India has witnessed a robust growth in the entertainment sector in terms of content generation, employment generation and revenue generation. The main reason behind this growth is the creativity in its content. The challenges faced by this sector are also manifold. There is often uncertainty as to the amount of generated content that is original. Cases of copying and piracy are on the rise. It is of extreme importance that the basis of the entire industry is upheld, i.e. creativity.

The Indian entertainment industry widely faces legal challenges of Intellectual Property Rights. It has become a common phenomenon in the entertainment industry to violate copyright and trademark laws. In such cases, IPR laws need to be invoked.

All literary, dramatic, musical, artistic work, cinematograph films and sound recordings are protected for a specified duration. Copyright law protects these works from unauthorized copying or use of copyrighted works whilst also catering for infringement remedies. As with any rule there are exceptions such as “fair use” and “compulsory licensing”.

What constitutes copyright infringement?

Copyright confers a bundle of rights on the creators of work which enable them to reap financial benefits with due exercise of such rights. In the ordinary sense of the term, it implies that only the creator can make copies of the work and none other.

Infringement constitutes unauthorized reproduction, importation or distribution of the whole or a part of the copyrighted work. To claim infringement, the copyright owner must show that: (a) only he/she own the valid copyright, and (b) the infringer has exercised one or more of the owner's exclusive rights to reproduce, publicly distribute, perform, display or adapt the copyrighted work.Section 51 of the Copyright Act deals with infringement of copyright.

The Indian entertainment industry is continuously facing IPR issues where films and music are being copied from previous works of other people. The Bollywood industry has grown leaps and bounds and is the most successful film industry in India. Nevertheless, piracy and copyright infringement continue to be the obstacle in its path of success. Acclaimed producers and music directors of the industry have been accused of copyright violations, thereby giving a bad reputation to an industry which still has few talented and creative film and music makers.

Currently, the Ministry of Information and Broadcasting is planning to set up a ‘Copyright Board’ which will ensure firm implementation of IPR laws in the entertainment sector, especially the film industry.

Interpretation of Copyright Infringement by Indian Courts

The Indian judiciary has laid down tests to determine what constitutes copyright and what does not.

Key Case Law

In the celebrated case of R.G. Anand v. M/s Deluxe films* , the HonorableSupreme Court opined the following in relation to copyright infringement:

  • a) Copyright does not subsist in idea, subject matter, theme, plot, historical or legendary facts and violation of copyright can only occur in the form, manner, arrangement and expression of the idea of the original author.
  • b) It is presumed that when the same idea is developed in a different manner, there is ought to be similarity between them. For copyright infringement to occur, the copy must be a substantial and material one that shows that the defendant is guilty of piracy.
  • c) If a reader or viewer upon reading and seeing the works, is of the opinion that the subsequent work is a copy of the original.
  • d) Where the theme of both the works is same but expressed in a different manner so that the subsequent work is substantially new then there is no infringement.
  • e) There are material dissimilarities between both the works and the coincidences are circumstantial, there is no copyright infringement.

* AIR 1978 SC 1613.

Following the RG Anand case, Zee Telefilms Limited vs. Sundial Communications Private Limited , laid down the following two tests:

Average viewer test– If the impression created in the mind of the viewer is that the subsequent work is copied from the original then it is copyright infringement.

Substance/kernel test – the significance of the copied work is of importance here. If the entire work can subsist without the copied work then no copyright infringement occurs. However, if the copied portion is a very integral part of the work and the work loses it’s meaning without that part, then there is copyright infringement.

It is clear that the right time is here to take steps to uphold and safeguard the element of originality and creativity in the entertainment industry by creating IP rights awareness.