In India, the Copyright Act, 1957, (“Copyright Act”) provides for copyright protection for various forms of creative output including for films and music. The protection of a copyright is extended to the expression of an idea in a physical form. This classical approach arose out of the need to protect the artistic or creative output of human society and thereby provide a commercial incentive for people to create art in various forms.

The peculiarity of the Indian entertainment industry lies in the fact that the two sectors, films and music, are inextricably linked with each other. Consequently, piracy in one sector has and adverse effect on the other as well. At the same time, it must be acknowledged that the two sectors are also grappling with forms of piracy peculiar to their sector.

The advances in technology have acted as a double-edged sword to the films and music industry. While it has helped improve the technical aspects of production and distribution of films and music, unfortunately, it has also increased the possibilities of piracy and replication in these sectors through various media or technology application. The advent of the Internet is just one example. The medium has helped increase publicity; however, the well-known Napster case in the music industry illustrates the negative aspects of the medium. Recent reports indicate that the film industry could also be affected by such “Napsterisation”, if preventive measures are not taken up immediately.

Types of rights protected

The rights conferred by the Section 2(a) of Copyright Act are in the nature of an exclusive right conferred on the producer of a film, to do certain acts. These acts include:

• The making of a copy of the film, including a photograph of any image in the film like a still of the move
  
  
• The selling, hiring or offering for sale of hire of a copy of the film irrespective of whether the copy has been sold or hired before and
  
  
• Communication of the film to the public

Advances in technology have increased the number of ways in which copyright is infringed. The Indian legislature has taken note of these technological advances to a large extent. The Copyright Act was amended in 1995 to cover satellite/cable transmission as one of the forms in which films are communicated to the public, Thus, the producer has the right to decide when to make the film available to the public by means of satellite or cable transmission.

Types of Piracy

The right of the film producer under the Copyright Act also extends to the right to choose the medium on which copies of a film may be made and exhibited to the public. It is common and knowledge that this right of the producer is violated by making unauthorized copies on video and other medium like CD ROMs, and exhibition of such copies through cable networks. The introduction of newer technology only increases the risk of unauthorized copies being made with greater ease and prevention of such piracy becomes more difficult. This would be especially true if the medium of the Internet could be used to transmit unauthorized copies of the films, what has now been termed as the “Napsterisation” of the film industry.

A film itself consists of several potential copyright infringing components. If the movies it based on a literary work, then the author of the work has copyright on the making of a voive. If the movie has songs in it, the lyricists and composers have a copyright on their efforts in creating that song. Therefore the producer must first obtain permission from all of these artists before the movie can be made. Once obtained, the producer gets a separate and distinct copyright in the movie, which is independent of the copyrights listed earlier. It must be noted that when someone commissions a work for value like a producer employing a songwriter to write out songs for a movie then the copyright even in that song belongs to the producer.

Anti Piracy Measures

The copyright Act itself prescribes various remedies and penalties for infringing the diverse forms of protection accorded under the Copyright Act, These include:

a) Civil remedies, that is, the copyright owner is able to recover damages suffered on account of piracy. The copyright owner may also seek an injunction against the infringers, to prevent them form carrying on with piracy.

b) Penalties and Punishments: The Copyright Act prescribes penalties and punishments not only for those who directly indulge in piracy related activities, but also for those who aid and abet such activities. The Act provides for imprisonment up to three years and a maximum fine of Rs.2 lakhs. Enhanced penalty has been prescribed for repetitive commission of the same offence.

Additionally, it provides for registration of the copyright with the Registrar of Copyrights. It must be noted that such registration is not compulsory to enjoy the rights conferred by the Copyright Act. It acts as a supporting measure, since such registration is considered, to be ‘prima facie' evidence that the person registered is the owner of the copyright.

In India, the music industry has organized itself under the aegis of the Indian Music Industry Copyright Act itself, there was a general lack of awareness across the industry, the public and the enforcement agencies. The need of the hour appears to be increasing levels of awareness rather than enacting separate legislation to tackle piracy.