This article has been written by Mr. Shray Kumar Sharma, a 4th year student of Department of Law, University of Calcutta, Kolkata.
“The originality of genius in art as in science consists of a shift of attention to aspects of reality previously ignored, discovery of inner connections and the perception of familiar objects or events in a new light.”
Arthur Koestler, The Act of Creation, 1964
________________________________________________________________________________
Introduction
Theatrical works are covered under Section 2(h)1 of the Copyright Act, 1957 in the form of “dramatic works”. The term “dramatic works” typically includes “…any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film…”2. There is no specific definition or interpretation of “theatre” yet theatre as a form of entertainment and a subject of copyright is widely covered in the act under the said Section 2(h) of the Act of 1957 and Indian common law.
In common law, in the landmark case R.G. Anand vs. Deluxe Films AIR 1978 SC 16133, the court further extended the definition and the scope of the copyright protection of original theatrical works. The Supreme Court bench in the RG Anand case, held that a substantial reproduction of a dramatic work may constitute copyright infringement.
The Berne Convention4 and TRIPS5 Agreement established frameworks for defining dramatic works, yet national jurisdictions retain considerable discretion in this regard. Despite the CDPA 1988 of the UK lacking a comprehensive definition of ‘dramatic work,’ it acknowledges the inclusion of dance or mime. Judicial interpretation, notably from cases like Green v Broadcasting Corp of New Zealand6, emphasizes that a dramatic work must possess unity and coherence to be performable, as seen in scripted works. The law protects the script in theatre, considering it through the lens of its intended realisation through performance, typically by individuals other than the author. Furthermore, the evolution of a dramatic work often involves contributions from directors, actors, and producers during workshops and rehearsals. Therefore, a theatrical work, in its early stages, is fundamentally oriented towards performance.
Technology and Theatre Copyright
In recent years, theatre has somewhat experienced a noticeable decline in the overall footfall and audience retention. With the decentralisation of the internet and mass overreach of social media, there has been a steep rise in the issues of shorter attention spans among the 18-24 age group and an overall degradation in the quality of consumption of media. With the increase in popularity of short-form content. Conventional art like theatre has seen a sharp decline in audience’s interest.
Today, when we talk about theatre, we assume sitting in large gatherings in regal auditoriums with extravagant sound and visuals and this very idea has been subjected to a lot of backlash and scepticism especially in the last couple or three years. With the COVID-19 pandemic, the issues with theatre and its survival became a matter of huge concern as people stopped flocking to theatres and were confined to their homes due to multiple lockdowns7. Going out to watch and experience something like theatre was replaced by over-the-top and short-form content.
The bigger issue with theatre is not audience retention or losing foot-fall. The major issues that theatre faces today is the art itself being a relatively orthodox and logistically demanding medium of mass entertainment. With on-demand Network TV and subscription based over-the-top entertainment mediums becoming immensely popular, there has been a huge decline in the popularity of theatre arts. With the advent of new technologies and Internet becoming more affordable and accessible even in the remotest of areas, the question to be asked is, is it really the change in the preferences of theatre goers or is it the fact that the theatre art in itself has not been able to keep up and evolve with the changing times and technologies?
Web 4.0 and Theatre Copyright
There are multiple emerging technological advances and radical shifts in the medium of mass entertainment. With the advent of virtual reality, and augmented reality the thin line between the world we know today and WEB 4.08 has never been more fragile. With consumerism at its peak and unprecedented integration of AI into mass media, the issues of copyright infringement has only increased over the years.
One of the foremost challenges pertains to sustaining interest in theatrical art within an environment that predominantly embraces these technological advancements. The integration of VR and augmented reality (AR) elements into live performances prompts intricate inquiries regarding the ownership of digital content and its integration with the live theatrical experience. Determining rightful ownership of these technological components, particularly as they interface with live performances, presents a formidable challenge anticipated in the foreseeable future.
The emergence of artificial intelligence (AI) as a tool for content creation has sparked concerns among original creators. The anticipated transition to WEB 4.0 is poised to significantly alter our entertainment consumption patterns. In this context, the increasing mainstream adoption of virtual reality (VR) as a primary content medium necessitates the evolution of theatre to align with these transformative trends.
This challenge encompasses the delineation of ownership rights and intellectual property within these mixed-reality theatrical endeavours. It involves discerning the stakeholders entitled to claim ownership or control over the digitally infused aspects of live performances, whether it be playwrights, theatre companies, technology providers, or the performers themselves. Resolving this issue necessitates the establishment of comprehensive legal and contractual frameworks to address the complexities arising from this amalgamation of live theatre and digital technologies.
Furthermore, this paradigm shift demands a delicate balance between innovative technological integration and the preservation of the intrinsic essence and emotional connectivity inherent in live theatrical presentations. It necessitates a thoughtful approach to ensuring that technological enhancements complement and augment the live performance without overshadowing or diluting its core artistic integrity.
In essence, the imminent transformation in entertainment consumption, particularly within the realm of theatre, requires an interdisciplinary and comprehensive approach that fuses legal, artistic, and technological expertise to address these imminent challenges and opportunities.
The Delhi High Court’s decision in Digital Collectibles v. Galactacus Funware (2023)9 is a significant development in the field of copyright law in India and metaverse, as it suggests that copyright law may be able to be applied to digital assets in the metaverse, including NFTs. This means that original theatre works created in the metaverse may also be protected under the Copyright Act, 1957.
The court’s decision is based on the fact that copyright law protects original works of authorship, regardless of the medium in which they are expressed. This includes works of literature, art, music, drama, and cinematography. The court held that NFTs can be considered to be works of authorship, as they are unique digital assets that are created and owned by artists.
The court’s decision has implications for a wide range of original creators and businesses in the metaverse. For example, it means that theatre companies can now protect their original works from being copied or pirated in the metaverse. It also means that businesses that develop and sell NFTs can be more confident that their products are protected by copyright law.
Here is the reasoning of how the court’s decision could be applied to original theatre works in the metaverse:
- A theatre company could create an NFT for each original play that it produces. This would allow the company to track ownership of the play and to prevent unauthorised copies from being made.
- A theatre company could sell NFTs to fans of its plays. This would allow fans to own a unique digital asset related to the play and to support the theatre company financially.
- A theatre company could use NFTs to create a new type of interactive theatre experience. For example, the company could create an NFT that allows fans to vote on the outcome of a play or to participate in a virtual backstage tour.
The Road Ahead
Recently, an Indian generative AI drawing application/tool, RAGHAV10 was awarded copyright for an image generated by it called “Suryast”. This decision of the copyright office not only cleared the air around original and AI generated works’ copyright disparity but also paved the way for future playwrights and theatre artists to incorporate AI in their original works in order to expand their audience and adapt to newer technologies. This move could be perceived as a welcoming move by some of the new-age authors concerned or hesitant about incorporating AI in original works. On the other hand, theatre and dramatic art traditionalists and legacy artists may not want to incorporate AI and their original works may be threatened by the risks of AI.
Moreover, in the recent years there have been multiple instances of incorporation of generative AI with theatre arts. In 2019, the play “AI: When a Robot Writes a Play” was performed at the Edinburgh Fringe Festival11. The play was written by a computer program called GPT-3, which is a large language model developed by OpenAI. In 2020, the opera “The Passion of Joan d’Arc” was performed at the English National Opera. The opera featured a virtual choir of AI-generated singers12. In 2021, the play “The AI Who Loved Me” was performed at the National Theatre in London. The play featured a love story between a human and an AI.13
Additionally, in many countries, one of the main challenges in recognising AI as an author is determining how long copyright protection should last. In India, copyright law states that copyright protection lasts for the life of the author plus 60 years. This suggests that the Indian government intended to grant copyright protection only to living beings, similar to many other countries. Therefore, even if AI is granted authorship in India under the current copyright law, copyright protection for AI-generated works would be permanent. This may be perceived as unfair, discriminatory and an absolute violation of the principles of equality.
Conclusion
The landscape of theatre copyright in India is experiencing a significant transformation, driven by the fusion of emerging technologies and the dynamic nature of artistic expression. The convergence of theatre, technology, and copyright law is on the brink of reshaping the very essence of artistic creation and ownership.
The incorporation of AI into theatrical works has not only sparked discussions about ownership but has also broadened the horizons of creativity. India’s recent decision to grant copyright to an AI-generated image points towards a potential avenue for integrating AI into original works. However, this shift raises a divide between traditionalists, who may perceive AI integration as a threat to artistic authenticity, and contemporary creators who see technology as a doorway to innovation.
Furthermore, the inclusion of virtual and augmented reality in theatre performances presents a challenge in defining who owns the rights to digitally enhanced aspects of live shows—whether it’s the playwrights, technology providers, or performers. Addressing this issue requires a comprehensive legal framework.
The emergence of the metaverse also demands attention within copyright laws. The recent ruling by the Delhi High Court indicates that original theatre works created in the metaverse can be safeguarded under existing copyright regulations, offering new possibilities for protecting creations in an ever-expanding digital realm.
However, the potential permanence of copyright protection for AI-generated works poses a significant challenge. Given that current Indian copyright laws protect works for the life of the author plus 60 years, applying this to AI-generated creations, which lack a conventional “life,” may raise concerns about fairness and equity.
In conclusion, the future of theatre copyright in India is at a crucial juncture, seeking to harmonise the conservation of artistic integrity with the integration of advancing technologies. It requires a collaborative effort among legal, artistic, and technological domains to establish frameworks that both safeguard and nurture creativity while addressing the complexities posed by these transformative advancements. Moving forward involves navigating the evolving technological landscape while upholding the core principles of artistic creation and ownership.
References
1 Copyright Act, 1957, Section 2(h)(1)
2 Copyright Act, 1957, Section 2(h)(2)
3 R.G. Anand vs. Deluxe Films AIR 1978 SC 1613
4 Berne Convention for the Protection of Literary and Artistic Works: Berne Convention for the Protection of Literary and Artistic Works
5 TRIPS Agreement: https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
6 Green v Broadcasting Corp of New Zealand
7 Theatre and COVID-19: Examining How the Pandemic Financially Affected Production Crew Members in the Theater Industry: https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1345&context=honorscollege_theses
7 https://www.geeksforgeeks.org/web-4-0-intelligent-web/
9 Digital Collectibles v. Galactacus Funware (2023): https://indiankanoon.org/doc/97144838/?type=print
10 India recognises AI as co-author of copyrighted artwork: https://www.managingip.com/article/2a5czmpwixyj23wyqct1c/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork
11 AI: When a Robot Writes a Play at the Edinburgh Fringe Festival: https://www.theguardian.com/culture/2023/jul/30/a-bot-walks-into-a-bar-edinburgh-fringe-performers-use-ai-to-write-jokes
12 The Passion of Joan d’Arc at the English National Opera: https://en.wikipedia.org/wiki/The_Passion_of_Joan_of_Arc
13 The AI Who Loved Me at the National Theatre in London: https://www.nationaltheatre.org.uk/news/