This article has been written by Mr. Abdulla, a 4th year B.A.LL.B student of Aligarh Muslim University, Uttar Pradesh.

Introduction

A general principle is that there is a lawful action against every unlawful action. A lawful action is available against every crime in the civil as well as criminal unlawful actions against the person who causes harm to anyone. For example, if Mr. B is causing lawful hindrance in the way of Mr. A without any appropriate reason, Mr. A’s rights are protectable under the law of torts. In another example, If Mr. X stole any moveable property from the house of Mr. Y without his consent then Mr. X will be liable for theft under Indian Penal Code, 1860.

Likewise, there are some legal remedies available to the copyright holder under the Copyright Act,1957. Copyright Act gives legal protection to the original owners of the work. Meaning thereby, rights of those original owners are protected under the copyright act and legal remedies are also available to them. In this article, we’re going to discuss the legal actions and remedies available in the Indian Theatre under the Copyright Act.

History of Copyright Infringement in Theatrical Works

The history of copyright infringement in theatrical works is a complex tale that spans centuries, marked by evolving legal frameworks, technological advancements, and shifting cultural attitudes towards intellectual property. The origins of copyright law can be traced back to the Statute of Anne in 1710 in England, which granted exclusive rights to authors for a limited period. However, the enforcement of these rights in the theatrical realm faced numerous challenges. 

In the 19th century, the advent of printing and the rise of mass communication technologies posed new threats to playwrights and theatrical producers. Piracy of scripts and unauthorized performances became rampant, fueled by a lack of effective legal remedies. The emergence of the music hall culture in the late 19th and early 20th centuries further complicated matters, as performers often freely adapted and incorporated popular theatrical works into their acts without proper authorization. 

The motion picture industry brought a new set of challenges in the 20th century, with unauthorized adaptations and screenings occurring worldwide. As technology continued to advance, the digital age presented unprecedented challenges for copyright enforcement in the theater, with the internet facilitating widespread piracy and unauthorized distribution of scripts and performances. Legal battles ensued, testing the boundaries of copyright protection and the scope of fair use in the context of theatrical works. 

Today, the theater industry continues to grapple with copyright infringement issues, navigating the delicate balance between protecting the rights of creators and fostering a culture of artistic expression and innovation. The history of copyright infringement in theatrical works reflects the ongoing tension between the need for legal protection and the desire to promote a vibrant and dynamic creative landscape.

Copyright Infringement in India

Since the forms of creative works are numerous, i.e., literary, dramatic, musical, artistic, etc. the act which would constitutes infringement would depend upon the nature of the wok.

Section 51 of the Copyright Act, 1957, defines infringement of a copyright not specifically with respect to each kind of creative work, but in general terms.

According to Section 51 –

Copyright in any work is deemed to be infringed,

1. When any person without a license from the owner of the copyright, or the Registrar of Copyright, or in Contravention of the conditions of a license granted or any conditions imposed by a competent authority under the Act:

1. does anything, that the exclusive right to do which is conferred upon the owner of the copyright, or
2. permits for profit any place to be used for the communication of the work to the public where such communication constitute an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or

1. where a person,

1. makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for sale or hire any infringing copies of the work, or
2. distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or
3. exhibits to public by way of trade any infringing copies of the work, or
4. imports into India any infringing copies of the work except one copy of any work, for the private and domestic use of the importer.

The reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film will be deemed to be an infringing copy. In simple words, it is the commercial exploitation of the work in any form by a person without authority that constitutes infringement. 

Illustration- Mr. A Indian on a visit to a theater to watch the stage play stole the story of the play and made a movie on it. He’ll be liable of copyright infringement.

Test of Copyright Infringement in Theatrical works

Determining copyright infringement in theatrical works involves assessing whether there has been an unauthorized use of copyrighted material. Copyright law protects the original expression of ideas in a fixed medium, including theatrical works. Here are some factors to consider in testing for copyright infringement in theatrical works:

1. Ownership of Copyright:
   • Ensure that the allegedly infringed work is protected by copyright.
   • Confirm the copyright owner or owners of the original theatrical work.
2. Substantial Similarity:
   • Evaluate whether there is substantial similarity between the original work and the allegedly infringing work.
   • This involves comparing the specific elements of expression rather than the ideas themselves.
   • Similarities in plot, dialogue, characters, and other creative elements may be considered.

Arnstein v. Porter, This case established the idea that copyright infringement is not limited to literal copying and can also occur if there is substantial similarity in non-literal elements, such as theme or overall concept. 

Nichols v. Universal Pictures Corp., The plaintiff, playwright Anne Nichols, was the author of Abie’s Irish Rose, a 1922 play about a young Jewish man who marries an Irish Catholic girl against the wishes of both of their fathers, with hilarity ensuing. The defendant then produced The Cohens and Kellys (1926) (which the court referred to as “The Cohens and the Kellys”), a film based on a play about an Irish boy who marries a Jewish girl from feuding families, with hilarity ensuing. A lawsuit followed, with the plaintiff asserting copyright infringement based on the defendant’s use of similar story elements.

The question before the Court was whether the defendant’s film infringed the plaintiff’s copyright in the play by using similar elements.

In the court ruling, Judge Learned Hand emphasized that safeguarding literature extends beyond protecting the literal text. Imposing limitations solely on exact wording would potentially enable infringers to escape consequences by making minor alterations. The critical consideration becomes whether the portion copied constitutes a ‘substantial’ part. Nevertheless, establishing a clear boundary between the expression of ideas and the ideas themselves proves challenging, as Judge Hand pointed out. He asserted that the copyright in question did not encompass every conceivable derivation from the original play, as its content, to some degree, entered the public domain. In this specific case, no infringement occurred, as the copied  ideas pertained to universally accepted concepts and standard characters.

1. Access and Copying:
   • Determine if the party accused of infringement had access to the original work.
   • Establish whether there is evidence of copying, which can be direct or inferred from similarities between the works.

In recent case of Divya Sood Proprietor M/S The Body Care v. Renu Bajaj Proprietor M/S Perfect Body Care, the court observed that in order to constitute infringement there should be direct of indirect use of those features of the plaintiff’s works in which copyright subsists.

1. Independent Creation:
   • The alleged infringer may argue that they independently created their work without copying from the original.
   • Evaluate whether there is evidence supporting the independent creation of the allegedly infringing work.
2. License or Permission:
   • Check if there was any license or permission granted by the copyright owner for the use of the material in question.
   • If there was a valid license, the use may not be considered infringement.
3. Fair Use:
   • Assess whether the use of the copyrighted material falls under the fair use doctrine.
   • Fair use allows for limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research given under section 52 of the Act.

In case of Blackwood & Sons Ltd. v. A.N. Parasuraman, the court stated  that two points have been urged in connection with the meaning of  “fair” in “fair use” (1) that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper or oblique the use would be fair.

1. Transformative Use:
   • Consider whether the allegedly infringing work transforms the original material into something new and different, rather than simply copying it.
2. Public Domain:
   • Verify if the original work is in the public domain, as works in the public domain are not protected by copyright.

Remedies for Copyright Infringement

There are 3 kinds of remedies available against the infringement of copyright, namely:-

1. Civil Remedies

Injunction, damages or account of profit, delivery of infringing copies and damages for conversion.

1. Criminal Remedies

Imprisonment of the accused or imposition of fine or both.

1. Administrative Remedies

Administrative remedies consist of moving the Registrar of Copyrights to ban the import of infringing copies into India when the infringement is by the way of such importation and the delivery of such confiscated infringing copies to the owner of the copyright and seeking the delivery. 

Copyright Enforcement in Indian Theater

Golmaal Returns is a bollywood blockbuster movie. When it was released in 2008 it was alleged to be a copy of a 1973 movie titled Aaj Ki Taaza Khabar. The widow of the director of Aaj Ki Taaza Khabar allegedly accused Rohit Shetty (Director of Golmaal Returns) for copying her husband’s work. In his defense, Mr. Shetty said that he secured all the necessary permissions for the film and in addition he said that the movie Aaj Ki Taaza Khabar itself was a copy of a French play.

Copyright enforcement in Indian theater, as in many other countries, is crucial for protecting the intellectual property rights of playwrights, directors, and other creators. In India, the primary legislation governing copyright is the Copyright Act of 1957, which has been subsequently amended to align with evolving technologies and international standards. Following are the important aspects related to the copyright enforcement in Indian Theater:-

Here are some key aspects of copyright enforcement in Indian theater:

1. Copyright Protection:
   • The Copyright Act grants exclusive rights to creators of original works, including dramatic works such as plays and scripts.
   • In the context of theater, copyright protection extends to the script, music, and any other creative elements involved in the production.
2. Registration of Copyright:
   • While copyright protection is automatic upon the creation of a work, registering the copyright provides additional legal benefits.
   • Creators can register their works with the Copyright Office in India to establish a public record of their ownership.
3. Infringement and Legal Remedies:
   • If someone reproduces, performs, or distributes a copyrighted work without the owner’s permission, it constitutes copyright infringement.
   • The copyright owner can take legal action, including seeking injunctions to stop unauthorized performances and claiming damages for financial losses.
4. Performers’ Rights:
   • The Copyright Act also recognizes the rights of performers in their performances.
   • Performers have the exclusive right to reproduce, distribute, and communicate their performances to the public.
5. Collective Management Societies:
   • Organizations like the Indian Performing Right Society (IPRS) play a role in collective management of rights.
   • They work to ensure that creators and performers receive fair compensation for the use of their works in various commercial contexts.
6. International Treaties:
   • India is a party to international treaties such as the Berne Convention, which establishes minimum standards for the protection of literary and artistic works.
   • Compliance with these treaties is essential for harmonizing copyright laws across borders.
7. Digital Challenges:
   • With the rise of digital platforms and online streaming, there are new challenges in enforcing copyright in the theater industry.
   • Unauthorized streaming, sharing, or reproduction of theatrical works on digital platforms may require innovative enforcement strategies.
8. Awareness and Education:
   • Promoting awareness among creators, producers, and the public about copyright laws and the importance of respecting intellectual property rights is crucial.
9. Evolution of Copyright Laws:
   • The Indian government periodically amends copyright laws to address emerging issues and align them with global standards.

It’s important for individuals and organizations involved in Indian theater to stay informed about copyright laws, register their works, and take necessary legal steps to protect their creative endeavors. Additionally, collaborative efforts between creators, industry stakeholders, and government bodies can contribute to a robust and effective copyright enforcement framework.

Conclusion

In conclusion, the intricate landscape of copyright infringement in theatrical works, especially within the Indian context, reveals a historical struggle marked by evolving legal frameworks, technological advancements, and the delicate balance between the protection of intellectual property and fostering creative expression. The journey from the Statute of Anne in 1710 to the digital age underscores the persistent challenges faced by playwrights and theatrical producers. The Indian Copyright Act of 1957, supplemented by subsequent amendments, provides a legal foundation for protecting the rights of creators in the theater industry. The test for copyright infringement in theatrical works involves considerations of ownership, substantial similarity, access, copying, independent creation, licenses, fair use, transformative use, and public domain status. Remedies against infringement encompass civil, criminal, and administrative measures. Notably, the case of “Golmaal Returns” illustrates the complexities of copyright enforcement in Indian theater, where allegations of copying and counterclaims added layers to the legal landscape. In navigating this complex terrain, awareness, education, and collaboration emerge as key elements for a robust copyright enforcement framework, ensuring the continued vitality of the Indian theater while safeguarding the rights of creators.