India: Can A Tenant Utilize The Residence Of A Cinematograph Film Without Any Other License?

Last Updated: 5 March 2019
Article by Parag Kamani

Compiled by: Adv. Sachi Kapoor | Concept & Edited by: Dr. Mohan Dewan

At the outset, let's define a cinematograph film. It is a visual recording across any medium/platform containing moving images or stills, which may include a sound recording accompanying such visual recording.

The author of a cinematograph film is effectively its producer, as per Section 2(d) (v) of the Copyright Act, 1957. Video films are deemed to be work produced by a process analogous to cinematography.

Copyright in a cinematograph film under Section 14(d) provides the author of a cinematograph film the below listed exclusive rights:

  • to make a copy of the film, including a photograph or any image forming part thereof, and storing it in its entirety or any part thereof on any medium/platform by electronic or any other means;
  • to sell or to provide on rent, or to offer for sale or for rent, any copy of the film; and
  • to communicate the film to the public.

Besides the above rights, copyright protection is also available to the sound track.

The actors or performers in the film are conferred special rights called "Performer's Rights" under Section 38. However, once a performer has, by written agreement, consented to the incorporation of his/her performance in a cinematograph film, he/she shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer's right in the same film provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of the producer utilising such performances for commercial use.

Hence, since a film includes performances by various actors, dancers, and other such/similar artistes/performers, their respective permissions are required to film their performances. This is usually done by contracts being signed by the producer with each performer.

To communicate the film to the public means making the film available for viewing or for being heard or otherwise enjoyed by the public, directly or by any mode of diffusion, regardless of whether any member of the public actually sees, hears, or otherwise enjoys such film. Communication includes communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence, including residential rooms of any hotel, hostel, hospital, or similar. Communication to a private audience is not included here. What is prohibited is the commercial exploitation of the film without consent of the owner or without the license of the owner of the copyright.

A cinematograph film may also be a recording of a live performance like sport events, public functions, or dramatic or music performances, or it may be based on the cinematograph version of a literary or dramatic work. In the latter cases, if the corresponding literary or dramatic work is copyrighted, the shooting/recording of the film also requires the consent or license of the owner of the copyright in such literary or dramatic work. Similarly, if the film has a sound track recording of music, the producer will need to obtain the consent of the lyricist and the song writer [i.e. composer], if the copyright subsists with them.

Meanwhile, what is the impact of censorship on copyright? Since the subsistence of copyright depends only on the provisions of the Copyright Act, 1957 it would appear that even if the owner has not complied with film censorship requirements, it will not have a bearing on the copyright in the film or the enforcement of remedies against infringement.

Section 52 of the Copyright Act, 1957 does allow screening of movies subject to laws relating to "fair dealing". However, paradoxically, the Indian Copyright Act does not define the term "fair dealing", and the Honourable Courts have, on several occasions, referred to the landmark English case, 'Hubbard v Vosper', on the subject matter.

In effect, though a license from the producer should be sufficient for the usage of the cinematograph film, with the onset of the digital space, rights have been further broken down across mediums/platforms – broadcast, cable, territorial, satellite, video-on-demand, etc. – and, further, so have film rights been divided between the complete film, and the song sequences depicted within the film as against merely sound recordings, which may be available in a physical format or digitally for downloads/streaming purposes. Hence, dependent on the requirement of the "tenant", several licenses may need to be secured prior to the usage of the entire or even part of the film and, more often than not, it depends upon the facts and circumstances of each case.

(*The author has been part of the global Media & Entertainment industry for 30 years.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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