Guest Post: Is a film more than celluloid?

This post was edited once after it was initially published and it differs from the version emailed to the SpicyIP mailing list.

In June, we had an interesting series of posts on the ‘physical copy’ doctrine regarding cinematograph films. Sreyoshi got the ball rolling with her post on the copyright infringement case against the producers of Raabta and this was followed by a post by Advocate Swaroop M. of the Madras High Court. We now have a third, very interesting perspective from Mr. Jagdish Sagar. By way of introduction, Mr. Sagar is currently practicing law in Delhi, largely though not entirely in copyright and entertainment, after retiring from the IAS. He was India’s sole copyright negotiator in the WTO/TRIPS negotiations.

Is a film more than celluloid?

M.V. Swaroop’s posts on the “physical copy” doctrine repeats what I see as a widespread misconception about the nature o­f a cinematograph film and the rights of its copyright owner; he interprets the copyright owner’s rights as applicable only to exact copies.  According to this doctrine, everything but the celluloid (using this old term as shorthand for the master recording, in digital or any other format) is just underlying works: a remake might infringe the underlying works but it cannot infringe rights in the film.

Reflect a little: is a cinematograph film really just a visual recording of the underlying works or is it something more than the sum of its parts?  The answer seems obvious to me: there is no way the underlying works would come together to make a film without a very complex overarching act of creative authorship.  It is not as if the producer simply made a compilation of underlying works and somehow stuck them to a tape.

Start with the screenplay, a dramatic work. Now try to imagine how different authors (in our law the producer) might treat and build upon the same screenplay and what they might create out of it: certainly not identical master copies. Someone has to decide where to shoot, do the casting (which will create performers’ rights), commission the composer and lyricist (who will create musical and literary works to the requirement of the producer), the singers and instrumentalists (creating performers’ rights, but not “underlying works”), design the sets (artistic works) and so on; to conceptualise and then realise each scene—think of all the creative inputs that go into that; to make literally hundreds of aesthetic and administrative choices and decisions (some involving underlying works and some not) culminating in the all-important job of editing: the same raw film can be edited differently to produce vastly different outcomes.

The author of the film thus contributes the cinematography without which there is no cinematograph film. Justice Krishna Iyer In Indian Performing Right Society v Eastern India Motion Picture Association (a controversial judgement, though not on this question, and never overruled) does, in his usual florid style, correctly make this point:

“21. A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may use these lovely imageries to drive home my point, slurring over the rule against mixed metaphor.  Cinema is more than long strips of celluloid, more than miracles in photography, more than song, dance and dialogue and, indeed, more than dramatic story, exciting plot, gripping situations and marvellous acting. But it is that ensemble which is the finished product of orchestrated performance by each of the several participants, although the components may, sometimes, in themselves be elegant entities. Copyright in a cinema film exists in law, but S. 13 (4) of the Act preserves the separate survival, in its individuality, of a copyright enjoyed by any ‘work’ notwithstanding its confluence in the film. This persistence of the aesthetic ‘personality’ of the intellectual property cannot cut down the copyright of the film qua film… A harmonious construction of S. 14, which is the integral yoga of copyright in creative works takes us to the soul of the subject. The artist enjoys his copyrights in the musical work: the film producer is the master of his combination of artistic pieces and the two can happily co-exist and need not conflict…”

The contours of this original work are not difficult to identify: everything in the final film as screened, excluding content that is strictly identifiable (and thus reusable in another film) as underlying dramatic, literary, musical and artistic works, is the producer’s copyright as his own original work, for which “cinematography” is the appropriate term.

Section 2(f) of the Copyright Act defines a “cinematograph film” thus:

“…any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films;”

The legislative history is pertinent.   Before the 1994 amendments, the definition read as follows:

“‘cinematograph film’ includes the sound track, if any, and ‘cinematograph’ shall be construed as any work produced by any process analogous to cinematography.”

The 1994 amendments replaced the earlier definition as above.  Repeating:

“…any work of visual recording…”

The Notes to Clauses explain the change thus: “…to amend section (f) improving the definition of ‘cinematograph film’”. In other words, the change is clarificatory.

The legislature thus clarified that a cinematograph film is not any mere visual recording but a “work of visual recording”. We must assume that the legislature did not intend the word “work” to be redundant but, rather, intended to impose some requirement of originality for a visual recording to become a cinematograph film in which copyright subsists.  This requirement must no doubt be minimal, as generally in the case of copyright, but the cinematograph film has to be something more than, say, CCTV footage.  (Conscious editing of CCTV footage might arguably be enough, but there has to be some human intervention.)

The 2012 amendments have put the legislative intention beyond doubt by defining cinematograph films and visual recordings separately:

(f)        “’cinematograph film’ means any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films;”

(xxa)    “’visual recording’ means the recording in any medium by any method, including storing of it by any electronic means, of moving images or the representation thereof, from which they can be reproduced and communicated by any method;”

These amendments again, are clarificatory: there is nothing in them that cannot be construed from the 1994 definition, but they remove any possible scope for doubt.

The point becomes clearer if we look at cinematograph films in contradistinction to sound recordings.  Sound recordings, then called “records”, were more precisely and restrictively defined in the Act as originally enacted in 1957, clearly limiting the scope of the work to recorded sounds per se, and that has remained the case through subsequent amendments.   

1957: “’record’ means any disc, tape, perforated roll or other device on which sounds are embodied so as to be capable of being reproduced therefrom, other than a sound track associated with a cinematograph film;’

1994: “’sound recording’ means a recording of sounds from which the sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.”

The Notes to Clauses explained the 1994 amendment thus:

“The term ‘sound recording’ is proposed instead of the term ‘record’ occurring at present as the latter has become outdated through association with an obsolescent technology of sound reproduction.  The proposed definition of ‘sound recording’ will not be tied to any particular technology.”

The 1994 definition remains unchanged to date.

A sound recording is, thus, different from a cinematograph film.  Any mere recording of sounds, whether modified by human intervention or not, is a sound recording; but a cinematograph film, as we have seen, is more than a mere visual recording. (To be sure, a significant measure of professional expertise and creativity does also go into the preparation of a sound recording for the market, but it is of a different order.)

This distinction between the character of films and sound recordings relates back to the international treaty regime and the nature of our treaty obligations.

Sound recordings have never been treated as copyright works under the international treaty regime; they are treated as “neighbouring” or related rights.  (It is only in the common law jurisdictions that sound recordings are subsumed under the rubric of copyright. There are philosophical reasons for this that need not detain us here.) The Berne Convention does not apply to sound recordings (known to the international treaty regime as “phonograms”) which (with performers’ rights) were protected by the Rome Convention of 1961. Sound recordings are treated separately from copyright works in the TRIPS Agreement. The distinction is maintained in the subsequent WIPO Copyright Treaty (WCT) and the WIPO Phonograms and Performances Treaty (WPPT). India has acceded to the TRIPS Agreement and, subsequently, to the Rome Convention; accession to WCT and WPPT, if and when it happens, will not affect our law on this particular question. (However, accession to WPPT would raise the level of international protection available to Indian record labels.)

The international treaty regime treats any recording of sounds as a sound recording; it is able to do so because it does not accord sound recordings the status of a copyright work.

By contrast, the copyright treaty regime (Berne; TRIPS; WCT) sets the bar for a “cinematographic work” above mere visual recording.  None of the definitions of “cinematographic work” adopted in different Acts of the lead treaty, the Berne Convention, is compatible with the “physical copy” doctrine.

  • Films were first referred to in the 1908 Act of the Berne Convention; Article 14: “(2) Cinematic productions shall be protected as literary or artistic works, if, by the arrangement of the acting form or the combination of the incidents represented, the author has given the work a personal or original character. “(3) Without prejudice to the copyright in the individual work the reproduction by cinematography of a literary, scientific or artistic work shall be protected as an original work.”
  • Article 14 as included in the 1928 Rome Act of the Convention stated the difference between film and footage thus: “(2) Cinematographic productions shall be protected as literary or artistic works if the author has given the work an original character. If this character is absent, the cinematographic production shall enjoy protection as a photographic work.”
  • In the 1948 Brussels Act of the Convention Article 14(2) read as follows: “Without prejudice to the rights of the author of the work reproduced or adapted, a cinematographic work shall be protected as an original work.” The change is explained in the General Report of the conference proceedings, as follows: “This text has to be interpreted to mean that there is no reason to make any discrimination in the protection of films, and that the Convention abstained from proposing a criterion concerning the nature of cinematographic production. The very conception of a work entails an intellectual effort.”  (Emphasis added.)
  • The 1968 Stockholm Act reorganised this part of the Convention somewhat, inserting Article 14bis to deal exclusively with cinematographic works; the relevant portion reads: “Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematographic work shall be protected as an original work. The owner of copyright in a cinematographic work shall enjoy the same rights as the author of an original work…

The current (1971) Paris Act adopts the Stockholm definition.

The next question is how our Act protects cinematography. This is a little problematic since Section 14(d) and Section 14(e) provide rights respectively for cinematograph films and sound recordings in generally the same terms.  However, I would submit that it is proper to read our Act in a manner compliant with the treaties, hence we need to see whether Section 14(d) can be interpreted more expansively than Section 14(e). It is settled law that if two interpretations are possible, we are bound to adopt the interpretation that is not repugnant to our treaty obligations.

  • Section 14(d)(i) and Section 14(e)(i): Both these provisions use the word “copy”; admittedly it seems problematic to put “copy” on the same footing as “reproduction” since the legislature has used two different terms, but it does not define them differently, or indeed define them at all. I would submit that the term has to be understood with reference to the nature of the work: copying a film cannot be the same thing as copying a sound recording because the nature of the two works is not the same: one is a mere recording and other is something more than a recording. The Calcutta High Court decision in Shree Venkatesh Films Pvt. Ltd vs Vipul Amrutlal Shah & Ors. correctly appreciates the nature of a cinematograph film and applies the word “copy” to what a cinematograph film actually is.  
  • The other pertinent right under Sections 14(e) and (e) is the right of communication to the public. “Communication to the public” means the same thing in either case, as in all other cases; but the right is necessarily more expansive in the case of a cinematograph film than in the case of a sound recording simply because the rights subsisting in the former are more expansive than those of the latter.
  • Finally, the producer/author of a film, whether or not he remains the copyright owner, has a remedy under Section 57 of the Copyright Act against a remake that distorts his work in a manner affecting his honour or reputation.
  • In sum, there is no doubt that under our Copyright Act a cinematograph film is a work distinguishable from a mere visual recording, and that this was the clear intention of  the legislature.  Hence, the rights of the producer/author need to be read to give effect to this legislative intention—but I would be less than honest if I did not concede that there is scope for argument about how effectively, in this case, the statute actually protects the rights that it confers on the film producer. Either judicial interpretation or legislative amendment should address this; the Calcutta decision cited does begin to.


Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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