India: Slumdogs & Copycats

The Bollywood Kung Fu comedy, Chandni Chowk to China, is remarkable not just for its marriage of popular genres from the world's most populous countries. It is also one of the few Bollywood movies to be bankrolled by a major studio. The studio, Warner Bros, announced stern anti-piracy measures as part of its worldwide marketing of the movie. It may also be that rare beast, a Bollywood movie that is not a copy by the standards of the world's largest entertainment industry. Yet the film is an anomaly in a country where both copycat plots and piracy are rife.

Bollywood is India's largest film industry and gained industry status in 2001. It now produces close to 1000 titles a year providing an estimated annual turnover of $10 billion. It is estimated that domestic box office collections will grow at 11%, overseas collections at 19% and home viewing at 15% per year.

As the country has opened it's markets, Bollywood's move from a family run business to a streamlined, corporate structure has had mixed results. It is increasingly open to foreign investment and collaborations; Warner Bros., DreamWorks and Universal are all engaging with Bollywood in different ways. Yet its participation in industry compliance with copyright issues has been less than wholehearted on occasion. Copycatting is endemic though Bollywood's brand of melodramatic, all singing, all dancing excess may appear singularly different. On the other hand, piracy costs Bollywood a high amount of its revenue, so understandably the industry has been more enthusiastic about enforcing its rights.

Indian copyright laws resemble those in the developed world. Further, the 1994 amendments to the Copyright Act of 1957 brought it into compliance with TRIPS, the international intellectual property treaty which has been adopted in many countries. However, a copyright infringement claim cannot be brought under TRIPS but must be made under Indian copyright law. As in most countries, to obtain copyright in a film, the work must be "original". Rights in the work may be exploitable rights or moral rights. In infringement matters, the Indian courts use a "lay observer" test i.e. a person viewing the original and the copy should have an "unmistakable impression that the subsequent work is a copy of the original". In assessing this, the degree of copying is not the only criteria. As long as the copy borrows all that is original and novel in the original work, there are strong grounds for infringement. A causal connection must however be established that shows that the copier relied on the original work.

Bollywood's enthusiastic copycatting of well-known books or films relies on the legal principle that there is no copyright in ideas. Copyright protects the form in which the ideas are expressed. So within certain limits, it is possible to take themes or ideas from a copyright work and incorporate them into another work without infringing copyright. Whether infringement occurs is ultimately a question of degree. Even in Australia, there are very few copycatting cases where the copyright owner has succeeded in a copyright infringement claim.

Any number of Indian websites catalogue copycatting by Bollywood. However, only a few cases have come up before the courts and they have followed no particular pattern. In the most recent case, the makers of a Tamil film, itself allegedly copied from the film "Memento", sued the makers of the Hindi remake for copyright infringement and breach of contract. The case has not yet been decided.

Probably the best known case remains the suit filed by Barbara Taylor Bradford, a best-selling English novelist. Bradford alleged that an Indian TV serial called Karishma - Miracles of Destiny copied her popular novel, A Woman of Substance. The courts decided in favour of the TV company on the grounds that merely the "rags to riches" theme of the book was present in the TV serial and this could not be protected by copyright. For infringement to be established there had to be similarity in the expression of the idea by way of incidents, events, expression of language and situation. The case highlighted one of the perennial problems in establishing copyright infringement in India; the original work is so buried in cultural idiom that it can be hard to ascertain in the copied work. Added to this is the sensitivity of India's systems to cultural imperialism.

This was best demonstrated by cases involving the Harry Potter franchise. Penguin India, the publishers of the Harry Potter books in India, took action against a highly popular religious display which used a model of the Hogwarts School. Such religious displays have a long standing tradition and usually employ topical themes as backdrops. Consequently, the reputation of the publishers as well as the author suffered. Though Penguin India successfully established that the display was a large-scale, commercially sponsored event, the case was eventually dismissed with certain conditions.

Warner Bros. also sued with regard to an Indian film title Hari Puttar. Whilst the title was clearly a cheeky nod to the Potter franchise, the film itself was based on another Hollywood movie, Home Alone. Here the courts took the view that the public would be able to differentiate between the two titles. Additionally, to their detriment, Warner Bros. had waited three years to file their case so Hari Puttar was left alone to wield his magic. As it turned out, the film did not do well at the box office.

Bollywood also has an associated music industry as films are generously peppered with song and dance sequences. These borrow freely and widely from many sources, both external and internal. In the past six months, Sony BMG initiated legal proceedings against TPS Films for $320,000 in damages, for infringing copyright in a Taiwanese musician's tune. Another earlier case dealt with infringement of a song from an Indian ad jingle. The case was settled out of court with a monetary settlement between the two parties. It is early days but it may well be that copyright infringement is easier to establish with a song than with an entire film.

Despite the theoretical availability of copyright protection in India, copycatting remains a problem. Further, the few infringement cases before the courts have found in favour of the copycatter and not the original copyright owner. Borrowing from different sources is part and parcel of creative industries. The problem lies in seeking authorisation and obtaining a proper license. Nevertheless, as Bradford pointed out, her case highlighted that infringement was transnational and was easy to determine with the advent of globalisation in countries like India. Whether the opening of the movie market and the emergence of foreign players will mean a change in local attitudes as well as more infringement cases before the courts remains to be seen.

India's post TRIPS measures are primarily directed to piracy, largely because of the revenues involved. Consequently Bollywood has attempted to proactively engage with the judicial system on piracy matters and has sought a separate channel to enforce copyright. An Ernst and Young report estimates that Bollywood lost 571,896 jobs and $959 million owing to piracy. All this has left stakeholders like Paramount Pictures Corporation, Sony Pictures, Twentieth Century Fox and Warner Bros Pictures International understandably anxious. However, Mr. Lall, a New Delhi based lawyer, who represents the Motion Pictures Association in India believes that things are changing and piracy is increasingly being seen as a criminal offence with both magistrates and the police likely to be sensitized to it.

One thing is clear. India is increasingly aligned to the global entertainment industry. This year a transnational movie set in the country, Slumdog Millionaire, took home the big prizes at the Oscars. Will this serve as a catalyst for change whilst ensuring Bollywood stays true to its origins? A true and transparent enforcement of copyright may finally take center stage.

References:

1. http://copyright.gov.in/

2. Rachana Desai, "Copyright Infringement in the Indian Film Industry," Vanderbilt Journal of Entertainment Law & Practice, 7 Vand. J. Ent. L. & Prac. 259 (Spring 2005)

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