Shreya Aren, a 4th year student at the National Law School of India University has sent in this excellent guest post on the definition of ‘dramatic works’ in the Copyright Act, 1957. Clearly blessed with a sharper vision than most of us, she points out to how the Supreme Court may have actually quoted the wrong definition of ‘dramatic works’ in one of its judgments.
The Drama in the Definition of ‘Dramatic Works’
The search for the correct definition of “dramatic work” is a task in itself. There is a conflict amongst the bare acts – Universal defines it as including “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” while Professional omits the comma after acting. The Supreme Court in Manipal v. B. Malini Mallya, which is discussed later, has quoted the former definition. The correct definition as on the website of the Ministry differs from the draft given out by the government when the Copyright Act, 1957, first came into force. The definition on the website of the Copyright Office reads, “[A]ny piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting (no comma here) form of which is fixed in writing or otherwise but does not include a cinematograph work”.
An important question arises as to inclusion of a piece for recitation in dramatic work. If this includes a written work, say a play, then it would largely be redundant since section 14 of the Copyright Act, 1957, provides the same rights in a copyright for a literary work and a dramatic work. At the same time, the phrase “fixed in writing or otherwise” seems equally bewildering. Fixation is an important requirement under copyright law. However, the meaning of the phrase is not easily discernible. Is it to cover mere written or literary works under the definition of dramatic work? Or is the intention to provide protection to a dramatic performance, say stage performance of a play, whose expression, i.e. script, has been fixed in writing? In the leading case on this point, Norowzian v. Arks Ltd. [ E.C.D.R. 205], the court interpreted Section 3(2) of the U.K. Copyright, Designs and Patents Act, 1988, which reads “Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise…” to mean that copyright would not would be available for a stage performance for which there is no script.
In the case of Academy of General Education, Manipal v. B. Malini Mallya [AIR 2009 SC 1982], an argument was raised that literary work is different from dramatic work. The court observed that the difference between the two rests on the fact that a literary work allows itself to be read while a dramatic work “forms the text upon which the performance of the plays rests”. The court went on to say that the Copyright Act, 1957 makes a distinction between a ‘literary work’ and a ‘dramatic work’. A dance performance will not be covered under literary work but will be covered under dramatic work. The decision of the court rested on a will, which had bequeathed all rights in literary works to the respondent and also, named her as the residuary legatee. The question related to copyright in respect of a form of dance ballet, which had been developed by the testator. The court held that such rights (rights to seven verses of the ballet as well as its theatrical or dramatic form) went to the respondent by virtue of her being the residuary legatee. Therefore, the court impliedly differentiated between literary and dramatic works. It is interesting, although probably inconsequential, to note that the Supreme Court also quoted the incorrect definition of dramatic work.
The position of the law still remains unclear, with the seven verses also, arguably, having been regarded as dramatic work. A plausible solution is to allow for copyright of literary work in any written piece. This is protected from infringement since an adaptation to a dramatic work is also the sole right of the copyright holder. Dramatic works would be performances (pieces for recitation, choreographic work, entertainment in dumb show.) These might have a literary work as their basis. In such a situation, the incorrect ‘piece of recitation’ would perhaps be more befitting.