Premam Movie: Online Piracy and the film industry

Piracy is a term we are frequently hearing since, last two weeks, where the censor copy of the Nivin Pauly starrer Malayalam Super hit movie “Premam”, was available online. The movie already collected around 30 Crore in the Box Office. Since, then internet piracy and the copyright infringement became a hot topic of discussion across the media in the South Indian State, Kerala. Here, in this era of net neutrality and other trending issues of freedom of speech and expression in the internet world, online piracy is becoming a serious concern to the film industry, not only to the Malayalam film industry but also to the film industry across the globe. In this scenario, let us try to understand the legal aspects related to piracy, viz. what is piracy? When an act amount to piracy? Who has got the right over a movie for its public display? And of course the concept of copyright infringement and the punishment prescribed under the statute.

The term “piracy” used to refer to the unauthorized copying, distribution and selling of works in copyright. Piracy traditionally refers to acts of copyright infringement intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as “piracy”. Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term “piracy” in relation to copyright infringement, stating, “Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection” ((Panethiere, Darrell, “The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development“, UNESCO e-Copyright Bulletin. p. 2. (July–September 2005) available at http://portal.unesco.org/culture/en/files/28696/11513329261panethiere_en.pdf/panethiere_en.pdf last accessed on July 9, 2015)). Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of “wilful trademark counterfeiting or copyright piracy on a commercial scale ((Correa, Carlos Maria; Li, Xuan, Intellectual Property Enforcement: International Perspectives, Edward Elgar Publishing. p. 208. ISBN 978-1-84844-663-2 (2009))).”

By virtue of Section 13 (1) (b) of the Copyright Act, 1957, copyright subsist throughout India for cinematograph films. Subject to the provisions of Section 17 of the Copyright Act, 1957, the author of a work shall be the first owner of the copyright therein. By virtue of Section 2 (d) of the Copyright Act, 1957, the producer shall be the author in relation to a cinematograph or sound recording. For the purpose of this Act, “Cinematograph film” means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.

So here in the case of Premam movie, its producer Anwar Rasheed is the first owner of the copyright over the film Premam. Such copyright provides an exclusive right to Anwar Rasheed, to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire, or offer for sale or hire, any copy of the sound recording and to communicate the sound recording to the public. Here in this context it is essential to understand two concepts like reproduction and communication to public.

Communication to the public means making any work available for being seen, heard, or otherwise enjoyed by the public directly or by any means of display or diffusion. It is not necessary that any member of the public actually sees, hears or otherwise enjoys the work so made available. For example, a cable operator may transmit a cinematograph film, which no member of the public may see. Still it is a communication to the public. The fact that the work in question is accessible to the public is enough to say that the work is communicated to the public.

The right of reproduction commonly means that no person shall make one or more copies of a work or of a substantial part of it in any material form including sound and film recording without the permission of the copyright owner. For the purpose of this Act, reproduction occurs in storing of a work in the computer memory. Therefore, it could be even concluded that, downloading a movie or song and saving the same in a computer or laptop could also be an offence under this Act.

Hence, the act of uploading a copy of the movie Premam and even sharing the same through various online as well as offline media is a clear case of copyright infringement and the producer of the film Premam, Anwar Rasheed has every right to take necessary legal action against those who infringed his rights protected under the Copyright Act, 1957.

Any person who knowingly infringes or abets the infringement of;

  1. the copyright in a work, or
  2. any other right conferred by this Act, except the right conferred by section 53A;

shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

Provided that, where the infringement has not been made for gain in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

By virtue of Section 63 B, Knowing use of infringing copy of computer programme is also to be an offence. Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. Provided that where the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.

Therefore, it could be concluded that, even a person who has watched the film online could be punished under the provisions of Copyright Act, 1957 for the offence of copyright infringement. For the purpose of this Act, a copyright shall deemed to be infringed;

  1. when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—
  2. does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
  3. permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

when any person—

  1. distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
  2. makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
  3. by way of trade exhibits in public, or
  4. Imports into India, into India,” any infringing copies of the work: [Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.]

For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

Author’s Special Rights

Author: Abhinav Gaur, Research Associate

It was in the eighteenth century that a view that an author of the work shall have an exclusive copyright in his work which he has come up with using his own intelligence and creativity. Since, before the eighteenth century the publishers considered themselves under a major risk as they acquired work from the author and did its printing and publishing. This was time which led to a huge conflict on the concept of ownership and authorship of a work ((W.R. Cornish, “Intellectual Property: Patents, Copyright, Trade Marks and Allied Marks,” (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2003), 2nd Indian Reprint, at 297.)). Then statutory rights were made available to the author of the work to protect his rights and creations, vested in his work.

In India, the copyright in differentworks has been given to its creators bylaw governing the copyright. After independence of India, the Copyright Act of 1957 confers copyright or an ‘exclusive right’ to the author of the work. The Act explicitly provides that no copyright exists in any work, other than provided in the Copyright Act ((Section 16 of the Copyright Act, 1957)).

Copyright is a very distinct and unique kind of intellectual property right as it is produced out of a human intellect and comes into existence as soon as it is created. The copyright law does not require that the intellectual investment in a work must necessarily be absolutely original; rather, the standard of originality required for copyright is low ((Jagdish Prasad Gupta v. Parmeshwar Prasad Singh, AIR 1966 Pat. 1965.)).” The primary function of copyright law is to protect the fruits of man’s work, labor, skill or test from annexation by the other people ((Sulamanglam R. Jayalakshmi v. Meta Musical (AIR 2000 Mad. 454).)). There can be no copyright in an idea, subject matter, themes, plot or historical facts ((R. G. Anand v. Delux Films (AIR 1978 SC 1613).)), but it’s the expression which is of greater value.

AUTHOR’S SPECIAL RIGHTS

It is not just the economic safeguard against a property or material that is important for any author but also such person’s own moral rights and reputation in society that is more important than any materialistic consideration.

Justice Nandrajog has very beautifully said in a very prominent judgment ((Amar NathSehgalvs Union Of India (Uoi) And Anr., 2005 (30) PTC 253 Del)), “In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights”.

Author’s special rights ((P.P. Prabhakarvs Secretary, Government Of India, 1986 (2) Crimes 570, 29 (1986) DLT 248))are also known as moral rights; these rights protect the morals and repute of an author. Section 57 of the Copyright Act, 1957 provides for what are termed as “Author’s Special Rights. Established on Article 6bis of the Berne Convention, moral rights have two key elements:

(1) Right to claim authorship of the work (sometimes referred to as Rights of Attribution/Paternity Rights), and;

(2) Right against distortion, modification or mutilation of one’s work if such distortion or mutilation would be prejudicial to the author’s honor or reputation (or “Integrity Rights”).

The author of the work has the right to preserve and protect his moral rights. The protection guaranteed by the moral rights, yet, is different from the economic rights. Whereas the economic rights protect the economic interests of theauthor by preventing others from exploiting the work without the consent of the author, the moral rights focus on the protection of the author’s personality and repute in the society he stays in.

Section 57 of the Copyright Act strongly adheres to this observation and protects the moral rights along with the right of the author to claim authorship in the work, or in other words the right of paternity asAuthor’s Special Rights. As amended by the Copyright (Amendment) Act, 2012, Section 57 gives the author of the work a right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work.

FEW JUDICIAL PRONOUNCEMENTS

In the case of Wiley Eastern Ltd.v. Indian Institute of Management ((1995 PTR 53 (Del.).)), the Hon’ble court held that the words “Action prejudicial to his honor orreputation” under Section 57 (1) (b) refers only to the author of the work and not to any other person related with the work in any manner. Section 57 is a special provision for the protection of the special rights of the author. The object of the section is to put the intellectual property on higher footing than the normal objects of copyright. Further, that the language used in Section 57 is of widest amplitude and cannot be restricted to the literary’ expression only and also covers other expressions such as visual and audio manifestations, as was held in the case of Mannu Bhandariv. Kala Vikas Pictures Pvt. Ltd ((AIR 1987Del. 13)).

Also, in the case of Amar Nath Sehgalv. Union of India ((2005 (30) PTC 253 Del))the issue of moral rights was substantially discussed. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Sehgal, sued for violation of his moral rights. The court observed: “These [moral] rights are independent of the author’s copyright. They exist even after the assignment of the copyright, either wholly or partially.”

Furthermore, the case of Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr ((AIR 1987Del. 13))elaborated upon scope of Section 57 and observed that “Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed “even after the assignment either wholly or partially of the said copyright…” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.”