Copyright subsists in Cinematograph film as an original work: Delhi HC
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Copyright subsists in Cinematograph film as an original work: Delhi HC

Aditi Singh

The Delhi High Court has held that in a suit for Copyright infringement of a Cinematograph film, the infringing copy need not be an exact copy of the Cinematograph film, made by a process of duplication or a substantial/material copy.

It has opined that the blatant copying of fundamental /essential/distinctive features of a Cinematograph film on purpose would amount to copyright infringement.

Consequently, it held that the scope of protection of a film was at par with other original works and the test laid down in Supreme Court’s decision in RG Anand v. M/s Deluxe Films and Ors. (1978) would apply.

The judgment was passed by a Single Judge Bench of Justice Manmohan in a plea by MRF Tyres (plaintiff) against Metro tyres (defendant).

It was plaintiff’s grievance that the defendant who was involved in the same business of manufacturing and marketing of tyres had produced an advertisement “Bazooka Radial Tyres” which was similar to its advertisement titled “MRF NV Series present REVZ”. It was alleged that a bare perusal of the two advertisements showed that defendant’s advertisement was nothing but a substantial and material copy of the plaintiff’s advertisement as it showed a similar sequencing, form, treatment and expression.

The plaintiff argued that it was the author of the advertisement “MRF NV Series present REVZ” which constituted a Cinematograph work under Section 2(f) of the Copyright Act, 1957 and was thus entitled to protect it under Section 14 of the Act.

Relying on the Supreme Court’s decision in RG Anand v. M/s Deluxe Films and Ors. (1978), the plaintiff submitted that in a suit for Copyright infringement of a Cinematograph film, the test was of an overall impression of an average viewer and not a microscopic analysis which underscored differences/divergences.

It thus prayed for an interim relief of injunction against the defendant.

The defendant, on the other hand, argued that the present case was not a case of trademark infringement or passing off and therefore it could not be a “confusion based action” against the defendant.

Emphasising that Section 13(1) of the Act did not use the word “original” with respect to a Cinematograph film, the defendant argued that a Cinematograph film ought to be treated differently under Section 13(3) as all the underlying works which contributed to the making of a film were protected independently.

Thus, it was suggested that upon a conjoint reading of Sections 2(m)(ii), 14(d)(i) and 51 of the Act, it was apparent that to establish Copyright infringement in a Cinematograph film, it had to be shown that an actual copy of the copyrighted film had been made by a process of duplication.

Since in the present case, the defendant had made neither a physical copy of the plaintiff’s advertisement over a physical medium nor a copy of a photograph of any image, which formed a part of the impugned advertisement, there could be no case for Copyright infringement, it was pleaded.

It was also argued that RG Anand case could not be applied to Cinematographic films as it was concerned with a script (literary work) and the tests for comparison of a literary work and a film were completely different.

After hearing the parties, the Court iterated that Copyright subsisted in a ‘cinematograph film’ as a work independent of underlying works that come together to constitute it.

“.. a ‘cinematograph film’ is something more or greater than the sum of its parts. This Court is of the view that Section 13(1)(b) refers to the ‘superstructure’ built on the ‘foundation’ of the ‘original underlying work’.”, it was stated.

It further stated that a ‘cinematograph film’ might not infringe any of its underlying works, namely, a literary, dramatic, musical or artistic work, but might nevertheless lack originality because it infringes another cinematograph film.

Therefore, in terms of Section 13(3)(a), a film must not be a copy of any other work, including any other film, the Court said.

The Court further clarified that although the expression ‘original’ is missing in Section 13(1)(b) of the Act, the requirement of originality is brought in through Section 13(3)(a) which has to be read with the definitions of ‘cinematograph film’ and ‘author’ under Sections 2(f) and 2(d) of the Act.

It was thus opined that a ‘cinematograph film’ is an original work which qualified as an “intellectual creation”

“..this Court is of the view that a film is rarely used for purposes of reproducing underlying work alone. A film normally gives form to creation or underlying work. One has to imagine, interpret the subject, arrange the scenes as well as sets, direct the moves of the actors, take the shots and develop the negatives may-be in a particular hue to create a film. It is not the question of monopolizing an idea or a subject or the underlying work but of protecting the “intellectual creation” i.e. the form given to the idea or the development of the subject or underlying work. Consequently, a cinematograph film is normally an original work as it is an “intellectual creation”.

Further, while discussing the meaning of the term “copy”, the Court stated,

The Shorter Oxford English Dictionary defines ‘copy’ as ‘to imitate’. The Oxford English Reference Dictionary defines ‘reproduction’ as ‘a copy of work of art‘…No good reason has been indicated to read down the ordinary dictionary meaning of ‘copy’ or for it to mean something narrower  under the Act, 1957 in terms of the legislative objective/purpose or keeping with India’s international obligations, both of which are consistent with the ordinary, wider definition of ‘copy’.

Consequently, it held that the scope of protection of a film was at par with other original works and the test laid down in RG Anand’s case would apply.

It thus concluded,

“.. ‘to make a copy of the film’ does not mean just to make a physical copy of the film by a process of duplication, but it also refers to another film which substantially, fundamentally, essentially and materially resembles/reproduces the original film. Accordingly, the blatant copying of fundamental /essential/distinctive features of the plaintiff’s advertisement on purpose would amount to copyright infringement.”

In order to ascertain duplication, the court would “compare ‘the substance, the foundation, the kernel” of the two advertisements to consider whether one was ‘by and large a copy’ of the other and whether an average viewer would get an unmistakable impression that one work was a copy of the other.

It also added that ‘cinematograph film’ as interpreted by the Court is in consonance with the Berne Convention which protects the film not merely as a fixation, but also as an original work.

In the instant case, however, the Court after viewing the plaintiff’s and defendant’s advertisements and applying the test stipulated in RG Anand, prima facie opined that the two advertisements were neither substantially nor materially or essentially similar.

Moreover, since the suits were filed more than one year after the defendant’s advertisement had been first aired in September 2016, the Court remarked that the plaintiff was not entitled to any interim order.

The plaintiff was represented by Senior Advocate Akhil Sibal with Advocate Debarshi Bhuyan.

The defendant was represented by a team from Anand and Anand headed by Managing Partner Pravin Anand, along with Prachi Agarwal and Rohan Sharma.

The main matter would be heard next on July 19.

[Read Judgement]

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