Infringement Of Copyright In Dramatic Works

© LEX-47

INFRINGEMENT OF COPYRIGHT IN DRAMATIC WORKS. “An artistic, literary or musical work is the brainchild of the author, the fruit of his labour and so, considered to be his property. So highly it is prized by all civilized nations that it is thought worthy of protection by national laws and international conventions.”1 INTRODUCTION. Human beings possess the faculty to think and create. They exploit their creation to earn bread. Since it is the creation of their mind, it is called the intellectual property. Every intellectual property, which adds to the cultural, social, scientific and economic development of the society, must be protected and encouraged. The creator must be suitably rewarded for his creation by providing legal protection to the intellectual output. The intellectual property law regulates the creation, use and exploitation of mental or creative labour. It prevents third parties from unjustifiably reaping the fruits of the creative labour of the author, which they have not sown. The Intellectual Property Rights (IPRs) are the legal rights governing the use of creation of human minds. Among other components, the copyright also forms the subject matter of the IPRs. The concepts of ‘copyright’ and ‘neighbouring rights’ have assumed significance in the light of current scientific, economic, social, political and legal environment not only in India but also across the world. The subject matter of the copyright has increased in ambit. Earlier the scope of copyright was restricted to protection of literary and artistic works. But the contemporary regime on the copyright also includes dramatic and musical works, cinematograph film, and sound recording. Apart from that, the copyright law also covers the neighbouring rights which consist of the right of performers, the rights of producers of phonograms and the rights of broadcasting organisations. The technological inventions that took place in past two centuries have substantiated the basis for the development of the copyright law.

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CHINNAPPA REDDY, J. in Gramophone Co. v. Birender Bahadur Pandey, AIR 1984 SC 667, p. 676.

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DEFINITION OF COPYRIGHT. Non-legal Definition. Copyright derives from the expression of “Copies of words”, first used in the context according to the Oxford Dictionary in 1586. According to the Oxford English Dictionary, ‘Copyright’ is ‘the exclusive right given by law for a certain term of years to an author, composer etc. (or his assignee) to print, publish and sell copies of his original work’. Statutory Definition. As far as the Indian context is concerned, Section 14 of the Copyright Act, 1957 lays down a bundle of several rights with respect to the original work of the author. The statutory provision is as follows: 14. Meaning of copyright.-For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:(a) in the case of a literary, dramatic or musical work, not being a computer programme, (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); (b) in the case of a computer programme,(i) to do any of the acts specified in clause (a); (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.” (c) in the case of an artistic work,(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work;

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(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv); (d) In the case of cinematograph film, (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public; (e) In the case of sound recording, (i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the sound recording to the public.

Thus, going through the provision of the Act, following features of the definition can be inferred: a) Sec. 14 deals with the definition of the copyright as the exclusive rights to do or to authorise to do certain acts in relation to the literary, dramatic or musical works, computer programmes, artistic works, cinematograph films and sound recordings. b) The nature of the acts authorised by the Act vary according to the subject matter of rights. c) The definition of ‘Copyright’ is exhaustive and extends only to those rights mentioned in Sec.14. NATURE OF COPYRIGHT. Copyright is an incorporeal property in nature. Since the owner creates the subject matter of the copyright, it becomes his property and he is justified in disposing it of by outright sale (assignment of his right) or by licensing. The property is termed as the incorporeal property as it originates in the mind of persons before it is expressed in material form. Ideas and thoughts are not protected under the copyright law as they are not considered works under the copyright law. But once it is reduced in writing or other material form, it becomes worthy of copyright protection.

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Copyright, being the aggregate of several rights, endowed on its owner, following features of copyright can be enumerated: a. Bundle of several statutory rights. Copyright is a creation of statute. It is granted and protected according to the Copyright Act. It is not a common law right. But it is not a single right but a bundle of several rights. b. Negative right. Copyright is the bundle of several exclusive rights, which entitle the owner to prevent others from copying his work or doing those acts which only he is entitled to do. c. For a time duration. These rights are accorded only for a limited duration of time. After the expiry of this duration, the subject matter of copyright becomes the public property and can be used by anyone without any hindrance. d. Originality of work. The protection of the subject matter of copyright is dependent upon the originality of the work and not its quality. Thus, howsoever bad is the quality of the work, if it is the original one, the author is endowed with the copyright protection. MORAL BASIS OF COPYRIGHT. The state of law prohibits one man to reap the profit and appropriate to himself what has been produced by the labour, skill and capital of another.2 The United Nations Declaration of Human Rights adopted by the United Nations on December 10, 1948 proclaimed the moral basis of intellectual property in Article 27 of the Declaration, which lays down that: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 2

Walter v. Lanes 1990 AC 519 (HL).

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Article 6 bis of the Berne Copyright Convention (International Convention for the Protection of Literary and Artistic Works) substantiates the moral basis of Copyright as follows: (1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained. (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

OBJECTIVES OF COPYRIGHT LAW. The copyright law mainly serves two purposes. First, the copyright law is developed to encourage and reward authors, composers, artists, designers and other creative people, who apply their skill and capital in presenting their works before the public. The author, or in some cases his employer, are given certain exclusive rights to enjoy the benefits of their work for a certain period of time. During this period the copyright owner is entitled to exclude others from enjoying the fruits of labour and skill put by him in producing the copyrighted work. These form the part of the economic rights. Apart from these rights the copyright law also recognises the moral rights of authors. Secondly, it creates an amicable balance between the rights of the author and public interests.

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AMBIT OF THE COPYRIGHT PROTECTION. As far as the Copyright Act, 1957 is concerned, Sec. 13 (1) of the Act lays down the various fields, in which the copyright protection can be endowed to the author. 13. Works in which copyright subsists.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,(a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings.

DRAMATIC WORK. Sec.2 (h) of the Copyright Act, 1957 defines ‘Dramatic work’ as: (h) "dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.

If we go through Sec.2 (h), the definition of the term ‘dramatic work’ includes following elements: 1. any piece for recitation; 2. choreographic work or entertainment in a dumb show; and 3. The scenic arrangement or acting form of which is fixed in writing or otherwise. It excludes a film cinematograph. In the English Copyright Act of 1956, dramatic work is defined to include “a choreographic work or entertainment in dumb show if reduced to writing in the form in which the work or entertainment is to be presented but does not include a cinematograph film as distinct from a scenario or script for a cinematographic film.” The word ‘scenic arrangement’ which appears in the Indian definition does not appear in the English definition.

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The definition of ‘dramatic work’ of this clause of the Indian Copyright Act follows the definition given in the Act of 1911. RIGHTS AVAILABLE TO THE COPYRIGHT OWNER. Section 14 of the Copyright Act, 1957 lays down several exclusive rights, available to the owner of copyright in relation to a literary, dramatic or musical work. These exclusive rights are subject to the provisions of the Act. These rights are: a. to reproduce the work in any material form including the storing of it in any medium by electronic means; b. to issue copies of the work to the public not being copies already in circulation; c. to perform the work in public, or communicate it to the public; d. to make any cinematograph film or sound recording in respect of the work; e. to make any translation of the work; F.

to make any adaptation of the work; and

g. to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses ‘a’ to ‘f’.

INFRINGEMENT OF COPYRIGHT IN DRAMATIC WORKS. For the infringement of a dramatic work, it is not necessary that the speech or dialogue should be copied. Also, if mere theme is adopted within the limits of fair use, it does not constitute infringement. But if the same dramatic meaning is merely expressed in a different expression without exercise of any original skill or labour, it constitutes infringement. Similarity in scenes and sequences is the evidence of piracy. In Frankel v. Irwin3, it was observed that piracy may also consist in appropriating the action of a play without any of the words. In order to constitute infringement, the production on the stage must tell the same story as the copyrighted drama. If the production tells a different story, or enacts another and different sequences or events4. If a substantial number of incidents, scenes and episodes, in an alleged infringing play are so nearly identical, in detail and 3 4

34 F (2d) 142. Seltzer v. Sunbrock 22 F Supp 621.

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combination with those found in the copyrighted drama, as to exclude all reasonable possibility of coincidence and point to the conclusion that they were taken from the infringed play, it amounts to piracy of the original play5. If the ordinary observation fails to reveal existence of any common feature between the two plays, except as ‘incomplete skeleton’ or ‘mere sub-section of a plot’ not susceptible of copyright, there is no infringement6. But if the defendant reproduces the original copyrighted drama’s scenes with substantially the same dramatic situation, he is held liable for infringement7. The Copyright Act, 1957 lays down following provision in respect of the infringement of copyright: 51. When copyright infringed. -Copyright in a work shall be deemed to be infringed(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or (b) when any person(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work.

Ball in his book Ball on Copyright8 has defined ‘dramatic work’ as a composition consisting of a series of events with various parts and characters, invented and arranged in sequence, which are capable of being so realistically represented and developed on the stage by the presentation of the successive incidents and display of feelings and earnestness on the part of actors impersonating the characters of the play as to produce corresponding emotions in the spectators and tell them a story as intelligibly as if it had been presented as a written narrative.

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Simonton v. Gordon 12 F (2d) 116. Dymaow v. Bolton 11F (2d) 690, 692. 7 Chappel & Co. v. Fields 210 Fed 864. 8 R. G. Chaturvedi, Iyenger’s the Copyright Act, 1957 (6th ed.) p. 333. 6

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Ball defines drama as representation of passion which progressively increases in interest and emotion as the action proceeds9. It is the product of human mind, arrived at by the exercise of substantial independent skill, creative labour or judgment, which can be presented through the medium of dancing and acting and is capable of being recorded in writing. The definition provided by the Copyright Act, 1957 is the inclusive one. Other things can also come under the ambit of the definition. In order to look into the infringement of an original copyrighted dramatic work, its essential elements have to be touched upon.

• Choreographic work. Choreography is the art of arranging or designing of ballet or stage dance in symbolic language. In order to qualify for copyright protection, it must be reduced in writing. The form of writing is immaterial.

• Scenic arrangement. Scenic arrangement or acting form is protected under the Copyright Act, 1957, provided it is fixed in writing or otherwise. Thus the scenic effects, in order to be protected, must be reduced in some permanent form. In Tate v. Fullbrook10, FARWELL LJ. observed that mere scenic effects, taken by themselves and apart from words and incidents of the piece, were not protected by copyright. But once there is a dialogue, scenic effects become accessory to the dramatic work, and the whole becomes the subject of copyright.

• Gags. Gags are an actor’s interpolations in dramatic dialogue. They are changed from time to time and do not form a permanent part of the play. Also there is no certainty of subject matter. Therefore they are not subject matter of copyright protection.

• Ballet. The music, the story, the choreography, the scenery and the costumes form the part of a ballet. Thus, it is a composite work. Such a work could be the subject matter of copyright.

• Drama or the film based on a newspaper article. The form, manner or arrangement of a drama and movie are materially different from a newspaper article and by virtue of the media there is substantial dissimilarity in the mode of 9

Ibid, p. 334.

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(1908) 1 KB 821.

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expression of the idea in the newspaper article and in a stage play or in a movie. In Indian Express v. Jagmohan11, the defendants made a stage play and a movie based on the central theme of certain articles published by the plaintiff. The court declined to hold that the stage play or the movie was infringement of the newspaper article. It was further held that there exists no copyright in an event, which has actually taken place.

• Parallelism of Phrase. Mere fact that the same or similar isolated expressions are found in the defendant’s play, does not constitute it an infringement, for the reason that copyright does not cover words or phrases, or ideas 12. The enquiry must be as to the copyrightable matter the plaintiff had protected under the copyright law. The defendants are liable only if they have impinged upon the private domain of the plaintiff. The private domain here is referred to, includes the sequence of language used, that is, the dialogue13. Detached word and phrases employed in the dramatic work can be freely used. No one can appropriate them altogether14. The copying of the phraseology is not essential part of the infringement.

• Incidents. Incidents form the part of episode of the story. Incidents are in public domain. If incidents of a copyrighted play are adapted to a subsequent play, no infringement of copyright is committed. The author does not have monopoly over the incidents in the play. Others have right to exploit the facts, experiences, field of thought and general ideas, but they are not entitled to substantially copy a concrete form in which the circumstances and ideas have been developed, arranged and put into shape15.

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AIR 1985 Bom 229.

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Lowenfels v. Nathan 2 Fed Supp 73, 80.

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Sheldon v. Metro-Goldwyn Pictures 7 Fed Supp 837, 842.

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Frankel v. Irwin 34 F (2d) 142, 143.

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Holmes v. Hurst 174 US 82: Sup 606; Eichle v. Marcin 241 Fed 404, 408.

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Copying of the form, in which the incident is expressed, amounts to infringement16. But the appropriation of a number of incidents constitutes infringement, because these together form the plot or action of a play or novel17.

• Plot. The copyright does not protect the fundamental plot, which was common property long before the story was written. If the particular treatment, embellishments or dress are appropriated out of the old plot, it amounts to infringement.

• Theme. Ideas are not protected by copyright. Theme, being the basic idea of the play is not protected. But if the theme is presented in an original way, with novelty of treatment or establishment, the copyright in theme is exclusively protected18. If a particular theme of a play is appropriated and presented in the same way and with the same treatment and embellishment, it results into infringement.

• Environment. The mere fact that two plays are based on the same environment does not constitute the infringement of one play by another. An artist may paint a picture of a landscape for which he can get a copyright, but he can not obtain a copyright in the landscape. Same applies to the author who places his plot in a particular locale19.

• Emotions. Emotions like mere ideas are common property. The fact that the underlying emotions are found in the latter play would not be alone sufficient to prove infringement. If the similar emotions are portrayed by sequence of events, presented in like manner, expression and form then infringement would be apparent20. Adaptation of a dramatic work. The owner of the copyright enjoys the exclusive right to adapt a dramatic work. If there is no originality in the new work, and if dramatic scene or situations of another’s work are incorporated therein, thereby lacking in originality,

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Rush v. Oursler 39 F (2d) 469, 473. Frankel v. Irwin 34 F (2d) 142, 143.

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Roe Lawton v. Hal E. Roach Studios 18 F (2d) 126. Sheldon v. Metro-Goldwyn Pictures 7 Fed Supp 837, 843. 20 Nichols v. Universal Pictures Corporation 34 F (2d) 145, 147. 19

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without any alteration in the constituting part of the series of events, or the sequence of the events in the series, there is infringement21. Infringement may also occur where the dramatic work is converted into a nondramatic work. Infringement by Cinematograph Film. If on reading the screen play and the dialogue one gets an impression that this is the reproduction of the drama, the case of infringement can be noted. In R G Anand v. Delux Films22, the Supreme Court, after careful consideration of various authorities and case laws on the point of infringement of copyright, laid down following propositions: 1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by tile author of the copy-righted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

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Daly v. Palmer 6 Fed Cas 1133, 1136. AIR 1978 SC 1613.

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4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two words are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved By clear and cogent evidence after applying the various tests laid down by decided cases 7. Where however the question is of the violation of the copyright of a stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the Idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved. In Fortune Films International v. Dev Anand23, The main issue in this case was whether the performance of a cine artiste in a film is a work protected as an artistic work or dramatic work or that of a cinematograph film. The Court held that the copyright of the respondent actor extended to his work in the film and not in the film as a whole. As to the nature of the respondent’s work, the Court considered whether it would fall into any of the protected categories. It held that it was not an artistic work as it was not a painting, sculpture, drawing, engraving or a photograph. It was not a dramatic work as it was not a piece of recitation, choreographic works, or entertainment in a dumb show and further. Also, since ‘dramatic work’ in the sub-section excluded cinematographic film, it could not be said to be a dramatic work. 23

AIR 1979 Bom. 17

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REMEDIES FOR THE INFRINGEMENT. Civil Remedies. Sections 54 to 62 lay down the provision of remedy in the form of civil nature. These remedies include injunction, damages and accounts, delivery of infringing copies and damages for conversion. Criminal Remedies. Sections 63 to 66 provide for the criminal remedies, which include imprisonment of the accused or imposition of fine or both, seizure of infringing copies and delivery of infringing copies to the original owner. Administrative Remedies. Section 53 says that in case of infringement of the copyright, the plaintiff can move to the Registrar of Copyright to ban the import of infringing copies into India and the delivery of the infringing copies to the owner of the copyright.

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CONCLUSION. A man is entitled to the fruits of his mental labour. He is entitled to exclude others from enjoying the fruits of the labour and hard work, which he puts in giving shape to his creation. The moral basis on which the law of copyright exists is the English Commandment- THOU SHALT NOT STEAL. There are sufficient case laws on the point of infringement of the copyright in dramatic works. But largely, these cases can be found in the foreign authorities. The Copyright Act 1957 lays down the provision of remedy for the infringement of the copyright. These remedies are of three types, namely civil, criminal and administrative.

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BIBLIOGRAPHY. 1. Ahuja, V. K., Law Relating to Intellectual Property Rights, 2007, Lexis Nexis, Butterworths, New Delhi.

2. Chaturvedi, R. G., Iyenger’s the Copyright Act, 1957, 6th ed., Butterworths, New Delhi.

3. Narayanan, P., Law of Copyright and Industrial Designs, 4th ed., Eastern Law House, New Delhi.

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