We are glad to bring to you a guest post by our Fellowship applicant Shubhi Sharma. Shubhi is a 4th year student at Rajiv Gandhi National University of Law, Punjab. This is her first submission for the Fellowship.
Online Film Reviews: A New Form of Online Piracy
Shubhi Sharma
As somebody born in the 90s, I have been a part of a terrific transition in relation to the cinematic world. Within a span of 20 years or so, this film industry has gone from posters to trailers to teasers to month long promotional events. Resultantly, almost every week there is a review about a Friday release followed by web posts about the general opinion of the public. So, the weekend is not just about popcorn and cola anymore; it’s more about catching reviews of not just acclaimed film critics but also of about anyone else with an opinion on it.
There was a time when professional film critics would review a film and inform the awaiting audience if it is a good or a bad film, do the actors perform well in it or if it is a film worth to spend money on along with a subtle hint about the plot. Such reviews contained the suspense about the film among the viewers. However, nowadays there is less drive in people to go and watch a film. While illegal live streaming of films is an active reason for this loss in audience the other passive reason responsible for such reduction in a film’s audience is the abundant availability of online film reviews which, as I argue, is a new form of online piracy to which traditional rules of fair use cannot apply.
But first things first, let us have a look at the relevant concepts.
What is Online Piracy?
To put it simply, any copyright holder (rights in respect of films are covered by Copyright Law) has the exclusive right to distribute, reprint, translate, and license the work created, either as a whole or any part thereof, to anyone and piracy as an act of infringement, is the unauthorised use of the copyrighted work. Online piracy is the extension of the same act but only on web space. Forms of online piracy vary according to the platform they operate on. New addition to the list is, in my opinion, online film reviews. However, theoretically, film reviews are saved by the doctrine of fair use from being constituted as an act of infringement.
Doctrine of Fair Use; Section 52 of the Copyright Act, 1957:
Emancipating from the doctrine of equity, fair use stands as an exception to unauthorised reproduction or use of copyrighted material which would otherwise tantamount to infringement. Section 52 outlays ‘review’ as a form of fair use and penning a film review on whatsoever platform would fall under this category. Basic purpose of section 52, in the form of public interest, is to extend protection to freedom of expression under Article 19(1) of Constitution of India. However, this protection does not operate in absolutism. If the review is an act of infringement, it cannot be permitted merely because it is claimed to be in public interest.[1]
Infringement Defined:
When it comes to motion pictures, defining an act of infringement is an improbable task. This was set easier in the case R.G. Anand v. Deluxe Films[2], wherein the court held that literal imitation of copyrighted work, albeit slight variation, would be an act of infringement or in other words, the copy must be a substantial and material one. Substantial and material copying does not have an exhaustive definition to its credit; it is more a matter of facts and circumstances.
New Form of Online Film Reviews
Digital platform cannot control who writes the ‘film reviews’ or ‘reviews about the film’. There is a hairline difference between both the expressions. While film review stands for the conventional assessment of a film concerning the plot, performance and other things, the latter expression represents this new form of review about the ideology of the film. For example, theladiesfinger.com has this written article on the kind of misogyny the movie Badrinath ki Dulhania represents. While this piece, as titled, intends to question Alia Bhatt’s role in this film, it gives away play-by-play action of the movie on the very next day of its release i.e. 11th March, 2017. Similarly, an article on youthkiawaaz.com publicised the twist in the action thriller Kaabil 5 days after its release.
Another feather in the cap is live-reviewing a film through a blog post or via twitter. Live-reviewing, traditionally used as a broadcast platform for real-time events like press conferences, sports events or even Oscars for that matter, has become a mode of publicising the film action-by-action on the same day of its release. For instance, here is a live-review of the film Kaabil and of Badrinath Ki Dulhania available at firstpost.com. These reviews not only post comments about the film but also include verbatim dialogues and scene-by-scene enaction.
The motive behind the aforementioned example is to show you that I did not come to know about the film’s plotline and essential twists from a single web source but multiple sources, all of which pertained to different parts of the film independently. Thus, if we take each review in isolation, it would not be piracy due to absence of ‘substantial taking’.
Therefore, if we club all the sources together or take them in isolation, then we have an unprecedented form of online piracy, to which our traditional copyright laws will not apply, as the plot, the twists and essentials of the film are out in the open and ultimately a reader of such reviews, like me, does not watch the film. The guidelines set out in R.G. Anand’s case will be inoperative in such a case because firstly, guidelines pertaining to literal imitation or substantial copying as laid down in the case will not cover such reviews; be in isolation or collective. Secondly, this case held plot and themes as not copyrightable but such reviews, as exemplified above, do not just give away the plot rather they provide action-by-action enaction of scenes in the film which are copyrightable per se.
Suggestions
Online film reviews will not be per se actionable under the current design of our copyright law including judicial pronouncements. This is because firstly, such reviews need acceptance under the category of infringement in copyright law and secondly, producers will have a hard time figuring out which film reviews have violated their copyright as it would be realistically more impossible than finding websites hosting illegal streaming or downloading of a film. Therefore, until the time we possess the technology which will carve out only the infringers and not pose harm to the innocent reviewers, we can, by word of law or through judicial pronouncement, restrict reviews about a film on online portal for the time the film remains active on box office. This would protect the producers from their inevitable monetary loss due to no-show-of-public and would also not violate the right to freedom of expression of such authors; this would merely postpone their right to one week or so, as the case maybe.
Reporting of such film reviews is quite annoying not only to the film industry but also to the viewers because it kills your drive to watch a film. Although, India’s law is currently incapable of making such a case actionable, but the judiciary’s recent drive to uphold IP rights provides some sunshine to this gloom. Judicial inquiry into this would unfold an interesting legal drama.
[1] Wiley Eastern Ltd. And Ors. vs Indian Institute Of Management, 61 (1996) DLT 281.
[2] 1979 SCR (1) 218
Image from here
First of all, the term “illegal live streaming of films” in your 2nd paragraph is an inappropriate term, even scene by scene review via twitter does not fall under “live streaming”. Secondly in your sixth paragraph under the heading “New Form of Online Film Reviews” you have mentioned play by play action of the movie is revealed the very next day of the release of the film. Let me tell you once a film is released it comes under public domain and talking about the film or reviewing the film cannot come under infringement of any kind and knowing the story beforehand is certainly not a deterrent for people to not watch a movie as movie watching experience has many facets to it and story is just a part of it, execution and performance is something which cannot be described in words but only to be seen and experienced. The basic fundamentals of your article are flawed as copyright act protects infringement of copyright in the cinematographic film and its underlying works. It could be a physical unlicensed copy of the film being sold in the market or shown without a license on any other mediums including the internet, this is not only covered under copyright act but also under Information Technology Act and IPC. Copying the underlying works in a cinematographic film like the story, music, lyrics etc are other major infringements under the copyright act. Please get your facts in order before writing an article on copyrights!
Thank You, Mr. Vivek Anand. Following is my response to your comment.
a) The expression ‘illegal live streaming’ is not an inappropriate term. Illegal live streaming undertakes the activity wherein the film or television show or else is streamed live via platforms like Facebook, Snapchat or other forums. However, for the sake of clarity, I should have used ‘illegal live streaming or streaming’ instead. Please have a look at this link. http://fusion.net/is-it-really-this-easy-to-prevent-piracy-via-facebook-l-1793857359
b) Scene-by-scene review on twitter or other platforms does not fall under live streaming. I agree with you on this point. I have nowhere mentioned the contrary in the article. This activity falls under ‘live-reviewing’.
Coming to the premise of your argument, if I am not wrong, it can be divided into the following:
a) ‘Knowing a story or other exclusive details of the film before hand is not a deterrent.’
Kindly consider that by stating the above, you have generalized it for the entire audience. This, in my opinion, would not be correct. Not all of us watch a film for the experience or to just to appreciate the art. Major chunk of the audience cannot be presumed, at the outset, to be theatrically literate. Many of us watch a film just to relax on the weekend or to be entertained with something new. This is why movies like Dear Zindagi are cleverly released only in handful theaters across the country while movies like Sultan dominate approximately all small and major theaters. This is done keeping in mind the kind of audience for the film.
Please have a look at this link to check the veracity of the facts stated above. http://www.dnaindia.com/entertainment/report-standpoint-why-did-shah-rukh-khan-choose-only-800-screens-for-dear-zindagi-2276750
b) ‘Public Domain.’
Please tell me if there is an authority for your statement that once a movie is released it falls into the public domain. Falling into public domain means that rights over the IP are not in existence anymore, the author of the work is not deriving any monetary benefits and the work is free for public use without any restrictions from the author.
An extension of your premise would justify piracy of movies altogether since the movie would be in public domain; free for any kind of distribution mechanism.
c) ‘Flawed Concepts.’
In the article, there hasn’t been any refutation of the fact that copyright exists in cinematographic films and its underlying works and both are adequately protected under our laws.
Parting Note: I hope some of my facts have been set in order to prove my eligibility as an author for a post on Copyright Laws?
Thank You, Mr. Vivek Anand. Following is my response to your comment.
a) The expression ‘illegal live streaming’ is not an inappropriate term. Illegal live streaming undertakes the activity wherein the film or television show or else is streamed live via platforms like Facebook, Snapchat or other forums. However, for the sake of clarity, I should have used ‘illegal live streaming or streaming’ instead. Please have a look at this link. http://fusion.net/is-it-really-this-easy-to-prevent-piracy-via-facebook-l-1793857359
b) Scene-by-scene review on twitter or other platforms does not fall under live streaming. I agree with you on this point. I have nowhere mentioned the contrary in the article. This activity falls under ‘live-reviewing’.
Coming to the premise of your argument, if I am not wrong, it can be divided into the following:
a) ‘Knowing a story or other exclusive details of the film before hand is not a deterrent.’
Kindly consider that by stating the above, you have generalized it for the entire audience. This, in my opinion, would not be correct. Not all of us watch a film for the experience or to just to appreciate the art. Major chunk of the audience cannot be presumed, at the outset, to be theatrically literate. Many of us watch a film just to relax on the weekend or to be entertained with something new. This is why movies like Dear Zindagi are cleverly released only in handful theaters across the country while movies like Sultan dominate approximately all small and major theaters. This is done keeping in mind the kind of audience for the film.
Please have a look at this link to check the veracity of the facts stated above. http://www.dnaindia.com/entertainment/report-standpoint-why-did-shah-rukh-khan-choose-only-800-screens-for-dear-zindagi-2276750
b) ‘Public Domain.’
Please tell me if there is an authority for your statement that once a movie is released it falls into the public domain. Falling into public domain means that rights over the IP are not in existence anymore, the author of the work is not deriving any monetary benefits and the work is free for public use without any restrictions from the author.
An extension of your premise would justify piracy of movies altogether since the movie would be in public domain; free for any kind of distribution mechanism.
c) ‘Flawed Concepts.’
In the article, there hasn’t been any refutation of the fact that copyright exists in cinematographic films and its underlying works and both are adequately protected under our laws.
Parting Note: I hope some of my facts have been set in order to prove my eligibility as an author for a post on Copyright Laws?
Dear Shubhi,
First of all, thanks for a prompt response. My comment was not to judge you of your eligibility as an author but to apprise you of the fact that reviewing/reporting a film via social media and other platforms is not related to piracy at all. “illegal live streaming” is not an inappropriate term per se but you have used it in an unrelated manner in context with your article, your article mentions about review of films so it has nothing to do with streaming. By Public Domain i did not mean Public Domain as defined under the Indian Copyright Act where a cinematographic film comes under public domain 60 years after it is released, I have used in as a general term that when a film is released its story is accessible by people. I am questioning the basic fundamental of your article which says that a film review these days which reveals the story of a film amounts to piracy. As a general film article it would have been a good read but from a legal point of view it is utterly rubbish and stands no ground of piracy by any means and definitions available under IT Act, IPC or Copyright Act, First of all review comes under exemption from Infringement under Copyright Act. It also comes under fair dealing. Even if you use some clips of the film (which can be regarded as a cinematographic film itself) for review it is exempted from infringement though you cannot use major portions or the whole film as that would amount to infringement.
The copyright is in the literary work means the copyright is in the entire script and not bifurcated under story, screenplay, dialogues etc. as the copyright Act does not cover the same, so in a review if the story is revealed in any manner it does not amount to infringement and not at all PIRACY (very wrong word usedin your article!) Infringement shall only happen when the entire script is communicated to the public or as per court’s discretion if it feels major portion of the script is used for purposes other than review. so the basic title of your article “Online Film Reviews: A New Form of Online Piracy” is flawed from the very beginning.
Now if you want to please accept your mistake and take it in your stride and come up with a better article related to Copyrights it shall be in best interest as an author of this forum or you can keep justifying and taking defense for your flawed article. The choice is yours!
Sir,
I sincerely like the way you express refutation of ideas by addressing them as utterly rubbish. It reminds me of the historical debate when certain believers refuted the fact that it is the earth that revolves around the sun because it challenged the traditional boundaries of the then existing knowledge. I would have accepted my “mistake” if it had been one, but as a law student I believe that proposing new ideas is not a mistake per se. Ideas are always debatable and are never wrong. [with all the humor intact]
Regarding the “choice”, I think we both have one i.e. to accept that we both have different opinions on this topic and we both stand by it.
I still stand by my opinion that such new form of reviews will soon get challenged as an act of [new kind of] infringement. I have mentioned it in my article that “traditional rules of copyright will not apply..” and this, I believe, answers you majorly. Although there is no current literature to back my idea but there is a concern in the film industry regarding such reviews and it has been voiced already on a public platform.
Further, whenever an IP is ‘accessible’ to the public it does not give the latter the right to rob the IP holder of her/his rights.
Lastly, whether this idea is utterly rubbish or flawed entirely is debatable and let us see what the future unfolds for this issue.
Well, Just to point out the premise that writings in a review reveals the plot, ultimately bringing down the audience(like you) of the work should result in extra protection of “film not being a subject of any literary work” is incorrect understanding of law.
Copyright law protects expression and not the idea, so if there is a Picasso’s painting which has a copyright as an artistic work, cannot preclude anyone from writing about that work, because you are using that painting as a subject to realize your expression which itself will be copyright protected.
Please refer to abstraction-filteration-comparison test to test your idea of infringement.
Law has to be consistent, imagine if the law as suggested by you is applied to the scenario above.