841), Primary Sources on Copyright (1450-
1900), www.copyrighthistory.org

Culver, Michael. 'An Examination of the July 8, 1838 Letter from Harriet Martineau to United States Supreme Court
Joseph Story As It Pertains to United States Copyright Law.' 32 J. Copyright Soc'y 38 (1984).

Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association and Ors., AIR 1977 SC 1443,
(1977) 2 SCC 820, [1977] 3 SCR 206.

Kamina, Pascal, Film Copyright in the European Union.
Krishnamurthy, Nikhil, Waxing Lyrical on Royalties, SpicyIP; 5-5-2010.
Patterson, Ray. Folsom v. Marsh and Its Legacy (1998),
http://digitalcommons.law.uga.edu/fac_artchop/351
Rajagopal, Saikrishna, On Different Notes, Indian Express; 20-2-2010.

Reese, Anthony R. 'The Story of Folsom v. Marsh: Distinguishing Between Infringing and Legitimate Uses.' In
Intellectual Property Stories, eds. Jane C. Ginsburg and Rochelle Cooper Dreyfuss. New York: Foundation Press,
2006, 259.

Sharma, Ayush, JIPR, Vol 14, November 2009,p. 523.
Saikia , Nandita, Films and the Copyright (Amendment) Bill, 2010 21-2-2010;
SSRN: http://ssrn.com/abstract=1566350.
Tehranian, John. 'Et Tu, Fair Use? The Triumph of Natural-Law Copyright.' 38 U.C. Davis Law Review 465 (2005).
Wexman, Virginia Wright, Film and Authorship np,nd.

E : Resources:
http://www.mylaw.net
Indiakanoon.org
MIR, 037, Rainmaker Training & Recruitment Private Limited, 2012.
SpicyIP
http://digitalcommons.law.uga.edu
http://www.library.dmu.ac.uk/Support/Copyright/index.php?page=420