Read the following case on Copyright Law and answer the questions that follows : The present case is in relation to widely publicized Telugu film entitled 'Sardar Rubber Singh'. This is a film that stars Mr. Savan Kalyan

CS Professional · Intellectual Property Rights - Law and Practice · PYQS · June 2017
Read the following case on Copyright Law and answer the questions that follows : The present case is in relation to widely publicized Telugu film entitled 'Sardar Rubber Singh'. This is a film that stars Mr. Savan Kalyan, at actor of considerable renowned in the Telugu film industry known as Tollywood. The movie was schedule to release on 8th April, 2016. From August 2015 Sardar Rubber Singh was widely advertised. The Plaintiffs themselves admit to having seen posters in January 2016, but waited till March 2016 for the trailer. Sardar Rubber Singh is scheduled for release on 8th April, 2016. The Suit was filed on 24th March, 2016, at the very last minute. Defendant says that Sardar Rubber Singh has been produced with a ₹ 65 Crore budget. It is scheduled for theatrical release in 2000 screens worldwide and over 600 screens in Hindi. Back-to-back distribution and commercial agreements have been executed with several large cinema chains in India, U.S.A. and across the world. The case was filed on behalf of the plaintiff Aitraaz Khan. The Plaintiff alleged infrigement in respect of his film 'Jabaang' on two footings. That is copyright infringement and passing off. Two films were produced by the Plaintiffs Aitraaz Khan. The franchise features. Mr. Balwan Khan who was shown as a colourful police officer known as 'Chulbul Pandey'. The first issue is that the Bulbul Pandey character from the Jabangg films has been infringed by the Defendants in their forthcoming film 'Sardar Rubber Singh'. This is a sequel to the Defendants' hugely successful 'Rubber Singh', a remake authorised under a written and undisputed assignment, of the first 'Jabangg' film. In 2009/2010, the Plaintiff produced and released the first Jabangg film. The film script, story, screenplay and dialogue were written by Anubhav Singh, hired by the Plaintiff Aitraaz Khan on a commission basis for that purposes. The Plaintiffs created the unique character of Bulbul Pandey, portrayed by Mr. Balwan Khan. This character is described as "a corrupt but fearless police officer". According to the plaintiff there are various features that make this character unique they are: (a) Bulbul Pandey (portrayed by Mr. Balwan Khan) plays a corrupt but fearless police officer. He lives with his family and has a troubled relationship with his stepfather and half-brother. He calls himself "Robin Hood" Pandey. (b) Bulbul Pandey has his unique, funny and bizarre way of dealing with rogue elements. The character has developed a unique dance style. The entrie character of Bulbul Pandey was that of an endearing, loving and funny police officer, a spontaneous and peculiar laugh adds charm to his steps. Bulbul Pandey rides a bike in the movie. (c) Bulbul Pandey wears aviators and has a unique style of tucking the aviators on the back of his collar in the Film. (d) Bulbul Pandey has a well-built body type, neat close-cut hairdo and handlebar pencil-thin moustache. Though a police officer, he wears a uniform with the top buttons open. (e) Bulbul Pandey is a very light hearted police officer who dances with the other police officials at the police station. Even his fighting style has comic elements." The Jabangg film was extremely successful. This uniquely etched character of Culbul Pandey and it is suggested that this is no ordinary, generic or 'stock' police hero. Some two years later on 21st January, 2011, the Plaintiff entered into an agreement with Rameshwara Arts, a proprietary concern of the Savan Kalyan, for the remake rights of the first Jabangg film. As per the agreement the Assignee obtained absolute rights for remaking the film in Telugu language only. The Assignee will be having absolute rights to exploit the remade version of the film in Telugu Language only all over the world in all dimensions commercially and non-commercially. As per the agreement the term "Remake Rights" shall mean and included the rights to make a Film based on the Film and/or Script but not limited to the following: (a) The right to remake the Film in Telugu Language and for the Territory based on and using the story line, script, scenes, screenplay, dialogues, characters, picturisation, designs, dramatic work, artistic works and names of the characters, passages, title of the Film or any part thereof etc. of the Film in any manners as Assignee may deem fit the Film or the story line of the Film in any manner Assignee so chooses. (b) The exclusive right in the intellectual Property of the New Film including but not limited to the Copyright and all other ancillary rights and exclusive rights in the New Film and its underlying works. (c) Any and all other rights that are incidential to and are necessary for appropriate utilization of the above mentioned rights i.e. (i) and (ii) of this clause. As per the agreement the term "Script" means and includes jointly and severally the story, each script outline treatment, draft, re-write and polish and screenplay of the Film in Hindi with dialogues. Plaintiffs' case is that the Rubber Singh character portrayed br Mr. Savan Kalyan is nothing but an avatar of the Bulbul Pandey character portrayed by Mr. Balwant Khan. If Rubber Singh brough into existence a wholly different persona, then surely its creators and owners have the right to futher use that character and persona, no matter what any document said. Other than the name, there is no difference, and anyone seeing Rubber Singh on-screen, played by Mr. Savan Kalyan, will believe that he is seeing Bulbul Pandey albeit albeit with a different visage. Defendant's contention is that the name was different. The portrayal was different. The stylization was different. The locales were different. So too were his mannerisms, qualities and, most of all, his core value system, his moral compass: where Bulbal Pandey is fearless but corrupt, Rubber Singh is fearless and honest. This was an adaptation developed distinctively. The script or story line underlying Rubber Singh, is said to have been developed by Mr. Savan Kalyan himself, has an independent copyright. Further they informed that the agreement of 21st January, 2011 relates not to a licence but to an assignment, a very different thing. The Rubber Singh character for the first Telugu film, though a derivative character, was one that was unique to that particular film. This is reflected by the fact that there is an assignment in perpetuity and with exclusivity. Copyright vested with the Defendants within the meaning of Section 14(a) and (d) respectively of a literary work and a cinematographic film. The rights in the Rubber Singh character are wholly distinct from the rights in the Bulbul Pandey character. The rights in the Rubber Singh character vest in and only in the Defendants. Defendants claim was not only that the producers had copyright in the cinematography film but that they also owned the rights in the script, and that it was the entirety of all of this material that was assigned. There is also an argument in passing off that any person watching the Rubber Singh film is bound to recognise in the Rubber Singh's character as portrayed by Defendant Mr. Savan Kalyan, the Bulbul Pandey character portrayed by Mr. Balwant Khan. It is one thing to say that the character first portrayed by Mr. Balwant Khan is now being portrayed as an adaptation by Mr. Savan Kalyan. It is quite another thing to say that the two characters are exact and that anyone seeing Mr. Savan Kalyan's performance would think and only think of Mr. Balwan Khan's portrayal of a particular and character and none other. Again of this conflation of the two personas, and of the Rubber Singh character having no persona of his own, there is no evidence. The Court is of the opinion that both Bulbul Pandey and Rubber Singh wear their uniforms in a casual manner are hardly unique. The Rubber Singh character features a police officer who is both fearless and honest. The Bulbul Pandey in the Jabangg franchise is just as fearless, on the footing that we all want our heroes to be fearless, but he is at the same time corrupt, a nod to reality but hardly an aspiration. The setting of the two films is different, the Jabangg films are set in North India while the Rubber Singh films are in the Andhra/Telangana region. There are many other points of distinction too. Basing on the argument advanced and reasons explained in the present case the Bombay High Court is unable to find for the Plaintiffs on either a prima facie or balance of convenience, as a result the court decline ad-interim reliefs. Questions: (c) Explain the term infringement of copyright and highlight any six statutory exceptions there in.

Answer & Explanation:

Copyright law confers upon the owner of the work a bundle of rights in respect of reproduction of the work and the other acts which enables the owner to get financial benefits by exercising such rights. If any of these rights relating to the work is carried out by a person other than the owner without the license of the owner or a competent authority under the act, it constitutes infringement of copyright in the work. Since copyright is granted for a limited period, there will be no infringement if the reproductions of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists. Accordingly the type of acts which will constitute infringement will also depend on the nature of work. Any person who without authorisation or assent of the copyright owner, exercises the rights in respect of the work which is the subject matter of copyright, or does anything which is the sole right of the copyright owner, commits infringement of the copyright (Kartar Singh Gianiv. Ladha Singh & Others, AIR 1934 Lah 777). Thus, if the reproduction of the work is carried out after the expiry of the copyright term the said act will not amount to infringement of copyright. Section 51 of the Copyright Act contemplates situations where copyright in a work shall be deemed to be infringed. As per the section copyright in a work shall be deemed to be infringed: (a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority does: Anything for which the exclusive right is conferred upon the owner of the copyright, or Permits for profit any place to be used for the communication of the work to 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 When any person: (i) makes for sale or hire or sells or lets for hire, or by way of trade display 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. However, import of one copy of any work is allowed for private and domestic use of the importer. Section 51 clarifies that the reproduction of literary, dramatic, musical or artistic work in the form of cinematograph film shall be deemed to be an 'infringing copy'. The principle of conditional grants to proprietary rights in any intellectual property is to promote public interest. This is universally recognized and incorporated in intellectual property system. Protection and enforcement of intellectual property rights must: Be conducive to social and economic welfare; Safeguard an individual's fundamental rights; and Promote commerce, competition and innovation. In Copyright Laws exceptions and limitations are provisions which in public interest permit the use of copyrighted works without prior authorization or a license from its owner. Generally, exceptions and limitations to copyright are subject to a three-step test set out in the Berne Convention for the Protection of Literary and Artistic Works. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if: It covers special cases It does not conflict with the normal exploitation of the work; and It does not unreasonably prejudice the legitimate interests of the author. Statutory Exception Section 52 (1) Copyright Act contains around 33 categories of exceptions wherein the act committed shall not amount to an infringement of copyright. The objective behind laying down these exception is to promote public good and thus enable the reproduction of the work for certain public purposes, and for encouragement of private study, research and promotion of education. The list of acts which do not constitute an infringement of copyright are: A fair dealing with any literary, dramatic, musical or artistic work, not being a computer programme, for the purposes of- Private or personal use, including research; Criticism or review, whether of that work or of any other work; Reporting of current events and current affairs, including the reporting of a lecture delivered in public; The explanation appended therewith further clarifies that storing of any work in any electronic medium including the incidental storage of any computer programme, which is not itself an infringing copy for the said purposes, shall not constitute infringement of copyright. The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding; The reproduction or publication of a literary, dramatic, musical or artistic work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature; The reproduction of any literary, dramatic or musical or artistic work in a certified copy made or supplied in accordance with any law for the time being in force; The reading or recitation in public of reasonable extracts from a published literary or dramatic work; The publication in a collection, mainly composed of non-copyright matter, bona fide intended for instructional use, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for use in which copyright subsists. Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years. The reproduction of a literary, dramatic, musical or artistic work- by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or in answers to such questions; The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recordings if the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording. The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution; The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction; The storing of a word in any medium by electronic means by a non-commercial public library, for preservation if the library already possesses a non-digital copy of the work; The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India;

Topics: Copyright Law

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