By Amritha Vyas, Associate Advocate Gajria and Co, Advocates and Solicitor
amritha@rgajria.com | Dec 7, 2020
“Cinema constantly remakes itself, but whether this is understood as homage, imitation or theft depends upon historically specific technologies such as copyright law and authorship, film reviewing and exhibition practices.”
In the matter of copyright infringement for a film, there has been a mixture of decisions by the Indian courts, each presenting a diverse opinion on the point – On one hand, A single judge of the Bombay High Court has in Star India Private Limited v. Leo Burnett (India) Pvt. Ltd. (2003) 27 PTC 81 (Bom) held that – ‘to make a copy of the film’ would mean to make a physical copy of the film itself and not another film which merely resembles the film contrary to which, the Division Bench of the Calcutta High Court in Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah, 2009 SCC OnLine Cal 2113 has held that – ‘a film must not be a copy of any other work, including any other film.’
The infringing copy in case of cinematographic film has to be an exact copy made by the process of duplication or whether it refers to another work which substantially, fundamentally, essentially and materially resembles the original film.
The above two cases were considered by the Delhi High Court in MRF Limited vs. METRO Tyres Limited.
Facts pertaining to the case:
MRF Limited, engaged in the business of manufacture, marketing and sale of tyres. In order to widely promote, publicise and advertise a particular product of its range of tyres, MRF Limited produced an audio-visual advertisement on TV media and YouTube in June 2015.
In October 2016, MRF noticed that METRO Tyres Limited , which was also involved in the business of manufacturing and marketing of tyres, had produced an advertisement, which MRF considered to be a material copy of their advertisement thereby infringing their copyright. Thus, MRF filed a suit before the Delhi High Court for copyright infringement.
The issue was whether the said advertisement constituted a ‘cinematograph work’ under the Copyright Act, 1957? And was the Plaintiff entitled to protect it under Section 14 of the Copyright Act, 1957?
Plaintiff stated that the Defendant’s advertisement showed a similar sequence, form and expression as compared to the Plaintiff’s advertisement. Plaintiff submitted that in a suit for copyright infringement of a cinematography film, there is an overall view and not a micro analysis.
The Defendant emphasized on the word ‘original’ which is not used with respect to cinematograph film as per the Copyright Act, 1957. The Defendant contended that a cinematograph film is treated differently under Section 13(3) of the Copyright Act, 1957 as all the underlying works which contribute to the making of a film are protected independently. The Defendant submitted that the expression ‘to make a copy of the film’ meant to make a physical copy of the film itself and not another film which merely resembled the original film.
Judgement:
The Delhi High Court’s observation was that copyright subsists in a ‘cinematographic film’ as a work independent of underlying works that come together to constitute a film and though the copyright subsists in the constituent parts, yet the copyright vests separately and independently in the composite whole – the film.
Copyright subsists in a ‘cinematograph film’ as a work independent of underlying works that come together to constitute it. A film must not be a copy of any other work, including any other film.
A cinematograph film is normally an original work as it is an ‘intellectual creation’. The Court pointed out that it was not about controlling the idea or a subject or the underlying work but of protecting the ‘intellectual creation’.
The decision passed by the Supreme Court of India in the case of R.G. Anand v. M/s Delux Films and Ors. 3 was considered important and was relied upon, as it elucidated that in order to be actionable, the copy must be substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. The test of infringement is of an overall impression of an average viewer and not a microscopic analysis. The Court thus held that the test laid down in R.G. Anand’s was not confined to a literary work and was of general application and had been applied as such since then.
Further, it held that ‘to make a copy of the film’ does not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film. Accordingly, it held that the blatant copying of fundamental/essential/distinctive features of the plaintiff’s advertisement on purpose would amount to copyright infringement.
Consequently, the Court had to compare the substance and the foundation of the two advertisements to consider whether one was “by and large a copy” of the other and whether an average viewer would get an unmistakable impression that one work was a copy of the other.
The Court was also of the opinion that the Copyrights Act, 1957 has to be interpreted in consonance with the Berne Convention which protects the film as an original work and that the owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work.
Conclusion:
The expression ‘to make a copy of the film’ does not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film.
However, after applying the test laid down in R.G. Anand v. Deluxe Films, Hon’ble Justice Manmohan held that the two advertisements are neither substantially, materially or essentially similar. Hence, the Plaintiff’s plea for injunction was dismissed.
