This article has been written by Ms. Indrakshi Chaku, an upcoming law student
Introduction
Intellectual property refers to the property that is the creation of mind. The intellectual property rights are the rights conferred upon the owner of an intellectual property. In India, the scope of these rights is governed by various acts, namely:
- Trade Marks Act, 1999
- The Patents Act, 1970 (amended in 2005)
- The Copyright Act, 1957
- The Designs Act, 2000
- The Geographical Indication of Goods (Registration and Protection) Act, 1999
- The Protection of Plant Varieties and Farmers Rights Act, 2001
- The Information Technology Act, 2000
The copyright act and the trademark act lie at the confluence of Entertainment and intellectual property rights. Media and entertainment industry is the fastest growing industry in India. With the advent of cinema and OTT platforms, the industry is believed to generate around 4 crores of revenue by 2026. However, this drastic growth has also been accompanied by cut throat competition and threat to the works owned by various media corporations. This makes it imperative to analyse the current scope of these intellectual property rights in media and the remedies available for the infringement of the same. The article also addresses the emergence and conversion of works into a digital format, which raises a wide new array of issues regarding the protection of intellectual property in the digital space and the lack of a comprehensive legal framework in the country for the same
Relevant legislations
Indian copyright act,1957 – as per section 14 of the act, copyright is defined as the exclusive right to do or authorize the doing of specific activities (as defined in the act) pertaining to original literary works, dramatic, musical and artistic works, cinematograph films and computer programmes. The act also provides for the first ownership criteria under section 17 and 50 and for the relevant civil remedies under section 55 in case of breach of the act. The media and entertainment industry has witnessed a tremendous growth in past decade. The growth has also been accompanied by the emergence of plethora of creative work and cut throat competition. This has necessitated the protection of creative works created by media houses and entertainment industries, so as to protect the hard work, time and energy of the proprietor who has the ownership. Although there is no legal obligation to register the work, the registration provides a public record of the ownership and enables media and entertainment industries to leverage the work for financial benefits. Additionally, it makes seeking relief for infringement easier. However, there are certain conditions which need to be met by the media and entertainment industries to claim a copyright:
- Fixation in tangible form: section 14 of the copyright act provides for exclusive ownership rights over “material” artistic, literary, dramatic and musical work. Although the act does not mandate the fixation in tangible form, it does mandate the use of material form. Both the courts and the act are yet to specify what constitutes this “material form”. In Emergent Genetics India Pvt. Ltd vs Shailendra Shivam And Ors on 2 August, 2011 it was argued that fixation” (i.e., the existence of a literary or copyrightable work in tangible form) should not be a pre-condition for a copyright to subsist in a work in India. Attributing to article 2(2) of Bernes convention, such “fixations” are a matter of municipal legislations in the signatories rather than that of national legislation. In MRF limited Vs Metro tyres limited, it was held by the single judge bench of Delhi High court that the provisions of copyright act must be interpreted in consonance with the Bernes convention, therefore leaving the “fixation in tangible form” up to interpretation. Consequentially, it can be seen that that the courts do recognize the requirement of ‘fixation in a tangible form’ under the Copyrights Act but do not do so rigidly. They do not provide an entirely consistent or adequate explanation of what constitutes permanence in the nature of fixation of a copyrightable work.
- Originality: Section 13(1) of the Indian Copyright Act 1957 states that copyright subsists in “original literary, dramatic, musical and artistic works. However, the act does not explicitly specify the definition or the criteria of this originality. Consequentially, the same is left up to interpretation by the courts. Through the Judgement of the Supreme court in Eastern Book Company v. D.B. Modak India adopted the approach of modicum of creativity to determine the originality of a piece of work. The doctrine derives its meaning from a landmark US judgement, Matthew Bender and Co.v.W.Publ’g Co. 1998 where it was held that in order for a work to be considered original it must express a modicum of creativity, i.e.; it should not be copied and exhibits a minimal amount of creativity.
- Other criteria:
- Copyright can be obtained for both published and unpublished work
- In case a work is published abroad, media corporations must be domiciled in India, i: e they must be incorporated under any law in force in India
- The work must not be published before or be in public domain with an untraceable author/owner
- In case of anonymous or pseudonymous works, the identity of the author/owner must be declared within 60 years of the beginning of the calendar year for the copyright to subsist.
Trademarks act,1999: Trademark refers to a brand or part of a brand that enjoys legal protection. Section 2(1)(i)(V)(m) of the act defines “mark” in terms of inclusion of a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. In order to register a trademark, a body incorporate (media corporations in this case) needs to have the sole proprietorship of the mark in question. Trademarks are critical for the entertainment sector as the trademark infringement has increased with increased competition. It provides legal protection to intangible assets such as song titles, movie titles, motion pictures, and brand names. However, the title and name should be unique and creative. Common or descriptive titles are unlikely to be protected. Additionally, they must have acquired secondary significance. In the case of film names or titles, a single film’s title cannot be trademarked since it is an unaltered and restricted work, but a series’ title can be.
Current Issues and challenges
The rapid surge in digitalization has posed a challenge to protection of intellectual property in the media and entertainment industry. In the past decade, a plethora of literary, musical and other works have been converted into computer-based works, databases or other multimedia works. India, being a signatory to TRIPS agreement, extends copyright protection to these digitalized works and holds the offender liable in the court under the copyright act. However, the act does not provide any explicit definition of “multimedia works”, nor does it provide any remedies in case of copyright infringement of the same. This combined with the rise of internet and social media, where the works can be uploaded and reuploaded without the consent of the original owner and there is no reliable way to claim the ownership, has made it difficult to protect intellectual property in the media and entertainment industry. However, several amendments in the copyright act have tried to ensure protection to the ever-changing domain of digital property. The Indian judiciary has also played a crucial role in defending the ownership rights of the computer-based works. For e.g.: in UTV software communications Ltd. V 1337X , it was held that digital infringement and infringer are no different than physical infringement and infringer as copyright act makes no such distinction. Digitalization also poses the challenge of trademark infringement. Cyber-squatting is a major problem in this field. In Manish Vij v. Indra Chugh, AIR 2002 Del 243, cyber-squatting was defined by the court as an act of obtaining fraudulent registration with an intent to sell the domain name to the lawful owner of the name at a premium. Along with this, the issue of sale of counterfeiting, fakes and replicas of well-known brands by the online auction and shopping sites have also created a problem.
Conclusion
Intellectual property law is an emerging field in India and the country is on its way to establish a more uniform code for protection of intellectual property rights of the owners. Media and Entertainment industry has been existing and flourishing in India since time immemorable. However, the digitization of the artistic works has now compelled the industry to be more mindful of its ownership rights and seek remedy in case the same are infringed. The copyright act,1957 and the trademark act,1999 are the key legislations which currently govern the protection of creative works in the media, but since the distinction between digital and physical infringement is getting blurry every day, it is important that further amendments are made in these legislations to make them full proof.
References:
Indian law Journal
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