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  • Copyright of Cinematograph Films and Sound Recording

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    Cinematograph Films

    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 film.

    (3) Without prejudice to the generality of sub-sec. (2) where that sub­ section applies-
    (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

    Tamil Nadu 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. 282-283.

    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 Cinematograph Act.

    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 earlier occasions

    (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 them.

    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 act

    Copyright in lyric and music and owner of cinematograph films

    Once 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 work."

    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 definition.

    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) (U.K.)

    (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 dramatic work.

    (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) [2000] 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 appeal that
    (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 of 'joy'.

    Sound recording

    Copyright 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
    (b) a 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 namely:
    (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; and

    (c) the name and address of the owner of the copyright in such work.

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