The entertainment industry in India is one of the biggest sectors of its kind in the world having access by people all around is estimated to generate a striking revenue of approximately USD 35 billion.
With digitalization and globalization gaining impetus in the production of content; the media and entertainment industry is thriving through momentum due to dilution and ease in relaxations of various regulations in the governance of the broadcasting sectors by the government.
The intangible rights like Creative works and innovative works coupled with unique creations of the inventor, essentially implying Intellectual Property Rights (IPRs) often demands protection from data theft, duplication, and piracy concerns.
Though, the impact of COVID-19 has caused the sudden transition from physical to online presentation and consumption of content precipitated by the COVID-19 stay-at-home the Media and Entertainment industry quite succumbed to the various copyright issues.
In this paper, the impact of the coronavirus pandemic on the media and entertainment industry of India along with the legal issues faced by copyright infringement is being studied. The intervention of the courts along with the remedies available is also being deliberated upon.
What are Copyright Infringement and Copyright Piracy?
Copyright is a term that indicates a tool acquired by the media and entertainment industry (hereinafter referred to as M&ES) to protect the original and creative invention of the creator to restrict the unauthorized access of the work. The material is safeguarded by copyright provisions and the owner (inventor) of the intangible asset has the exclusive right for its application. There is a need to protect the original work of the owner from the hazards of copyright piracy and infringement to preserve the efforts of the owner’s creation.
In general, terms, when the creation of the owner is accessed in an unauthorized manner it gives rise to an infringement of a person’s Intellectual property (IP).
Piracy generally is theft or duplication or unauthorized use of the original creation of the owner without any prior consent or approval which has been guarded by the Copyright Act.
Copyright piracy affects both the economic and the creative aspects of the inventor’s property.
For instance: If someone reproduces a song with some variance and distributes the same through all mediums of communication without any prior authorization of the owner, it amounts to copyright piracy.
LEGAL ISSUES PERTAINING TO M&E and IN TIMES OF COVID-19
- Unlawful utilization of user-generated content
- Unlawful Collection of Copyrighted Content through social media platforms
- Copyright Infringement concerning Music Piracy
- Copyright Infringement for Cinematographic Piracy
- Plagiarism of Script
- Trademark law in the M&E industry
- USER-GENERATED CONTENT AND ITS UNLAWFUL UTILIZATION
Any publicly viewable content text, image, social media post, comment, video, or audio, commercials, chats, forums, pins, podcasting, tweets, videos generated by the user i.e. consumer with open access rather than the business entities behind the website.
For companies, UGC can create a bolster of free marketing and get customers engaged but the companies have to be beware of the copyright implications of the user. One may be held responsible if other users if not oneself share the copyrighted content or trademark infringing content which the third party has created.
Obscene or Offensive content infiltrated by the users may hamper the websites ’content acceptability and would be liable for legal consequences.
With the current COVID-19 Crisis and impetus in the use of User Generated Content,
YouTube as a precautionary measure about policing the content of its site gives a disclaimer,
‘Its Terms of Service expressly forbids its users from submitted material that is subject to a third party’s copyright’
- UNLAWFUL COLLECTION AND DISTRIBUTION OF COPYRIGHTED CONTENT FROM SOCIAL MEDIA PLATFORMS
Social Media has captivated the world with its revolutionized trends and the businesses using it to diversify their products and services. One of the biggest challenges faced is enforcement of the Intellectual Property laws in this dimensionless sphere of cyberspace.
Search engines, Web hosts, Internet Service Providers being the prime intermediaries has to regulate the content which is posing as defamatory content, and publishing copyrighted content without the perusal of the owner. Downloading images, videos, or sound files publishing them on social media platforms is quite prevalent thus gaining unauthorized access specifically when the media links are embedded.
In the context of COVID-19, to expose an individual as exhibiting symptoms or as having contracted the virus is as an intrusion of an individual’s privacy and spreading the same in the social media to defame.
- COPYRIGHT WITH RESPECT TO MUSIC PIRACY
Digital music is currently traded on P2P networks i.e. P2P Peer to Peer networking sites are not licensed by record labels and copyright holders, and under the law throughout the world, the activity is thus considered illegal.
Due to COVID, the music industry is regressing. The piracy during the COVID-19 lockdown has dropped to “unprecedented” levels not only in India but all through the world. Legitimate music sources were consumed by the users thought the pirated copies of various works were propagated and issued rapidly like
- Real-Time Piracy is like Live streaming of the copyrighted content.
- Uploads of recorded live streams accumulated from various unauthorized access in on-demand sites.
- Owners choose to use the technology of Digital Rights Management to protect the contents from unauthorized access and distribution. The purpose of Digital Rights Management is to prevent unauthorized redistribution of digital media and restrict the ways consumers can copy content they have been granted access to through tools that weren’t effective.
- COPYRIGHT INFRINGEMENT WITH RESPECT TO CINEMATOGRAPHIC PIRACY
Cinematograph film means any work of visual recording inclusive of sound recording processing a moving image produced.
The following are rampant acts involving infringement is:
- Making copies of the cinematograph for selling or hiring or selling or letting them for hire;
- Distributing infringing copies for trading and accruing profits or to such an extent to affect the rights of the owner cinematograph;
- Exhibiting infringing copies
- Importing of infringing copies into India.
The reported cases of online film piracy rose 62% in India in the last week of March compared to the last week of February 2020.
- PLAGIARISM OF SCRIPT
The film industries specifically South movies had always fought aggressively the issue of piracy in alarming proportions. Plagiarism is the theft and representation of another person’s thoughts, ideas, or expressions as one’s original work without giving due credit to the original owner.
Plagiarism is especially difficult to prove due to the substantial similarity between plots, ideas, and themes
In the year 2020, a plagiarism claim was made against an Oscar Award-winning movie where the Tamil producer of the movie Minsara Kanna has stated that the movie ‘The Parasite’ is built upon plagiarised work.
- TRADEMARK IN M&E INDUSTRY
The titles of songs, albums, movies, names of bands can be registered for protection under the Trademark law subject where the contents describing the creation ought to be genuine and unique.
These can be registered “entertainment” section includes
“apparatus for recording, transmission or reproduction of sound or images” under the international uniform classification standards.
- One of the issues is who is entitled to registration of the title – whether the owner of the copyright or the first person who files for the trademark registration.
- Another issue is that registration of a trademark lapses after 5 years if not used.
De minimis infringement
The doctrine of de minimis has been applied by the Delhi High Court as a defence for copyright infringement. The doctrine states that “the law does not concern itself with trifles”.
The de minimis maxim is much significant in the scenario of the copy infringements which go unnoticed.
The Delhi High Court applied the doctrine while deciding a copyright infringement suit in India Independent News v Yashraj Films Pvt Ltd.
The court made the following observations to be considered:
- the intensity of the harm caused
- the legal rights affected of the third party
- the purpose of the violated legal obligation
Blocking injunctions against ISPs
Another remedy the creator can seek is blocking and initiating violators of the Internet Service Providers (ISPs) through which the copyrighted content is circulating wide.
One form of blocking injunction is to have a court order against one or more several internet service providers (ISPs), asking them to implement technical measures to prevent access to websites hosting the copyrighted content.
In Eros International Media Limited v Telemax Links India Pvt Limited
The Bombay High Court ruled that disputes arising out of copyright infringement aren’t brought under the purview of arbitration. The court held that infringement is typically an issue in personam since a finding of infringement against one alleged infringer does not affect others. This was not the case with validity, since the grant or revocation of any IP right always acts in rem.
The owner can also seek three remedies under Section 58 of the Copyright Act,
- Profits that were made by the accused during unlawful conduct of infringement.
- Compensatory damages are to be granted to the owner for the losses incurred due to infringement.
- Conversion damages analyzing and examining the value of the product.
- Tvs Motor Company Limited vs. The Controller Of Patents & Designs
The Controller of Patents and Designs (‘Respondent’) were directed by The Intellectual Property Appellate Board (‘IPAB’) issued to grant a patent to TVS Motor Company Limited (‘Appellant’) for an invention related to anti-roll bar which was earlier denied a grant on the grounds of lack of novelty merely it represented being similar though it had differential features.
- Cinefones vs. Cinefones Systems & Anr
Plaintiff was using the mark ‘CINEFONES’ for audio-visual equipment in which the company was in the business including projectors, screens, etc. which were subsequently registered in 1979. The Bombay High Court (‘Court’) observed that Cinefones Systems (‘Defendant’) used the trademark of Cinefones (‘Plaintiff’) and also illicitly put to use the Plaintiff’s label for which the Bombay High Court issued an ex parte interim injunction.
- Mr. John Hart Jr. & Anr vs. Mr. Mukul Deora & Ors.
The Plaintiffs have approached the Court for an injunction restricting the release of the film “The White Tiger” (‘Film’) produced by Defendant to be released on Netflix. The Plaintiffs assert that when it came to their knowledge that Netflix was in the process of making and releasing the film on its platform, a notice was sent to the defendant to take necessary actions. The court directed the defendants
‘To keep detailed accounts of the earnings made from the film so if the Plaintiffs were to succeed in the future, it would facilitate the award of damages or monetary compensation.’
With the current resurgence of the COVID-19 second wave, the innovations and technological expansions are flourishing, so do the copyright laws need to be evolved with the current ramifications prevalent in the Media and Entertainment industry as threats to digitalization.
The efficiency of the Internet Service Providers in blocking the infringed content being hosted is doubtful with less severe alternative measures on row. Indian courts are being confronted with cutting-edge legal issues when it comes to these sectors of the Media and Entertainment industry in reference to Intellectual Property rights, Courts are dealing with challenges in dealing with these issues coupled with the absence of arbitral reference.
This article is authored by Aathira Pillai a 5th year BLS LLB student of Dr. D. Y. Patil College of Law.
For regular updates, join us: