Creativity, Authorship And Ownership Of Copyright In Cinematographic Films: Balancing Creative Rights And Commercial Interests In India.

Introduction : The Indian law secured the producer as the only author and initial owner of a cinematographic film under the copyright act of 1957. In the past, this legislative position was based on fair public policy. Due to the nature of film-making, which is a very volatile and capital-intensive business, the law naturally aimed to secure the investor who bore the financial risk of massive proportions of funding the project, facilitating the logistics, and putting the crew together. This legal system has been mostly unchallenged in almost the last seven decades, leaving the producer at the very top of the ownership ladder.

But when we take a critical review of the modern intellectual property law, a very obvious dislocation is revealed, between this very strict statutory framework and the real process of creativity. A movie is basically the work of a collective creativity that depends solely on the unison of the genius of directors, scriptwriters, lyricists, musicians, and technicians. However, with this huge collective contribution, these individual artists are deprived of their ownership the second the project is over and given exclusive rights over the end product to one economical force.

This 1957 paradigm is now under the pressure of fast technological changes like never before.We are out of the time when we were content with one-time theatrical releases. The burst of satellite television and OTT services such as Netflix and Amazon Prime have entirely transformed the way movies are monetized, making movies and their soundtrack components sources of recurring revenue that can continue over decades. Among these sweeping transformations in digital consumption, we must pose an urgent legal query; is it still just that producers are able to monopolize these continued profits, or is it time to reform our copyright laws to allow creators that have provided their creative input to be fairly remunerated.

Research Problem and Scope

The overall tension that the story discussed in this paper is relatively simple: Indian law, in providing the producer with a near-complete ownership in a copyright of a movie, has left writers, composers, lyricists and directors with no legal remedy when they have signed over their rights out of contract. The research question is whether this arrangement is still justifiable in the contemporary creative and commercial environment.

The paper follows the statutory framework, discusses the judicial interpretations and application over the years, evaluates the legislative interventions as brought under the Copyright Amendment Act of 2012 and the assessment of whether the legal framework has truly shifted to a fair balance - or whether it still remains a way of giving commercial priorities, neglecting creative recognition. Another issue discussed in the paper is the problem of gaps in enforcement in the digital age and suggests the paths of the reform.

Research Question

The overriding question that guides this paper can be presented as follows:

Does the existing legal regime under Copyright Act, 1957, as amended in 2012 strike a truly fair balance to commercial interests of the film producers and the copyright rights of individual authors and, in the event it does not, what reforms are needed to rectify the imbalance?

Such a question is not abstract but a product of concrete and ongoing injustices, which writers are subjected to in the Indian film industry. Lyricists, whose words make a generation, composers, whose music is listened to by a million people every year, directors, whose vision of aesthetics makes a film what it is, all of these people are working in a legal environment, which systematically prioritizes the financial entrepreneur over the creative contributor. The question that this paper aims to answer is whether this represents a justifiable policy decision, or an excessively old-fashioned legislative assumption that no longer has any legitimate rationale.

Problem Statement

The key problem is that the Indian copyright law considers the financial investor, the producer, as the sole author and owner of a movie and leaves real creators such as directors and writers in the status of powerlessness. This is further compounded with industry contracts which compel creators to sign away their rights only to be employed. In 2012, this was attempted to be fixed with the inclusion of an amendment to ensure that musicians and lyricists were entitled to receive continuing royalties. But such a solution has not proven successful in the real world. These protections have been curtailed by the courts, and the law does not have the ability to follow through on royalties of the contemporary streaming (OTT) services. The point is, however, not that creators do not have the rights on paper, but that they cannot work in practice because of exploitative contracts, limiting court decisions, and a system that is outdated and fails to deal with the digital era.

Scope of the Study

The paper is a critical analysis of the Indian copyright system in the cinematographic films with special attention to the allocation of rights between producers, directors, scriptwriters, music composers, and lyricists. The study assesses the Copyright Act, 1957, the changes that have been implemented under the 2012 Amendment and the ensuing legal precedents that have influenced their usage. In order to offer a larger context, this work carries out a comparative analysis through the copyright regime in the United Kingdom and France, and global standards set by the WIPO Performances and Phonograms Treaty (WPPT). It is confined to copyright in human directed films with no reference given to the other ancillary questions related to trademark protection of film titles, the neighboring right of broadcasters, and the new copyright question of artificial intelligence in films.

Review of Literature

Paul Goldstein – “International Copyright: Principles, Law and Practice” (Oxford University Press, 2001)

The work by Goldstein gives a comparative and global outlook on the ownership of copyright in a collaborative work. As described in the book, various jurisdictions have diverse ways of defining authorship in films in the field of cinematography. Certain countries consider movies to be collaborative and a number of contributors can share authorship whereas others identify the producers to be the main owners since they provide funds and oversee the production process. Goldstein highlights that the form of copyright ownership of films carries more economic and policy implications in the creative industries. According to his analysis, there are two goals of the copyright law: providing incentives to creative expression and providing incentives to commercial exploitation. This comparative approach proves to be significant in the context of comprehending how the national copyright system and the Indian one in particular have conditioned the legal position of the authors and producers of the works in cinematography.

W.R. Cornish – “Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights” (Sweet & Maxwell, London, various editions including 2010)

The work of Cornish is a pioneering piece in the intellectual property law that sets out a general theoretical backbone in the interpretation of copyright ownership. As explained in the book, the copyright law used to associate the authorship with the creator of the piece but appreciates the fact that some industries such as film and broadcasting industries are in need of alternative ownership models because of the collective nature of production. Cornish believes that copyright regimes tend to attribute ownership to the organizing and funding group of the creative process, and not to the individual contributors. The author points out that this model will guarantee effective management and commercial exploitation of intricate works like movies. He however also points out that through arrangements such as these the recognition and economic involvement of individual creators can be weakened. This overall theoretical view is the foundation of subsequent literature that analyses the film industry and the trade-off of creative and commercial interests.

Royalties and Rights Sharing in Film Industry in India Post Copyright Amendment Act 2012 – Impact on Contractual Freedom: A Comparative Study with the US and the UK Copyright Regimes, SSRN by Arul George Scaria, 2013

The paper offers a detailed comparative analysis and expresses the idea that the Section 17 proviso transformed the dynamics of power relationships as the use of the statutory right to a non-film exploitation (radio, TV, streaming) was granted to lyricists and composers, and such use could not be transferred by heirs. It challenges holdings of courts as early as 2012 such as Indian Performing Right Society v. Performers were absorbed by Eastern India Motion Pictures that vested such rights in films, unlike India which had adopted a performer-oriented approach as compared to work-for-hire in the US (favored to the employer) and equitable pay in the UK. The amendment is claimed to restrain exploitative all rights contracts, increase creator revenues in times of digital booms (e.g., OTT), but poses a challenge of enforcement through rights societies such as IPRS, which are recommended to harmonize to promote sustainable growth in the industry.

Dev Gangjee – “The Changing Landscape of Copyright in the Digital Era” (Published in the Journal of Intellectual Property Law & Practice, Oxford University Press, 2016)

The work by Gangjee looks at how the digital technologies and online distribution medium have altered the governance of copyright. The article claims that the advent of streamlined platforms, online music portals, and international licensing systems have created a great enhancement to the commercial worth of the cinematographic work. Nonetheless, these changes have also brought out vulnerabilities in conventional system of copyright especially in royalty dispensation. Gangjee stresses that the copyright policy of the era should be adjusted to the characters of the digital exploitation to provide just compensation to creators and retain the motivation of producers and investors.

Copyright Laws and Their Impact in Indian Film Industry, IJCRT by School of Law, Christ University, 2024.

The producer-driven essence of the 1957 Act is synergized with 2012 improvements in this new IJCRT paper, which reveals that royalty has democratized revenues, showing increased payouts to composers by Spotify /YouTube, and that performer rights are enforced under Section 30A-31D. It discusses the effects of the industry such as less litigation over music rights and more overseas partnerships, but reports that there are still more problems such as non-compliance in local movies. The paper suggests holistic solutions, which start with moral rights (Section 57) to preserve creativity and introduces the law as a growing system that balances commerce with artistic equity to a streaming post-pandemic world.

The Statutory Framework

How the Law Defines Authorship and Ownership

The Copyright Act, 1957 gives cinematographic films a complicated system of protection. Section 13(1) acknowledges independent copyright on original works of literature, drama, music and art, and at the same time safeguards derivative copyright material, such as films and sound recordings. Therefore, the underlying components of a movie, which include a script, background music, and lyrics, are theoretically safeguard as a separate piece of art on top of the ultimate visual creation.

Section 2(f) of the Act has been updated to meet the new technological changes with a very broad definition of the term cinematographer film as a visual recording that is capable of creating a moving image and that includes all forms of visual recordings, whether traditional celluloid or digital streaming. This wide definition is accompanied by Section 14(d), which provides the owner of the copyright with the broad bundle of exclusive economic rights, which encompass practically every way of commercial exploitation of the present-day world. These commercial rights require that the owner should be the sole one able to:

1. Copy the movie physically or digitally.

2. Sell or rent commercially the work.

3. Publicize the movie among the masses through various channels of broadcast.

4. Localize the work to new markets.

5. The Paradox of Authorship and Contradiction Reality.

Although this has been a strong economic structure, there is a severe structural imbalance that is occasioned by the legal definition of authorship. Section 2(d) (v) specifically refers to the producer of a cinematographic film as the author. That is not just a semantic decision; this determines the course of all further rights. Combining this with Section 17, which gives the first title to the author, the law practically gives first title of creative attribution as well as absolute economic title to one commercial person. As soon as production is over, the real creative flow is pushed to a lower legal position directors, writers, composers, and performers.

The dilemma of this framework can best be observed in Section 13(4) which ensures that the copyright of a film does not reduce the independent copyrights of the underlying literary or musical work. Paper-wise, the copyright of his/her separate work rests with the lyricist or composer. The practical effect, however, is that such a statutory protection is regularly nullified by industry standards. Producers are virtually universally obliged to grant these separate rights to the producer by form contracts as a non-negotiable condition of his employment.

The Assignment Regime and the Consequential Practical implications

The assignment of copyright is covered by section 18 and 19 of the Act. An author can also confer his or her copyright completely or in part on another party and this transfer should be in writing and signed by the assignor. The Act gives no substantive restrictions on the range of assignment, and, as a result, composers and lyricists have over the decades habitually sold all rights to their works to film producers on standard-form contracts that left them with little more than their initial fee.

The practical implication of such an assignment regime is that once an author has written a song to a film however iconic it turns the song has no economic relationship with its further exploitation the very moment the assignment is signed. The producer may then license the song to be played in satellite radio, to be streamed, used as a ringtone or sub-license the song internationally and the original author is not entitled to any of the revenues. It was the actual reality of most composers and lyricists in India decades previous to the Amendment of 2012.

Performers, actors, singers and background musicians are slightly more covered by Section 38 which provides them with a few rights over the use of their recorded performances. These rights are limited, they are frequently abandoned by contract, and they contain not a right to any portion of the downstream commercial proceeds of the film. The structure as a whole is that where the overriding legal status of the producer is strengthened not merely by law but also by the contractual culture of the industry that forms around that law.

Judicial Evolution

The Foundational Judgments

The decision of the Supreme Court in the Indian Performing Right Society case of 1977 is the most significant early judicial declaration on copyright over the cinematographic films. According to the composers and lyricists Institute of Prison Singers and Composers (IPRS), composers and lyricists had the right to receive an additional royalty when the film songs were aired in the radio or appeared in other publicly organized performances, even after having been integrated into a motion picture. This was unacceptable by the associations of movie producers who contended that by getting included into a movie, all rights were transferred to the producer.

The producers were decided in favor by the Supreme Court. It believed that when a composer or lyricist transfers his copyright to be incorporated into a film, the producer took all exclusive public performance and broadcast rights in such a work as a part of the film. The copyright that would otherwise have been independent of the composer or lyricist, was, in all practical purposes, swallowed into the copyright of the movie as a whole. IPRS was not able to receive individual royalties on the songs in movies through third-party broadcasters.

This decision had a characteristic impact on the Indian film music industry over the next 30 years. It solidified the power of the producer and created no legal pathway through which composers and lyricists could enjoy the commercial success of their own productions. In a wider sense it set the precedent that the promise of independent copyright by Section 13(4) in underlying works could be destroyed by a mere contractual assignment. The comparison between the international practice was remarkable. In the United Kingdom, France and throughout the European Union, composers and lyricists still enjoyed the right to equitable remuneration on the public performance and broadcasting of their works regardless of any previous assignment to a film producer. The status of India was an outlier, and it was almost forty years long.

The following number discusses the developments surrounding the authorship of the director

The absence of the film director as a legal entity in the Indian copyright law is one of the most outstanding and unaddressed gaps in the current copyright law. Although the director is the creative personality responsible to render the film its artistic character translating a script into visual storytelling, giving the film its practices, deciding camera viewpoints, pacing, and atmosphere, the Indian law gives him no authorship over the film that is created as a cinematographic work. The director is not mentioned in section 2(d) (v).

This issue was introduced to the people through the Raanjhanaa episode. In the instance where some of the film was changed without the consent of the director to be aired on a satellite channel, the director had no legal basis under the Copyright Act to lament against such amendment since his artistic input in the film did not entail any form of legal claim to the copyright. Even a moral rights claim under Section 57, which in any case he could have had, was not possible, because that section only defends the author of a work, and the director was not the legal author of the film.

This stance contradicts the acknowledgement of the creative input of the director by the Berne Convention, and with the legislation of most of the principal film-making states. The Copyright (Amendment) Bill of 2010 had suggested acknowledging the principle director as a joint author but this was later scrapped in the same 2012 Amendment, on the basis directors are not financially risked. This argument is technically sound under the existing framework of the Act, but it makes a massive misjudgment of what creative authorship is about such as to equate financial risk-taking with a creative contribution.

Courts addressing directors have usually found that the director can only bring a claim that will be upheld as to copyright in the independently authored aspects of a film e.g. a screenplay that the director has also authored but not the cinematographic work. This puts the most notable creative input of the director fully at stake, an outcome that does not serve the cause of justice, and does not constitute the true dynamics of film production.

The Copyright (Amendment) Act, 2012

The Inalienable Royalty Right

The Copyright (Amendment) Act, 2012, arrived with a significant intervention of putting the balance between creators and production houses back in place through inalienable royalty right. The amended wording of Section 18(1) which is read along with Section 19(10) specifically prohibits authors of literary or musical works which have been incorporated in a film to waive or assign their right to receive royalty in regard to any other commercial exploitation than the film per Se. This is effectively to ensure that creators such as lyricists and composers are assured unconditional access to fair pay despite the traditional industry buyout deals, when their creations are played or digitally streamed. 

This legislative re-writing was a radical intellectual transformation in the intellectual property law of India, and provided official recognition to the implicit and continuing worth that creative work had, which could not be overcome by a one-time, initial fee. By the continuous economic interest, the amendment in force made the domestic copyright religion in India aligned with the international norms and particularly those, which had been outlined in the WIPO Performances and Phonograms Treaty.

The OTT Dilemma and the Implementation Loophole

The 2012 Amendment in most aspects was ahead of its time. It was passed when the world was starting to change the entertainment with the streaming revolution. Currently, the movie industry and movie music embark on huge incomes under subscription-based over-the-top websites, and the problem of authorial royalty flowing through the bottom of these sites is an issue that the amendment model, notwithstanding its progressive spirit, has failed to address.

The underlying issue is structural. OTT services usually conclude the lump-sum licensing agreements with the film production companies. The right to stream a movie is given to the production company as a flat fee and the whole negotiation is conducted between two business organizations. The lyricist or composer who is the holder of rights to receive royalties under Section 19(10) has no place at such table, no view of how big the deal is, and no means by which his or her portion is automatically calculated or disbursed.

The case of litigation against The IPRS v. Aditya Pandey was a vivid demonstration of this issue. The Supreme Court ruled eventually that the protections of royalty provided by the 2012 Amendment took effect only going forward that is to say that compositions that were assigned prior to 2012 were governed under the prior regime which provided that the rights of the producer were absolute. This excluded a huge majority of the preexisting musical catalogue decades of famous Hindi film songs by the modified provisions. It also established a two-level system, in which new compositions are given royalty rights, but old works are exploitable with no author payment.

The gap is supposed to be filled by the collection societies such as the Indian Performing Rights Society (IPRS) and Phonographic Performance Limited (PPL) which are supposed to collectively license the work. They unite the rights of their members and bargain licences on their behalf and share royalties by formula on the basis of usage data. The judgment of the Bombay High Court, post-2012 Amendment, which left far behind the old Eastern India precedent, was that IPRS could collect royalties not only on musical works in films but equally on the producers of sound recordings. It was a significant post-amendment win of authors, but it is still narrow and is still in court.

Persistent Gaps And The Road To Reform

Moral Rights and Their Limitations

In the Copyright Act, 1957 section 57, author special or moral rights, comprising of the right to paternity (attribution) and the right to integrity (prevention of distortion, mutilation or alteration that is detrimental to his reputation or honor), is statutorily embedded. The legal force of this was clearly demonstrated by the landmark case of Mannu Bhandari by the Delhi High Court. The Court, in this case, determined that a film producer who made a significant and unauthorized change to a writers story in the process of adapting it to the screen had violated the moral rights of the author, which clearly outlined that statutory protection under Section 57 of the rights of the author still remains intact despite the fact that economic rights have already been assigned to the author.

The decision not only affirmed a vital principle but also that a creative dignity has a legal aspect that does not depend upon economic rights and that, even in cases in which the right has been assigned in a contract, it remains alive. But the effect of Section 57 is not practical in the film. The director and the majority of other contributors are not legally considered to be authors under the Act, which means that they cannot invoke the moral rights at all. A director whose film has been colorized, re-edited and changed to stream cannot invoke the protection of Section 57 - since the law does not acknowledge them to have an authorial interest in the film in the first place.

This is a gaping contradiction. In case moral rights are supposed to ensure the integrity of creative expression, and a director is recognized, even unofficially, as the main creative author of a film, the omission of directors in protection of moral rights essentially defeats the intention of the provision. This area is one where reform cannot be desired and it cannot be avoided.

Moving towards a Consistent and Implementable Framework

The way forward to the Indian copyright law in this field has three different yet related issues to consider. To begin with, the issue of authorship of directors should be reopened. The claim that directorial personnel are not financially risky is technically true but it is that it confuses a couple of completely different standards entrepreneurial participation and authorship. The copyright law was all about safeguarding the expression of creativity and a reform that acknowledges the main director as the co-author of the cinematographic film would bring India close to both the global norms and the reality of the creative practice.

Second, the armature of authorial royalties in the online society should be substantially reinforced. The right developed by the Amendment of 2012 was a right in statute, however, rights with no working enforcement provisions are more of an academic measure. An obligatory royalty reporting system of OTT services, where they are required to break down what defines the computation of the licensing fees and also give a specified share to the collecting communities to be shared among the authors, would turn the pledge of the amendment into action.

Third, the perpetuated application of the standard-form assignment contracts that effectively undermine the protection of the 2012 Amendment by means of cleverly drafted contracts must be refuted. The Copyright Office and the courts must both be more aggressive in challenging contractual provisions that seek to describe the inalienable royalty right as waived or excluded and Parliament needs to look at enacting obligatory solutions in assignment contracts that retain royalty rights in inalienable terms.

Conclusion

The producer-centered approach of 1957 has long since given place to the Indian copyright law on cinematographic films. The film authorship has been refined in this way over time by the courts, and the Amendment of 2012 provided the creative artists involved in the film making industry with worthwhile statutory safeguards. However, the path to a truly balanced framework is indeed not over yet.

The very root of the issue is that the law still regards the film as more of a commercial product than a creative one, and it attributes the legal authorship thereof. As long as the producer as financial entrepreneur is the only legal author of the film, the interests of the directors, writers, and composers, and also performers will be structurally subjected. In the 2012 Amendment, significant advances were achieved in protecting authorial royalties, however it has since been invalidated in part by court interpretation, and industry contractual practice.

The conceptual change that Indian copyright law needs is that which is based on the requirement of having a model where the question is not who invested the money. to one who seeks to question the workman who created it? These questions frequently will overlap, and a co-authorship system that acknowledges both the commercial input of the producer and the creative impetus of the director is fully practical as the experience of other jurisdictions has shown. The safeguarding of creative rights and commercial interests is not a zero-sum game, may in fact, be the only circumstance in which the industry and art form in question can survive and thrive mutually.

Author: Sakshi Dubey in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney