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:
- Economic Rights – Right of reproduction, public performance, adaptation, broadcasting, translation etc.
- Moral Rights – Right of author against any alteration in his work that might be injurious to his reputation.
- Original literary, dramatic, musical and artistic works
- Cinematograph films
- Sound recordings
- 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, “...in
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.
Conclusion
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
For
Biswajit Sarkar
[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]
http://delhicourts.nic.in/Sep08/WARNER%20BROS%20ENTERTAINMENT%20VS.%20HARINDER%20KOHLI.pdf
[iv]
Twentieth Century for Film Corp. v. Sohail Maklai Entm’t Pvt. Ltd., NM-2847
(Bombay H.C. 2010)
http://bombayhighcourt.nic.in/data/original/2010/NMS284710141010.pdf.
[v]
TRIPS: A More Detailed Overview of the TRIPS Agreement
http://www.wto.org/english/tratop_e/TRIPS_e/intel2_e.htm
[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.
