Sunday, August 19, 2012

Bollywood copying Hollywood: Protection of Intellectual Property in Film Industry

The phenomenon of remaking and borrowing ideas is not new to the film makers around the world. It has been present in the film making process since the birth of cinema. Earlier the audience reach of film industries was restricted to certain geographical areas. As Hollywood[i] was restricted to English speaking countries, likewise Bollywood[ii] was restricted to India and its neighboring countries. But globalization and the record breaking developments in Information Technology and the worldwide reach of internet has taken the films beyond nations.
At present, copyright infringement of the protected film scripts has become the main conflict between the two largest film industries of the world Hollywood & Bollywood. Hindi films have often been accused of copying entire frames from their Hollywood predecessors; leading legal scholars recognize this practice as copyright infringement. Until the summer of 2008, no lawsuit was ever filed by a US studio against an Indian film for violation of the studio’s intellectual property rights. The reason was Bollywood’s lack of profitability, India’s status as a third world country and traditionally distinct audiences, which never allowed Bollywood movies to get surfaced on Hollywood’s radar. But recent boom in Indian economy, increase in the profitability of Bollywood and overlapping audiences reversed the views of Hollywood studios towards Bollywood movies.
A long list of Bollywood movies is present where they have been accused of being copied from some Hollywood blockbuster. In 2007, Sony Entertainment, holding the copyright of Hitch (2005), threatened a lawsuit against Partner (2007), a Bollywood film, for infringing content.

In August 2008, Warner Bros. filed suit against the producers of a Bollywood film Hari Putter: A Comedy of Terrors, claiming that the title was too similar to the Harry Potter brand. The Delhi High Court ruled in favour of the defendants largely on Warner Bros. delay in filing the suit[iii].

In 2010, for the first time, a successful suit was filed by Twentieth Century against Sohail Maklai Entertainment for the unlawful remake of Twentieth Century’s 2002 thriller Phone Booth, into Knock Out. It was for the first time when an Indian court ruled that Bollywood infringed a Hollywood copyright. The Bombay High Court awarded Twentieth Century injunctive relief until Sohail Maklai Entertainment paid $340,000 in damages[iv].

On being accused of copyright infringement by Hollywood studios, Indian filmmakers argue that when they adopt a Hollywood film for remake for the Indian audience they make the film undergo a transitory process of “Indianisation” by adding songs, dance and other Indian stuffs which in all together results in an inherently distinct product from the original. 

Legal framework available
India’s copyright law, as laid down in the Indian Copyright Act, 1957 later amended by Copyright (Amendment) Act, 1999, is compatible to the Berne Convention on Copyrights, to which India is a party. Copyright consists of the following rights:
  1. Economic Rights – Right of reproduction, public performance, adaptation, broadcasting, translation etc.
  2. Moral Rights – Right of author against any alteration in his work that might be injurious to his reputation.
 The following come under the purview of copyright protection:
  1. Original literary, dramatic, musical and artistic works
  2. Cinematograph films
  3. Sound recordings
  4. Computer programmers 
The Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) are the two conventions which serve as the basis of current international standards regarding intellectual property rights. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1994, is built on these century old principles. United States and India being a member of World Trade Organization (WTO) are bound by the TRIPS[v] Agreement.

The relevant provisions of Berne Convention which is embodied in the TRIPS Agreement provide exclusive rights to author to grant or allow for reproductions and adaptations of their original work. When a film’s storyline is borrowed which is recognizably borrowed is known as “derivative work”.[vi],[vii] But when it is used without the knowledge or authorization of the author/creator it is known as unauthorized derivative works which is not only harmful for the author/creator but it will adversely affect the demand for the original work.

In both the U.S. and India, infringement of copyright takes place when a party engages in actions reserved for the copyright owner. In US, for copyright infringement the copyright owner needs to prove that he holds the ownership of the copyright and that substantial matter has been copied from his protected material. In India, copyright infringement takes place if the work of the defendant is a substantial and material copy of the first. Substantiality is measured by weighing both quantity and quality of the work copied.

The Indian and U.S courts had used the “ordinary observer” test to determine the presence of substantial similarity between two works. According to the “ordinary observer” test two works are considered as substantially similar if an ordinary viewer of reasonable attentiveness concluded that the defendant unlawfully encroaches the protected expression of the plaintiff.

The U.S. courts originated the “ordinary observer” standard from the audience test in Daly v. Palmer (1868)[viii]. In this case the Court observed, “If enough random original elements are copied, even if individually insubstantial, they may constitute copyright infringement in the aggregate”.

The Supreme Court of India established the same standard test in the R.G.Anand vs. Delux Films (1978)[ix]. The Supreme Court observed that, “ order to be actionable, a copy must be a substantial and material one that immediately demonstrates that an infringement has occurred. While simple additions, omissions, or modifications to the original work do not defeat the infringement claim, if the similarities between the two works appear coincidental and enough dissimilar elements exist to negate the intention to copy the original, infringement cannot be said to have occurred”. Courts in both countries thus analyze the quantity as well as quality of the copying in applying their respective versions of the ordinary observer tests.

Article 9.2 of TRIPS confirms that copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. This concept has been incorporated in both the legal system of US and India.  This Agreement empowers the author/ creator to bring private cause of action for infringement in any member country where the infringement is occurred or occurring. Further, this Agreement says that member countries are bound to accord same rights to the author/ creator of other member country as it gives to their own[x]. Hence, it can be understood that Indian or American film-makers could bring a suit of infringement in either nation’s domestic courts.

Bollywood’s appeal is no longer limited to the South-Asian subcontinent. Bollywood’s international appeal is on the rise. The success of recent movies pertaining to South-Asian themes and culture such as Slumdog Millionaire and Bend It Like Beckham, while not Bollywood productions, have helped Bollywood receive more international attention. Therefore, Bollywood’s reputation and viewership among international audiences will benefit from original scripts and productions. Originality will ultimately lead Bollywood to greater revenues than copying does. Remaking and borrowing ideas from other countries is nothing new and is not altogether a bad phenomenon, so long as proper authorization is obtained from the right holder. Borrowing ideas, scripts and remaking them in different cultural contexts are a part of international cinema but the right way to do it is to obtain the proper license. It should also be noted that mere copying of idea cannot be considered as copyright infringement, as under TRIPS agreement only expressions are protected and not the ideas. So, for proving the infringement the plaintiff should prove that there is copying of both ideas and expression.

By Arvind Kumar

[i] Film industry of USA.
[ii] The mainstream Indian film industry based in Mumbai, formally Bombay.
[iii] Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors. [IA No.9600/2008 in CS(OS) 1607/2008]
[iv] Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847 (Bombay H.C. 2010)
[v] TRIPS: A More Detailed Overview of the TRIPS Agreement
[vi] 17 U.S.C. Section 106- copyright owner has exclusive rights to prepare derivative works based upon the copyrighted work;
Copyright Act of 1957 Section (14)(a)(vi) (India)-a copyright owner has the exclusive right to authorize adaptations of the work.
[vii] 17 U.S.C. Section 101-Defines a derivative work to be one based upon one or more preexisting works;
Copyright Act of 1957 Section 2(a)(v) (India)-defines an adaptation as:  “in relation to any work, the use of such work involving its rearrangement or alteration.”.
[viii] Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) (No. 3,552)
[ix] R.G. Anand v. Delux Films (1978) 4 SCC 118
[x] Article 5 (1) of Berne Convention. This requirement is in compliance with the WTO’s goal of guaranteeing most-favored nation status to member countries and non-discriminatory treatment by and among members.