Copyright Protection in Entertainment Industry

 

Copyright can be understood as a form of intellectual property right which aims at protecting certain forms of creative works. These forms of creativity may vary such as literary works, dramatic works, cinematographic works, music etc.

Since copyright has a vast application on protection of tangible or intangible forms of creative works, this paper focuses on how cinematographic works are protected under the copyright regime and how the Indian judiciary provides remedies to the aggrieved creator. But we are not concerned with what happens when there is actual infringement of the copyright but what interim reliefs the court provides to the Producers of the movies. (which are the creator in the case of Cinematographic works.) i.e. injunctions to prevent anticipated monetary loss which might happen if there is an infringement.

For this we need an understanding of what qualifications a movie must possess in order to come under the ambit of copyright protection as a cinematographic work.  Section 2(f) of The copyright act 1957 defines a “cinematograph film” as “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.[1]

An infringement for a cinematographic film as defined under section 14(d) of the Copyright Act, 1957, the person infringing the copyright of a cinematographic work is required to be made a party to the suit and he must have communicated the entire film or a part of the film to the public.[2]

When we talk about the tools available to the creators of such artistic works protected by the copyright act, one remedy that producers can seek is ‘Anton Piller orders’ which is a court order which provides the right to search premises and seize evidence without prior warning.[3] But the courts have taken that a step ahead with giving John doe orders, which are nothing but ex parte Anton Piller orders or preliminary injunctions obtained against unidentified defendants. We can trace the origin of such John doe copyright orders both in the UK and the USA. The first such case recorded in the UK was EMI Records Ltd. V Kudhail[4]. The plaintiff alleged infringement of certain cassette tapes by street traders, who could not be identified hence the plaintiff John doe order against the class of all unidentified member which were defined as traders selling cassettes bearing the pirate name of ‘Oak Records’ to prevent counterfeiting, the court held that the plaintiff was successful in establishing that such group of people of class exists and share a common interest and since individual members were not identifiable due to secrecy of the group and hence the ex parte  order was justified.

Billy Joel et al. v Various john does, Jane does and ABC company[5]which was the first US case regarding John doe copyright infringement order, In this case a John doe order was granted in order to prevent unauthorized sale of merchandise bearing the name of Billy Joel, outside the venues where his concerts were held in order to prevent revenue loss because of the availability of counterfeit merchandise. The court held that the plaintiff has justified that such injunction is needed against such unknown persons given the facts and circumstances. The court also ordered that in order to identify the parties/individuals responsible for the sale of such counterfeit merchandise, copies of the restraining order should be served to all those who were found in possession of such merchandise, and they were required to reveal their identities so that they can be added as a party to the case and they can contest the action.

 

Interim orders in the intellectual property regime are nothing new, and interim orders are backed by Order 39 rule 1 & 2 of the Code of Civil Procedure, 1908 (CPC). The courts were giving such interim reliefs to the creators for protection of their intellectual property for a long time but the first instance where a John doe order (popularly known as “Ashok Kumar Orders’ in India) was introduced by the Delhi high court in Taj Television v Rajan Mandal[6]. the plaintiff owned Ten Sports and the broadcasting rights to various sporting events, including matches of the Football world cup. The plaintiff gave licenses to various cable operators to transmit the channel during the time of world cup but there were a large number of unauthorized operators who were transmitting the channel, some of them were identified but large number of such unauthorized operators remained unidentified. The plaintiff filed a suit to seek ex parte relief against such named and unnamed cable operators to restrain them from infringing the plaintiff’s right to broadcast under section 37 of the Indian copyright act, 1957.

 

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[1] Section 2(f) of The copyright act, 1957

[2] Section 14(d) of The Copyright Act, 1957

[3]Daniel S. Drapeau and Michel W. Drapeau, The Taming of John Doe by Federal Courts of Canada, 17 C.I.P.R 545, [1976] 1 All E.R. 55 (C.A.

[4]EMI Records ltd. V Kudhail, [1985] F.S.R. 36, decided on 15^thjune 1983

[5]Billy Joel et al. v Various John Does, Jane Does and ABC company, 499 F Supp. 791 (1980), decided on 18^th July 1980

[6]Taj Television v Rajan Mandal, [2003] F.S.R. 22, decided on 14^thjune 2002