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Copyright infringement or inspiration -- it's still a war

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MUMBAI: Whenever a good movie crosses over into India, the first thought that pops up in one's mind is -- Whether it is copied or is it inspired?

The war between infringement and inspiration is not only reaching the courts of law but spicing up discussions too. Well, copying in a unique way is inspiration, but copy an original idea or a format or a script is absolute infringement, say legal experts.

The Sixth Annual Media, Advertising and Entertainment Legal Summit 2017’s session on ‘The converged mediascape and a creative India – It’s copyright cries’ had a spicy kickstart with the panelists -- Government of India joint secretary - department of justice, ministry of law and justice, Raghavender GR, Luthra & Luthra Law office partner Deepak THM, Dhir & Dhir Associates partner Siva K Gopinatham, Law Chambers of J Sai Deepak founder J Sai Deepak and Ogilvy and Mather VP and head - legal Kanan Rele.

The panel was moderated by Raymond director – legal Zameer Nathani.

Discussing the key topic ‘Infringement of copyright – copyright or mere inspiration,’ Deepak THM said, “It may not be an infringement of cinematograph film but there can be an infringement of script. To compare, certain tests needs to be applied. Substantial similarity test copyright infringement, copyright to characters and copyright to script are some tests to be done before claiming infringement."

He added: "India's one of the biggest blockbuster scripts, Bombay, is based on the play Cohens and Kellys. In the play, the Jewish girl and Irish boy fall in love and secretly marry. 'Bombay' is the film on the wrath of communal riots when a Hindu boy gets married to a Muslim girl. But, the movie was not infringed, some portions of the play were inspired and seen in the script, but the script's elements along with the concept was depicted in a unique pattern.”

Gopinatham added that copying in a unique way was inspiration, but "in an original way" was absolute infringement.

Nathani put some light on copyright and royalty. He said, “The idea of introducing royalty cost was to understand the mathematics that if an additional figure is included in the production cost, then how to bear it, and who should bear it. Fundamentally, the exploiter is supposed to bear the royalty fee. For example, a movie was sold to Star (channel). So, every time, a song from the movie is broadcast on Star, the revenue generated from the advertisers will take out a portion for the lyricist. The portion will be decided by copyright society which is not yet decided.”

Seeing the present era, Nathani added that Facebook is engaging top 10 newspaper agencies to authenticate the news for article infringement and to stop fake news.

Raghavender spoke about 2012 amendment which was in line with WCT and WPP. He said, “WIPO Copyright Treaty (WCT), introduced in 1996, is a special agreement under the Berne Convention that deals with the protection of works and the rights of their authors in the digital environment. But, there is divergence in convergence because the Digital Millennium Copyright Act 1998 is slightly different from the way we have done it because of the copy control provisions that are there and access control techniques used. Flexibilities, however, are included in WPP and WCT provision."

He added: "The concept of flexibility expanded the tricks to protect the interest of the technological, administrative, financial, socio-cultural conditions of the developing countries under Article 6 and 66 Paragraph 1.”

Kanan, talking about the misery faced by her company owing to the Copyright Amendment Act, said, “I am from the advertising industry, and we are facing two issues due to this amendment. Our employees directly work for us but they are also entitled to royalty. But, there is no society-firm from where these royalties can be collected. The second issue we faced is that Section 18 gives protection to authors that they are not supposed to waive the rights to receive royalty. So, if an author wants to collect money for example an X amount as his lifetime royalty, he has no right under the Copyright Amendment Act to receive that.”

On consolidated royalty, Raghavender added, “There is a continuous exploitation based on revenue of author-writers in terms of consolidated royalty. And also, s/he is needed to be a member of IPRS as far as royalty rights are concerned.”

Raghvender briefly explained the reasons of delay in statutory licensing for broadcasting. He said, “Section 31D under the Copyright Amendment Act was introduced for the radio industry, which was later extended to television broadcasters. The purpose of having the statutory licensing provision was to entitling the radio broadcasters to play sound recordings seamlessly, without going through the extortion of negotiations for broadcast by paying a prefixed consideration for such usage.”

“Earlier, a radio broadcaster had to take three voluntary licenses before exploiting a song either for promotion or for commercial purpose. But, after the denial by the radios for paying high copyright amount demanded by the owner, voluntary licence was denied as per the Berne Convention provisions and statutory license were made. Under statutory licence, the rates of royalty for radio broadcasters shall be different from television broadcasting, and the government shall decide the rate which will be later fixed by the Copyright Board separately for radio broadcasting and television broadcasting. It is restricted to television and radio, and does not apply on webcasting.”

Kanan shared the key takeaway from the Delhi High Court case of Suneet Varma Design vs Jas Kirat Singh Narula. It was a 2006 case of copyright infringement on Yashraj’s film "Bunty Aur Babli," using a creation from the designer Suneet's 2003 collection to dress up an actress in the film -- Rani Mukerji. Narula said that he had not designed but purchased the same from a retail shop named Baby Bell in a shopping mall in Mumbai. Based on the provisions of Section 51-52 of the Indian Copyright Act, 1957, the case was dismissed.

Kanan said, “There are certain guidelines that filmmakers, photographers, etc. need to be given certain liberties as far as creative expression is concerned. Because, it is very difficult to take approval for each and every product or material that is used in the artistic representation of the film.”

On India’s position at WIPO Broadcasting Treaties, Raghavender said, “At present, the planning committee at WIPO is discussing the numbers, and it has been a point of discussion since the last 15 years. Since then, the WCT and WPP provisions came, the understanding among the stakeholders has increased to 191 in rival states, raised last week by WIPO panel and the reason behind the difference is technology."

He added: "In 2005, WIPO rushed with their final round with consensus of rival states on diplomatic content. On one clause of transferring the rights, with the lack of consensus, it took 11 years to revive."

"India has denied having implicit webcasting treaty,” he said.

“In the 20th association, the knowledge data market value, the international norms will be done in the standing committee on copyrights and royalty rights where countries give proposals which become an agenda, and discuss whether there should be a treaty or not. On the basis of all the proposals, a final document is prepared. In the committee, textual negotiations are also discussed. The inclusion of comma and column in language took two days to finalise whether India opposed the proposal, but later, it was sorted out.”

J. Sai Deepak said: “The Copyright Board should be merged with the Intellectual Property Appellate Board (IPAB), which is a good step, but unfortunately the existing provisions of Copyright Board (Section 11) does not support this, it needs amendments.” IPAB seeks to amend the Copyright Act so as to transfer the functions of the Copyright Board to IPAB, which as of now deals only with matters relating to trademarks, patents and geographical indications."

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