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Copyright Infringement In Remake Films In India

Over the course of decades, the mainstream Bollywood industry has recreated copyrighted Hollywood films for the Indian market without fear of any kind of legal ramifications and has formulated into an established pattern. Although the "concept" of remaking Hollywood films into Bollywood storylines has been floated about for some years, it has lately come under the radar from Hollywood, which accuses Indian filmmakers of copyright infringement and other violations of their Intellectual Property Rights.

The United States of America and India are direct signatories to the 1866 Berne Convention for the Protection of Literary and Artistic Works, as amended in 1971 by the Paris Convention. India and the United States are obligated by the 1994 Trade-Related Aspects of Intellectual Property Rights ("TRIPS") agreement as WTO members[1].

TRIPS[2] requires all WTO members to adhere to the Berne Convention and Paris Act2 rules and introduces intellectual property rights into the realm of commerce. TRIPS covers phrases but not "ideas, techniques, methods of operation, or mathematical concepts," as represented in the United States and India's respective intellectual property legislation.

For the purposes of enforcing copyright violations involving Hollywood and Bollywood films, the relevant articles of the Berne Convention that TRIPS makes enforceable respect writers' exclusive rights to authorize reproductions and adaptations of their original work, including cinematographic material.[3] When a film draws the plot and protected material from another work, it is referred to as a "derivative work." Unauthorized derivative works are deemed damaging if the derivative is seen by society as being sufficiently close to the original that it negatively impacts demand for the original.[4]

Literature Review
  1. Rachana Desai[5] examines India's film industry, which produces more films than any other country in the world, as well as the country's lengthy history of producing "cultural copies" rather than unique works. The advent of the internet and improved global contacts bridged the divide between westerners and Indians, acquainting them with Indian film scenarios. Thus, in light of the case Bradford v. Sahara Television, this article examines the ramifications of foreign copyright infringement in India as a result of the entertainment industry's globalization. Additionally, the article discusses the ramifications of TRIPS, a WTO-mandated legal framework that governs intellectual property rights infringement in India. As such, this article examines potential barriers and outcomes in light of local and international law, as well as the Bradford case's consequences.
     
  2. Tejendra Meena, Utsav Kum, and Siddharth Bhagat[6] examines the underlying reasons for entities in Bollywood to imitate American entertainment. It then establishes the nature, frequency, and scope of Bollywood's plagiarism. The repercussions of Indian filmmakers' copies and imitations of American films are briefly discussed. Additionally, it discusses pertinent United States and Indian copyright laws and analyses whether any of Bollywood's copying techniques and practises constitute actionable copyright infringement.

    This article discusses the difficulties associated with enforcing Hollywood copyrights in India and updates readers on recent positive developments in Indian copyright law pertaining to Hollywood. Lastly, the final section of this paper discusses how the international intellectual property enforcement mechanism established by the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") is effectively inconsistent to the Hollywood claimants.

    As a remedy for the infringement, this article ultimately proposes a special contractual agreement between Hollywood and Bollywood film production entities that discourages unauthorized remakes and establishes transaction models to facilitate compensation for copyrighted work owners. This agreement would establish more effective and expeditious remedies and lay the groundwork for improved relations and increased cooperation between the two film industries.
     
  3. Basi, Hariqbal[7] examines the international standard for the intellectual property rights infringements and also enunciates the standard of review for such cases: "Ordinary Observer Test". The article draws comparison between the copyrights law in US and India and their enforcement mechanisms. Thus, the article examines the ramifications of foreign copyright infringement in India as a result of the entertainment industry's globalization, with the help of a case: (Partner v. Hitch). Lastly, the article discusses as to why litigation is not the optimal response and hence cannot yield favourable outcomes for Hollywood in their enforcement of copyrights infringement in India.

Issues Addressed
  1. Standard of Evaluation in US & India
    While considering the factors that constitute illegal "derivative" work in Copyright, different standards of tests are referred to by the various jurisdictions. Both Indian and US courts use a variant of the "ordinary" observer test to determine if two works bear a high degree of resemblance. The "Ordinary Observer" test determines whether two works are substantially similar if an ordinary observer of reasonable diligence would infer that the defendant illegally copied the claimant's protected speech. [8] According to the Supreme Court of India, a copy must be sufficient enough to demonstrate that an infringement occurred.[9]
     
  2. Differentiating between an Idea and Expression
    Copyright protection is applicable only for the expression of an idea in its original form.[10] A "thought" cannot be protected by copyright. If a work just appropriates the original work's concept, it is not regarded to infringe on the copyrighted work. To demonstrate this notion further, consider that a certain film, for example, is about a particular subject. The filmmakers use a variety of techniques to convey their message. A following film is still about a topic, but it expresses it via a different medium. In this instance, the second film does not infringe on the first since it communicates a common, but unprotectable, concept differently from the first film.
The aforementioned issues shall be expanded and discussed at length in the paper.

Research Objective:
  1. To expand on the idea of creating a universal standard of evaluation for dealing with copyright infringement especially in the film industry
  2. To discuss the key factors that determine the difference between and idea and expression when dealing with "derivative" movies that are inspired from Hollywood.
  3. The paper would aim to take inspiration from foreign jurisdictions and suggest new and creative ways of preventing copyright infringement in cases of inspired work.

Research Methodology
The present paper would be a combination of doctrinal and empirical research and has relied on both primary and secondary sources of research. Through its analysis of various literature on the concept of "Copyright Infringement in Films", the authors have identified a research gap with special emphasis of the Indian jurisdiction.

Moreover, the present paper seeks to work on preventing lack of distinctiveness and looks forward to an empirical data analysis based on data collected from companies and people across the spectrum which would help them analyze the public opinion which forms the most important factor for determining distinctiveness.

Conclusion/Expected Outcome
Having spent decades recreating Hollywood films without gaining official rights, Bollywood filmmakers have now found themselves the target of lawsuit or the threat of litigation by Hollywood studios attempting to protect their intellectual property rights against the Indian film industry. Many Bollywood filmmakers believe that their recreated films should be treated as original goods because of the creative labour necessary to Indianize the remakes, and hence do not consider their practice of reproducing foreign works to be a violation of intellectual property rights.

The expected outcome of this research outline would be as follows:
  1. To identify the standard of evaluation and suggest incorporating a test in the TRIPS agreement for universal acceptance.
  2. To successfully highlight the factors that distinguish ideas from expression and its applicability in the context of "derivative" works in Indian movies.

End-Notes:
  1. Timm Neu, Bollywood is Coming! Copyright and Film Industry Issues regarding International Film Co-Productions Involving India, 8 SAN DIEGO INTL L.J. 123, 133 (2006)
  2. TRIPS: A More Detailed Overview of the TRIPS Agreement, http://www.wto.org/english/tratop e/TRIPS_e/intel2_e.htm
  3. Article 2(3) of the Berne Convention
  4. Jishnu Guha, Time for India's Intellectual Property Regime to Grow Up, 13 CARDOZO J. INT'L & COMP. L. 225, 232 (2005).
  5. Rachana Desai, Copyright infringement in Indian film industry, Vanderbilt Journal Of Entertainment & Technology Law, Volume 7, Issue 2 - Spring 2005, https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1219&context=jetlaw (Last visited Mar, 9 2022).
  6. Tejendra Meena, Utsav Kum, and Siddharth Bhagat, The Impact of the Bollywood Industry to the Global Economy & Efficacy of the Copyright laws in association with Indian Law "Can the Concept of Indianization be used as a Defence to Evade Legal Liability for Bollywood?", Ijrar, Volume 5, Issue 3, https://bit.ly/3tI58wK (Last visited Mar, 9 2022).
  7. Hariqbal Basi, Indianizing Hollywood: The Debate Over Copyright Infringement By Bollywood, UCLA Entertainment Law Review, Vol. 18, Full 360: How the 360 Deal Challenges the Historical Resistance to Establishing a Fiduciary Duty between Artist and Label, A (escholarship.org) (Last visited Mar, 9 2022).
  8. Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F. 2d 487, 489 (2d Cir. 1960)
  9. R.G Anand v. Deluxe Film, A.I.R. 1978 S.C. 1613
  10. Justice P.S. Narayana, Intellectual Property Law in the New Technological Age, (2002) PL WebJour 6

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