We all have noticed a recent trend in the film industry to remake old or popular films. Typically, remaking a film requires a license from the copyright holder of the original film. Sometimes, remakes can also be made by taking 'inspiration' from or by 'adaptations' of the original film. Such remakes do not require a license from the copyright holder. It is pertinent to understand the difference between taking inspiration/ adaptation from an original work and to make a blatant copy of the original work.
It is significant to note that the term "copy" is used as an alternative to "infringement" in some instances where a film is discussed in the Copyrights Act, 1957 ("Act"). From a bare reading of the Act, it becomes evident that under the Act, the term 'infringement' of a film means to make a carbon/ physical copy of such a film. This can be gleaned from section 141 of the Act. Moreover, only an original film can be copyrighted.
Since the term "copy" is not defined by the Act, it has been open to narrow interpretation by Indian courts and has been the subject of debates over the years. One such notable debate can be found in the matter of R.G. Anand V. M/s. Delux Films & Ors.2 in 1978. In this judgment, the Supreme Court gave the term 'copying' a wide(r) interpretation and laid down guiding principles to determine what constituted copying/ infringement of copyrights in artistic work. The guiding principles state that there can be no copyright in a theme/ idea and similarities could crop up in 2 different works if there is a common theme/ idea being used. However, the ultimate test on whether a work has been copied/ infringed is the impact the copied work has on the reader/ viewer's after watching both the works. These guiding principles are being applied to cinematograph films to this day.
In the recent judgment of MRF Limited v/s Metro Tyres Limited3, the Delhi High Court laid down the test for determining whether a remake is an 'inspiration' and/or 'adaptation' or simply, a copy of an original movie.
In this judgment, the Delhi High Court discussed section 13 of the Act, which states that, for a film to be copyrighted, it should be an original work. It was also held that making a "copy" of an original film without the owner's authorization is an infringement.
The Court also referred to the judgment in the matter of Shree Venkatesh Films Pvt. Ltd. V. Vipul Amrutlal Shah & Ors.4, where it was concluded that "a 'copy' is not merely a 'physical copy' of the film, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film." It was also held that in order to determine whether a film is a copy of another, one must look at "the substance, foundation, kernel of the film". In other words, taking a correct view of the matter, one can conclude that a 'copy' can also include 'adaptations' or 'inspirations' taken from the original film.
This change in interpreting the term 'copy' brings India's copyright laws in line with the Berne Convention, of which India is a party5. The Berne convention is one of the most important treaties on copyrights, and is aimed at protecting the literary and artistic works. Under the Berne Convention, a cinematograph work is to be treated as an original work and the owner/ producer of such work is to be given same rights as any other copyright holder.
1 Section 14 reads as follows: "copyright means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following act in respect of a work or substantial part thereof, namely:-
(d) in the case of a cinematograph film:-
(i) to make a copy of the film, including-
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;
(iii) to communicate the film to the public;"
2 R.G. Anand V. M/s. Delux films & ors. (1978) 4 SCC 118.
3 MRF Limited V. Metro Tyres Limited CS(COMM) 753/2017.
4 Shree Venkatesh Films Pvt. Ltd. V. Vipul Amrutlal Shah & Ors., 2009 SCC Online Cal 2113.
5 Berne Convention is administered by the World Intellectual Property Organization (WIPO) and its predecessor organizations, since it was adopted in 1886.
Previously published 5 August 2019
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