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CRITICAL ANALYSIS OF JOINT AUTHORSHIP OF A CINEMATOGRAPH FILM UNDER INDIAN COPYRIGHT LAW:

Author: Apoorv Pragya

 

Joint authorship has been defined under Section 2 (z) of the Copyright Act, 1957. It states:

“work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors;”

As is clear from this definition, joint authorship, requires there to be a collaboration between two or more people wherein the contribution made by all of them cannot be distinguished. Joint authorship also find mention under various other sections of the copyright act such as Sections 13, 17 to name a few.

Authors and works of authorship forms the fundamental core of copyright law. The very objective of copyright law for many scholars is to regulate and protect the rights which accrue to the authors vis a vis their creations. Therefore, the situation and the connected questions with this concept of authorship has far reaching consequences in the copyright law jurisprudence. In this article, I will explore the various dilemmas scholars face when it comes to the interpretation of joint authorship. I will briefly touch upon those challenges, before focusing my attention of the specific issue of joint authorship in cinematograph film; exploring the tangle of equations present therein.

 

GENERAL INTERPREATION OF JOINT AUTHORSHIP UNDER INDIAN COPYRIGHT LAW:

The presentation of the definition of “joint authorship” mentioned hereinabove shows that there are certain lacunae which exists in the understanding of the definition. For instance, the definition does not specify the nature or extent of collaboration or the level of contribution which is needed to satisfy the legal threshold. This is why it is important to specify the position which is followed in India with respect to the definition as well as the overall contours of the joint authorship, because the same would inform the extent and specifications of the rights which could be made available to the authors.

One of the most fundamental judgments when it comes to joint authorship under Indian copyright law is the case of Najma Heptullah v Orient Longman Ltd[1]. In this case, the plaintiff claiming to be the legal heir of late Maulana Abul Kalam Azad filed a suit for rendition of accounts and injunction against the defendants, one of which was a publisher and with whom Professor Humayun Kabir (an admirer and close associate of Maulana Abul Kalam Azad) entered into an agreement and whose daughter claimed that Prof Kabir was the real author of the book India Wins Freedom. The primary question which the Court looked at herein was, “who was the author of the book India Wins Freedom?”

While discussing the abovementioned issue, the Court also looked into the concept of joint authorship. In relation to which, they said this,

“…if two persons collaborate with each other and, with a common design, produce a literary work then they have to be regarded as joint authors….if there is intellectual contribution by two or more persons pursuant to a reconverted joint design, to the composition of a literary work then those persons have to be regarded as joint authors[2].”

Therefore, the basic ingredients which need to be present for a work to be the work of joint authorship are:

  1. Intellectual contribution by two or more persons:
  2. Pursuant to a reconverted joint design;
  3. Collaboration on the work;
  4. With common design

Additionally, the interpretation of joint authorship in general common law has seen two schools of thought- the one being followed under UK law called “joint tenancy” and the one being followed in the US called “tenancy-in-common”. As per the UK law, all the authors of the copyrighted work hold equal and undivided interest in the work, while in the United States, the authors of the copyrighted work hold proportional interest in the work depending upon the contribution they have made to the work[3]. The question to be asked here is then, which stance is taken up in India?

The interpretation provided by the Courts in certain cases point to the fact that the Indian law follows the English school of thought. For instance, in the case of Nav Sahitya Prakash v Anand Kumar[4], the Allahabad High court cited with approval the following paragraph from Halsbury Laws of England.

“One joint author cannot reproduce the work himself, or grant licence to others to reproduce it, without the consent of other author or authors, but may by himself take proceedings for infringement against third party[5].”

This position was also followed by the Bombay High Court in Angnath Arts Pvt. Ltd. vs Century Communication[6] which held that a joint author “cannot exploit the copyright singly or individually. The exploitation of the copyright must be made by the petitioner and respondents as they are the joint owner[7].”

Therefore, in light of these decisions, it would be safe to say that the Indian law provides joint tenancy to the joint authors. The situation of join authors becomes even more interesting in the field of cinematograph film. The next two sections will focus on the challenges present in that specific field.

 

INTERPRETATION OF JOINT AUTHORSHIP OF CINEMATOGRAPH FILM:

As far as the author of a cinematograph film is concerned, the same has been defined under S. 2 (d) (v). S. 2 (d) which defines the author (author means), under clause (v) states,

“…in relation to a cinematograph film or sound recording, the producer[8];”

The word producer is further defined under S. 2 (uu),

“producer”, in relation to a cinematograph film or sound recording, means a person who lakes the initiative and responsibility for making the work[9];

One of the major cases discussing the question- who is the author of a cinematograph film is the case called, Ramesh Sippy v Shaan Ranjeet Uttamsingh[10]. In this case, the plaintiff, Ramesh Sippy had filed the suit for temporary injunction against the defendants, for copyright infringement of the film Sholay and several other films. One of the defendants in this case was the partnership firm Sippy Films Ltd, of which Ramesh Sippy had been a previous partner, while the film Sholay was being made. Taking into account the various arguments put forth by both sides, the Court assessed the issue- who is the author of the cinematograph film. While analyzing this question the Court took into account the fact that the definition of the author under the Act with respect to a cinematograph film is the producer. In this relation, they also looked at S. 17 (b) of the 1975 Act, prior to the 1994 amendment. The Court then went on to hold thus, with respect to the owner of the film,

“An owner is therefore a person who has spent towards the production of the film and who has not merely arranged for the funds but in fact has taken the risk of commercial failure, i.e. one who will lose money if the film flops and who will reap the fruit of commercial success if the film is a hit[11].”

Therefore, the Court took into account the financial contribution of the producer as being the decisive factor in deigning him the author of the film. Relying on the definition of the producer, one may find that the two words, which hold importance are initiative and responsibility. Keeping these two words, in mind the Court interpreted such initiative to mean financial initiative which would bring the various moving parts of a film making entourage under a cohesive and working unit[12].

Another reason why this case holds importance in the present context is because of its discussion with respect to joint authorship. While analyzing the issue- whether a partnership firm can be the author and owner of a cinematograph film, the Court discussed the definition of joint authorship as provided under the Act and it opined that a partnership firm is a “compendium of individuals” and when they hold ownership of copyright of the film, they do so as joint owners, since the financial contribution of one partner is not distinct from the financial contribution of the other partners[13].

The analysis undertaken in this section shows that with respect to the cinematograph films, it is the producer who is considered to be the copyright owner of the film as per the Act, and in case such producers were part of a partnership, they would all be considered to jointly own the copyrights in the film, making them joint authors.

The basis of this reasoning presented by the Courts has been the presence of the two words- initiative and responsibility in the definition of the word producer. The courts have taken these words to mean financial initiative and responsibility. The focus of the courts in this regard has stayed fixated on the financial and monetary contribution made by the producer to the making of the film. However, this interpretation is based on the assumption that the financial backing or contribution towards the making of a film is superior to the intellectual and artistic contributions made by the other members of a film-making community, such as the directors, composers, lyricists, set designers, etc. An alternative argument to this can be that the intellectual contribution of the directors, script writers, music composers is the reason for the commercial success of a movie and that without such intellectual contributions, a successful film cannot be made merely on the basis of money.

Certain legislative strides were sought to be taken in this direction by the Parliament when it introduced, the Copyright Amendment Bill, 2010. As per this bill, the principal director was sought to be the author of a cinematograph film alongside the producer. However, after the bill was referred to the Standing Committee on Human Resources Development, the same stood revised and, this change was not included in the final 2012 amendment which was passed by both the houses[14]. This amendment could have recognized and appreciated the contributions of the director who plays a more active role in bringing the film to its culmination than the producer who has more of a role of the financial supporter than a creative contributor. However, such a change was not made therein, in concern of the backlash from the producers who are considered the kingpin of the film industry[15].

If we were to consider the objective of the Copyright act which is to encourage innovation, production of new intellectual creations and their protection, it is important to keep in mind the role played by the other players in the making of a cinematograph film. Their intellectual collaborations and contributions to the process of film-making should be recognized and appreciated in order to encourage prospective directors, composers and other creators to venture into this field. This point is further substantiated by the definition given in the Najma Heptullah case wherein an important ingredient was considered to be the “intellectual contribution” of two or more persons towards a common design. Furthermore, the inclusion of the cinematograph film under the ambit of copyright law would lead to the logical assumption that the same is a creative work. Following this logical train of thought, it is but natural that the primary intellectual contributors be given the requisite recognition and appreciation that they deserve.

 

CONCLUSION:

The analysis undertaken in the preceding sections show the way in which authorship and joint authorship has been interpreted in general as well as with respect to the cinematograph film. It has been shown through this analysis that the concept of joint authorship has not developed in a uniform manner under the Copyright law in India. Especially when it comes to the field of cinema, much work still remains to be done. One of the immediate issues which need to be considered in this regard is the treatment of the principal director. It would be advisable herein to grant the principal director the position of co-author alongside the producer, so that their contribution to the overall making of the film is recognized. This would play into the overall objective of the copyright law and would pave the way for greater creative and intellectual initiatives being undertaken by the people engaged in such work.

[1] AIR 1989 Delhi 63

[2] id.

[3] Debadatta Bose, To Assign or Not to Assign: A Study of Copyright Assignment and associated problems with joint authorship. 2016 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3423894

[4] AIR 1981 All 200

[5] id.

[6] AIR 2009 Bom 26

[7] id

[8] Copyright Act, 1957, s. 2 (d) (v)

[9] Copyright Act, 1957, s. 2 (uu)

[10] 2013 (4) Bom CR 4

[11] id.

[12] id.

[13] id.

[14] S. Sivakumar & Lisa P. Lukosi, Copyright Amendment Act 2012: A Revisit, 55 JILI 149, 2013

[15] id

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