“Overlap”—such an interesting word, isn’t it? It’s everywhere. Our ideas overlap, our works overlap, our words overlap, and even our feelings and emotions. And yes, so do our laws and their intricate concepts.
But why am I talking about overlaps? While reading the news about the Screenwriters Rights Association of India (SRAI) officially registering as a Copyright Society (Reg. No. CS/06/2024), the word clung to my mind. Especially when a close friend (who prefers to remain anonymous) pointed out the curious—and rather inconvenient—overlap between dramatic and literary works and its implications on their royalties.
The registration empowers SRAI “to commence and carry on the copyright business in dramatic works and literary works associated with dramatic productions.” Given the persistent issues of underpayment and lack of credit screenwriters have faced, this marks a historic moment worthy of celebration. Yet, it raises an intriguing question upon which the entire registration hinges: Is the script a “dramatic” or a “literary work”? The definition dilemma of dramatic works was pointed out by Shreya Aren around 15 years ago!
In this post, I examine the nature of a “script,” considering the current judicial jurisprudence, and underscore its repercussions on the authority of SRAI to collect royalties.
What’s a Script?
As stated above, SRAI’s registration concerns two works: 1.) dramatic works and 2.) literary works associated with dramatic production.
While SRAI’s registration does not define whether scripts and screenplays are dramatic or literary works, there could be an arguable case for either side. For one, unlike laws of other countries like Australia and New Zealand, which clearly define a script as a dramatic work, the Copyright Act 1957 does not mention “screenplay” or “script” as such. Instead, it leaves it to the author to decide (at the stage of copyright registration and litigation) where it falls.
For instance, take the script of the movie Aaranya Kaandam, which is defined as a literary and dramatic work (Diary No.: 14988/2018-CO/L). Similarly, in Salim Khan vs Sumeet Prakash Mehra, the plaintiffs’ script, dialogues, screenplay, etc., were categorically described as literary works. Last year, the Satyajit Ray case concerning the screenplay and script ‘Nayak’ was described as a literary work. Similarly, I came across an unpublished application before the copyright office for “Yaadon Ki Zanjeerein,” classified as a “Literary/Dramatic” work (Diary No.: 2284/2022-CO/L).
This ambiguity reflects the flexibility (or perhaps confusion) within the law concerning two types of works. Let’s look at the issue more closely.
Section 2(h) defines “dramatic work” as “any piece for recitation, choreographic work, or entertainment in dumb show, the scenic arrangement or acting, the form of which is fixed in writing or otherwise, but does not include a cinematograph film.”
Two key components flow from this definition: 1.) Dramatic work includes recitations, choreographic works, dumb shows, scenic arrangements, or acting. 2.) They must be fixed in writing or another form. Plus, it explicitly excludes cinematographic films from its scope.
At first blush, a script or screenplay might appear as a piece of recitation fixed in writing and, therefore, a dramatic work. This is a common understanding across many jurisdictions and has been argued by scholars (see this interesting 2021 piece by Dr. Rukma George discussing the issue in detail.)
The problem, however, is not simple, considering that the script or screenplay is prima facie literary work. Its very essence lies in words, sentences, and storytelling. But its purpose is performance, making it fit for dramatic work. This distinction between “text for performance” and “text for reading” seems to be the underlying basis for the difference between literary and dramatic work.
For instance, the Copyright Office’s Practice and Procedure Manual, 2018 (page 2), which cited the Supreme Court’s 2008 judgment in Academy of General Education, Manipal vs. B. Malini Mallya, reached this conclusion. The case, in turn, draws on The New Encyclopaedia Britannica and Halsbury’s Laws of England, noting that a dramatic work (like a play) is a text designed for performance, while a literary work is meant for reading as printed words.
The issue received detailed discussion before the Delhi High Court in 2014, in the Institute for Inner Studies vs. Charlotte Anderson, where, citing USA and UK authorities, the Court outlined two key criteria for a work to qualify as dramatic: 1.) Performability: The work must be capable of being physically performed or accompanied by action. 2.) Fixation: The work must have a fixed form, such as in writing, ensuring “certainty of incidents as a predetermined plan.” Interestingly, while not explicitly calling it an essential element of dramatic work, the Court highlighted another critical aspect: 3.) the “purpose of work,” which is to “be deduced from the form and nature of the work.” (Read para 108-117) However, the Court also clarified that where the certainty of the performance of the work is doubtful, such a work cannot be called dramatic work. Examples include sports games, news presentations, aerobics, daily routines, Yoga, and Pranic Healing techniques.
A script or screenplay fulfills all of these requirements and thus falls under dramatic works. But hang on for a moment.
This dichotomy (“text for performance” vs. “text for reading”), I claim, is flawed, if not false. And it can be problematized when pushed to its logical extremes. The differentiation between “text for performance” and “text for reading” creates an artificial—shoddy—boundary between text types. Sample a poem—generally classified as a literary work—can also be performed. Similarly, books– another literary work—are often adapted for performance. In fact, Praharsh shared that “Fantastic Beasts and Where to Find Them: The Original Screenplay” is being sold as a book, further making me think that if all texts (literary) hold the performance potential, what’s the distinction? Perhaps the meaning of performance needs teasing out. By adding a purpose requirement, though implicitly, the Charlotte Anderson case solves this problem for a moment. But should the author’s intentionality behind creating a work even be a requirement to categorize a work? To me, it is an alien requirement shoehorned into dramatic works– something that Cohen might call transcendental nonsense. It only makes sense because we’re so intent on making it so.
Why are the Categorizations worth worrying over?
So, is there any “real” difference between the both? Maybe, yes, maybe not. Logically, it can be either. I would put script under literary works. Because of the applicability of Section 18 proviso (3) read with Section 19(9), which creates an unwaivable royalty provision for assignments when a literary and musical work is incorporated into cinematography. The provision, in simple words, states that the author of a literary or musical work included in a film cannot waive or assign their right to equal royalty shares with the film’s copyright holder (i.e., a producer). Moreover, it applies to the use of the work beyond showing the movie in a cinema hall. Meaning, producers are legally obligated to share royalties equally with the authors of the underlying literary or musical work whenever the work is exploited outside of traditional cinema screenings.
The upshot? If I were a screenwriter, why would I categorize the script as a dramatic work? Instead, I would classify it as a literary work. Converting it into a dramatic work remains an option under section 14(1) anyway, but by claiming it as a literary work upfront, I get the nonwaivable royalty protections under Sections 18 and 19(9).
So, while SRAI does the copyright business, it must consider what a script is as per the law, which would decide the royalties received on it.
Alright, that’s from my end.
À bientôt.
What seems to be lost in this discussion, is that the definition of “dramatic work” in section 2(h) is merely an inclusive definition: it does NOT exclude works that are not “any piece for recitation, choreographic work or entertainment in dumb shoe, the scenic arrangement or acting form of which is fixed in writing or otherwise…”. It begins,: “dramatic work includes any…”
The reason for this specific inclusion of certain works is presumably because the included items must necessarily be fixed. This is classificatory. To avoid ambiguity, the definition carves out an exception to the general principle in our Act that works need not be fixed to qualify for copyright protection. (BTW another common misconception is that there is a blanket need for fixation under our law: on this point our law is s distinct from the laws of most other common law jurisdictions, which specifically require fixation. Our law is consistent with the latitude granted under Article 2(2) of the Berne Convention.)
It is a settled principle of interpretation that if the legislature uses two different terms it means two different things. Section 13 specifically lists dramatic works separately, in addition to literary works, amongst the works in which copyright subsists. That means, clearly, that dramatic works ( which are only inclusively defined, as mentioned) are a different general kind of work from literary works.
This also accords with common sense and common usage: a play is obviously different from a novel. It is created to be performed and not merely to be read; we must not be misled by its textual nature when reduced to writing. A script or screenplay is, likewise, created for performance.
Now, to make things even clearer, consider a film in relation to the script. The film is a different class of work from various underlying works: it contains music, but is not a musical work; Ii contains choreography, but is not a choreographic work; It contains lyrics, but is not a literary work; it contains moving images, photographs and other artistic works, but is not an artist work. Likewise it is not a script or screenplay: the script/screenplay is a dramatic work that is simply another underlying work. This becomes even clearer when we consider that two different producers might make very different films from the same script/ screenplay,
Hi Sir,
Sorry for not responding sooner. Thank you for reading the post and sharing your thoughts—I truly appreciate your engagement. However, I never claimed there’s no distinction between dramatic and literary works or that they are one and the same. My focus, rather, is on the inherent indeterminacy in the law, esp. concerning scripts, which allows arguments to be made on both sides and leaves room for interpretative uncertainty. My point was to challenge the artificial divide between “text for performance” and “text for reading”—a distinction that collapses under the weight of its own logic. Perhaps because “performance” and “reading” are capacious concepts/words, broad enough to be argued in multiple, even opposing, directions.
But I agree with your point about the inclusive definition of dramatic works and the need to resist temptation to take a script’s literary nature as such. In fact, Academy Of General Edu. Manipal vs B. Malini Mallya (para 14) explicitly made this point—I should have mentioned that. In sum, given that our law does not categorically place scripts under dramatic works (unlike some other jurisdictions), and considering logic falls either side, the implications for scriptwriters could be significant.
This brings me to a broader question—barring the “purpose of work” requirement highlighted in the Charlotte Anderson case, (which is itself debatable), where do we place an article written in script format? A dramatic work or literary work?
Take, for instance, Prof. Basheer’s essay “Mind the Machine” or the “IP Reveries” series that Swaraj and I co-authored. For IP Reveries, we adopted a script-based format with the potential for performance (as a play or anime)—and even considered it while writing. Would such works fall under dramatic classification? One could argue either way with the “logic,” but should they? If classification hinges purely on style, it raises a catena of questions—where do we place works of duo-ethnography? More broadly, given that almost any text can be adapted for performance, does a script’s performability inherently set it apart? If so, how do we account for the varying degrees of adaptation required for different works? The upshot is that if law says tomorrow that script written for movie is a dramatic work, but the logic of the same remains up for grabs. I would love to your thoughts on that.
On a separate note, I didn’t quite understand your point about fixation—could you clarify or direct me to something I can check? Because I’ve often wondered how copyright would function without a fixation requirement, and if I’m missing something, I’d love to be corrected.
Thanks again for the engagement.
Lokesh
Thanks for your comment. I shall come to your question about indeterminate works. There are certainly cases where copyright terminology does not fit some particular subject matter. But I think we should first look at more typical instances, which may require me to state the obvious. We should first consider the normal run of content created for the entertainment market.
I agree that almost any text can be adapted for performance; but this means that there has to be an act of adaptation. If we have a textual work like a novel and adapt it into a play, we have two different works, one a literary work and one a dramatic work.
A novel is textual and it is created to be read. The nature of a play may be textual insofar as it is capable of being read as text, but it has a different format, comprising dialogue which makes it clear who is to say what, and stage directions (enter, exit, and other more complex ones) and is likely to be performed on sets which the play requires (a drawing room, a bedroom etc). Reading it is different from and less satisfying than seeing it performed.
It is not clear to me what you mean by “varying degrees” of adaptation. The plots of plays may vary in different degrees from the original plot of the novel; some changes are necessary because of the different medium, e.g. a novel with a very complex plot might need to be simplified for presentation in just a couple of hours on the stage; again, visual presentation is a substitute for verbal description. Different playwrights might do this adaptation differently. That is what adaptation is about, but discussing “degrees” of adaptation takes us nowhere: the play is either an adaptation or an original play; the extent of similarities may be relevant to determine whether it is an adaptation, but has no bearing on the principle.
The same analogy as to adaptation applies more or less to scripts. The screenplay or script (two terms for the same thing, what screenwriters write) is in a format both containing dialogue and guiding the director as to what to do; there are books on screenwriting from which you can understand the distinct nature of this craft. As in the case of a play, it is created to be performed (and is not as satisfactory to read as it is to watch.) As in the case of a play, a screenplay may possibly be an adaptation of a novel; it might also be an adaptation of a play. Given the greater flexibility of the cinema as a medium, the nature of adaptation is likely to be very different but, again, it doesn’t seem useful to discuss “degrees” of adaptation. The question would be: is it an adaptation or not?
Again, different stage performances or film productions, which are quite different, interpreting the same dramatic work (play or screenplay) very differently, are possible. This is not the case with a narrative literary work like a novel.
Now we come to your problem, that the nature of some works may be debatable. The notion of a “work” is undoubtedly a legal and cultural construct created for the purposes of copyright law; the fit between some kinds of subject matter and copyright terminology can be Procustean. Is a performance of Indian classical music, improvised with great originality on a theme or raga which is the public domain, a work or just a performance? It lacks the characteristic of a work of being repeatable, yet it has the requisite originality. The introduction of performers’ rights in 1994 gave the musician some protection, but the only copyright is in the sound recording of which the musician is not the author/owner. The same problem applies to jazz in some cases. It can apply to the question whether something is an artistic work. And more instances would be possible. You have mentioned an instance of what you wrote with Shamnad; given the possible uncertainty, I suppose you could elect to protect it as either a literary or a dramatic work, though not as both.
We have to live with such odd problems, and argue them in our clients’ interests where necessary. But such problems are not the norm, and in my view the term “dramatic work” loses all meaning if we call a screenplay a literary work.
As to fixation, please see Article 2(2) of the Berne Convention. Whether or not to require fixation is left to municipal law. Our Act does not require fixation, unlike the copyright statutes of most other common law (but not civil law) jurisdictions which specifically require it, i.e. fixation is not a precondition for the subsistence of copyright under our Act. We must not confuse fixation as a precondition for the subsistence of copyright with the practical, forensic problem of proving ownership or infringement of an unfixed work. (There may indeed be instances, if few, where it may be possible to prove infringement in a purely oral literary work like a poem or a lyric, e.g. if created extempore before an audience.) What is material to the earlier dfiis that in the case of dramatic works section 2(h) of our Act carves out an exception requiring fixation in the case of just a few kinds of dramatic work.
I hope that is helpful. Do get back to me if you don’t think it is.
Hi Sir,
Thank you for your detailed response. Tis helpful. I agree with you especially on your point that “We have to live with such odd problems, and argue them in our clients’ interests where necessary.” Recognizing this makes it clear that outcomes/interpretations aren’t shaped by some inherent, divine logic, but rather by a long-standing socio-legal practice that guides how we understand and choose to apply concepts—depending on our position in the field, as a lawyer, academics, or policymakers. Thanks again for engaging.
Just a quick clarification: I didn’t co-author a piece with Prof. Basheer. I wrote it with Swaraj 🙂
I need to make a correction. In the second paragraph the word “classificatory” should be read as “clarificatory”.
Inconvenience regretted.