A Cinematograph film can be defined as 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 constructed as including any work
produced by any process analogous to cinematograph including video films.
The author of cinematograph film is the producer, as par section 2(d)(v)
of the copyright Act. Video films are deemed to be work produced by a
process analogous to cinematography.
According to Concise Oxford Dictionary a cinematograph film is a film
which by rapid projection through an apparatus called cinematograph
produces the illusion of motion on a screen of many photographs taken
successively on a long film.
Section 13(10) of the U.K. Copyright Act of 1956 defines the term as follows: Cinematograph film means any sequence of visual images recorded on
material of any description (whether translucent or not) thereby can be
capable of use of that material:-
(a) of being shown as a moving picture, or
(b) of being recorded on other material (whether translucent or not), by
the use of which it can be shown.
This definition would appear to include video cassette tapes.
Definition of the term Films as par UK copyright act s. 5B of the U.K. Act
of 1988 (1) Film can be defined as a recording on any medium from which a
moving image may by any means be produced.
(2) The sound track accompanying a film shall be treated as part of the
(3) Without prejudice to the generality of sub-sec. (2) where that sub
(a) References in this part to showing a film include playing the film
sound track to accompany the film, and
(b) References to playing a sound recording do not include playing the
film sound track to accompany the film.
(4) Copyright does not exist in a film which is, or to the extent that it
is a copy taken from a previous film.
(5) Nothing in this section affects any copyright subsisting in a film
sound track as a sound recording broadcasts.
This definition encompasses all known means of recording visual images
including film, videotape and disc.
All recordings involving a moving
image, including documentaries, full length feature films and television
productions, will therefore be uses of film.
Further, by defining a
Film by reference to a moving image, the definition is capable of covering
any new development in technology.
Video Tapes In Entertaining Enterprises v State of Tamil Nadu it was held that as a result of the inclusive definition of
cinematograph film so 2(f) of the Copyright Act, including any work prodl...:ed by
any process analogous to cinematograph, the exhibition of film in a
television through video tapes in which a cinematograph film is recorded,
will also fall within the definition of cinematograph film.
Video cassette recorder This term is not defined in the Act. Under S. 2(6) of the
Exhibition of Films on Television Screen through Video Cassette Recorders
(Regulation) Act 1984, a Video Cassette Recorder is defined as meaning a
cinematograph for the purpose of giving cinematograph exhibition of fIlm
recorded on video cassette tape.
In Restaurant Lee v State of Madhya Pradesh AIR 1983 MP 146, it was held
that the exhibition of movies by playing back pre-recorded cassettes in
restaurants falls within the ambit of, Cinemas under the Madhya Pradesh
Cinema (Regulations) Act 1952 that when a video cassette recorder is used
for playing pre-recorded cassettes of movies on TV
is certainly used as a tool for the representation of moving
pictures or series of pictures and comes within the definition of
cinematograph as defined by the said Act. This decision was approved and
followed in Dinesh Kumar Hanumanprasad Tiwari v State of Maharashtra AIR
1984 Born 34 where it was held
that when a VCR is used for playing pre-recorded cassettes of movies on
the television screen it is used as an apparatus coming within the
definition of cinematograph as defined under the Cinematograph Act 1952.
The Karnataka HC in w.P. No. 8932 to 8936 of 1983 batch has agreed with
the view expressed by the Madhya Pradesh HC. These cases are referred to
in Entertaining Enterprises v State of Tamil Nadu AIR 1984 Mad 278 at pp.
In Balwinder Singh v Delhi Administration AIR 1984 Del 379 (DB) (referred
to in Tulsidas v Vasantha Kumari (1991)1 LW (Mad) 220 at 229) it was held
that video and television are both cinematograph and that both are jointly
and severally apparatus for the representation of moving pictures or
series of pictures and come within the scope of s. 2(e) of the
Sound track in film Section 2(f) shows that the term cinematograph
film includes a sound track associated with the film, that is, the sounds
embodied in a sound track which is associated with the film.5
Originality There is no express stipulation in the Act that it should
be original as in the case of literary, musical or artistic works. But
copyright will not subsist in a cinematograph film if a substantial part
of the film is an infringement of the copyright in any other work.6 It,
therefore, follows that in order to be entitled to copyright a
cinematograph film should be original, that is, it should originate from
the producer and not a copy of some other copyrighted work.
Copyright in cinematograph film Under s. 14(d) the author of a
cinematograph film in which the copyright subsists has the following
exclusive rights: (1) to make a copy of the film including a
photograph of any image forming part thereof
(2) to sell or give on hire, or offer for sale or hire, any copy of the
'film, regardless of whether such copy has been sold or given on hire on
(3) to communicate the film to the public. The section does not refer to
the sound recordings which forms part of the film. The sound recordings
embedded in the film has a separate copyright of its own which is not
affected by the copyright in the film as a whole see s. 13(4).
Copyright protection is available only to the cinematograph film including
the sound track. The cine artists who act in the film are not protected by
copyright law for their acting.
The actors or performers in the film are conferred certain special rights
called Performer's Rights, see s. 38. For details see Chapter 12.
Since a film includes performance by various actors, dancers and so on,
their permission is required to film their performances. This is usually
done by separate contracts with the performers.
To communicate the film to the public means making the film available for
being seen or heard or otherwise enjoyed by the public directly or by any
means of diffusion regardless of whether any member of the .public
actually sees, hears or otherwise enjoys the film so made available.
Communication includes communication through satellite or cable or any
other means of simultaneous communication to more than one household or
place of residence including residential rooms of any hotel or hostel.
Communication to a private audience is not included. What is prohibited is
the commercial exploitation of the film without consent of the owner or
without the license of the owner of the copyright.
The cine artiste who
acts in the film is not protected by copyright law for his acting.
A cinematograph film may be taken of a live performance, like sport
events, public functions, or dramatic or music performance or it may be
based on the cinematograph version of a literary or dramatic work. In the
latter case if the corresponding literary or dramatic work is copyrighted
the making of the film will require the consent or license of the owner
of the copyright in the literary or dramatic work since that copyright
includes the right to make a cinematograph film. Similarly if the film has
a sound track recording of music the producer will have to obtain the
consent of the verse writer and the song writer if copyright subsists in
Effect of censorship on copyright
Where the owner of a cinematograph film has committed an offence under the
law relating to film censorship and is liable to prosecution for that
offence, the question arises whether it would affect his right to
copyright in the film. Since the subsistence of copyright depends only on
the provisions of the Copyright Act it would appear that the fact that the
owner has not complied with the film censorship requirements will not
affect the subsistence of copyright in the film or the enforcement of
remedies against infringement.
Artists' performance in a film The performance of an actor is not a
work which is protected by the Copyright Act. Thus the performance of
cine artists is not protected by copyright law. However, the Copyright
(Amendment) Act 1994 has provided certain special rights to performers
called "Performer's Rights" as mentioned in section. 38 of the
Copyright in lyric and music and owner of cinematograph filmsOnce
the author of a lyric or a musical work parts with a portion of his
copyright by authorizing a film producer to make a cinematograph film in
respect of his work and thereby to have his work incorporated or recorded
on the sound track of a cinematograph film, the latter acquires by virtue
of section 14(d) of the Copyright Act on completion of
the cinematograph film
a copyright which gives him the exclusive right inter alia of performing
the work in public for example to cause the film in so far as it consists
of visual images to be seen in public and in so far as it consists of the
acoustic portion including a lyric or a musical work to be heard in public
without securing any further permission of the author (composer) of the
lyric or a musical work for the performance of the work in public. In
other words, a distinct copyright in the aforesaid circumstances comes to
vest in the cinematograph film as a whole which in the words of the
British Copyright Committee set up in 1951 relates both to copying the
film and to its performance in public.
The composer of a lyric or a musical work However, retains the right of
performing it in public for profit otherwise than as a part of the
cinematograph film and he cannot be restrained from doing so. In other
words, the author (composer) of a lyric or musical work who has authorized
a cinematograph film of his work and has thereby permitted him to
appropriate his work by incorporating or recording it on the sound track
of a cinematograph film cannot restrain the author (owner) of the film
from causing the acoustic portion of the film to be performed or projected
or screened in public for profit or from making any record embodying the
recording in any part of the sound track associated with the film by
utilizing such sound track or from communicating or authorizing the
communication of the film by radio-diffusion, as s. 14(1)(c) (now replaced
by the new s.14(d) of the Act expressly permits the owner of the
copyright of the cinematograph film to do all these things. In such cases,
the author (owner) of the cinematograph film cannot be said to wrongfully
appropriate anything which belongs to the composer of the lyric or musical
The definition of cinematograph film only protects the film as well
as the sound track which is married to the film proper (i.e. the visual
sequence) The copyright in the entire film may cover portions of the film
in the sense that the owner of the copyright in the film will be entitled
to the right in portions of the film; but this idea or concept cannot be
extended to encompass an idea that there would be one owner of the
cinematograph film and different owners of portions thereof in the sense
of performers who have collectively played roles in the motion picture.
Motion picture whether a piece for recitation or a choreographic work
or entertainment in dumb show From the definition of "dramatic work" a
motion picture cannot be regarded as a piece for recitation or a
choreographic work or entertainment in dumb show. Under s. 2(h), these
three types are specified only for the scenic arrangement or acting form
of which (in the three types) is fixed in writing or otherwise. When this
requirement is satisfied then the work under consideration will amount to
a "dramatic work" which will be protected. The words "or otherwise" found
in the definition of "dramatic work" seems, only to provide for the modern
means of recording such as a
tape-recorder or a dictaphone and similar instruments. The concluding
portion of the definition of "dramatic work" in the sub-section, excludes
a choreographic film.
Thus the dramatic performance of a cine artiste
which is fixed or recorded in the film negative will not be "dramatic
work" within the meaning of this definition and therefore protected by the
Copyright Act. Although the definition is an inclusive definition, it
would not be permissible to extend it to cover all cases where the work
can be popularly described as exertions or efforts of a dramatic nature.
The words "fixed in writing or otherwise" would seem to suggest a point of
time prior to the acting of scenic arrangement, which requirement would be
required to be satisfied before the work can qualify to be a "dramatic
work" and secure protection. It is debatable whether the record ofthe
acting or scenic arrangement made on a film after the scene is arranged or
acting done or contemporaneous therewith, would be covered by the
Film-whether dramatic work-whether recording of dramatic work substantial
part-55. 1(1),3(1),3(2), 5B of 1988 Act and Copyright Act 1956, s. 48(1)
(1) The expression 'dramatic work' should be given its ordinary and
natural meaning, which was a work of action, with or without words or
music, which was capable of being performed before an audience.
(2) A firm would often, although not always, be a work of action which
was capable of being performed before an audience and could therefore fall
within the expression 'dramatic work' in s. l(a) of the Copyright, Designs
and Patents Act 1988.
(3) A film could be both a recording of a dramatic work and a dramatic
work in itself, or alternatively, a recording of something-which was not a
dramatic work, or a dramatic work in itself but not a recording of a
(4) There is no Copyright in mere style or technique.
(5) In order to interpret the 1988 Act consistently with. the Berne
Convention, the cinematographic works referred to in the convention have
all to be included within the Acts category of dramatic works, even in
cases, where the natural meaning of 'dramatic work' did not or might not
embrace the particular film in question (per BUXTON, LJ.).
See Norowzian v Arks Ltd. (No.2)  FSR 363 (CA). In this case the
question as to whether a short film called "joy" consisting of a man
dancing to music was infringed by another film called 'Anticipation'. In
both films the visual impact was produced by an editing technique known as
'jump cutting'. Both were advertising films. It was held by the court of
(1) since 'joy' was a work of action capable being performed
before an audience it was a dramatic work
(2) 'joy' was not a recording of
a dramatic work;
(3) 'Anticipation' was not a copy of a substantial part
Sound recordingCopyright exist in a sound recording Sound recording
means a recording of sounds from which such sounds may be produced
regardless of the medium on which such recording is made or the method by
which the sounds are reproduced.
Copyright will subsist in a sound
recording only if it is made as par the Act. Copyright will not subsist in any
sound recording made in respect of literary, dramatic or musical work, if
in exist in the making the sound recording, or that copyright in such work has been
violated or infringed.
The right of sound recording is different from the subject matter
recorded as they are the subject of independent copyrights. The author
of a sound recording is the producer.
In the present U.K. Copyright, Designs and Patents Act 1988, s. 5A
defines "sound recording" as follows:
"Sound recording" means-
(a) a recording of sounds from which the sounds may be reproduced or
recording of the whole or any part of a literary, dramatic or musical work,
of which sounds reproducing the work or part can be produced. irrespective
of the medium on which the recording is made or the method by which the
sounds are reproduced or produced.
Copyright does not subsist in a sound recording which is or to the extent
that it is a copy taken from a previous sound recording.
Recording of music Musical works and sound recording embodying the
music are considered separate subject-matters for copyright. Thus
copyright in the recording of music is separate from the copyright in the
music. Copyright in the music vests in the composer and the copyright in
the music recorded vests in the producer of the sound recording. Where the
song has not been written down and the composer who is also the performer
records the song two copyrights come into existence at the same time, one
for the music and one for the sound recording.
Details to be included in sound recording and video films
section 52A Under s. 52A introduced by the Copyright (Amendment) Act 1984,
the following particulars should be displayed on sound recording or video
films or video cassettes, as the case may be, or any container thereof
(a) the name, and address of the person who has made the sound recording
(b) the name and address of the owner of the copyright in such work
(c) the year of its first publication.
Video film or video cassette-so 52A(2) (a) if such work is a cinematograph film required to be certified for
exhibition under the provisions of the Cinematograph Act 1952, a copy of
the certificate granted by the Board of Film Certification under s. 5A of
that Act is respect of any work
(b) the name and address of the person who has made the video film and a
declaration by him that he has obtained the necessary license or consent
from the owner of the copyright in such work for making such video film;
(c) the name and address of the owner of the copyright in such work.