CHAPTER - 7:- INFRINGEMENT OF CINEMATOGRAPHIC

FILM AND JUDICIAL CONTROL.

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 "Cinematograph film" means any work of visual recording
on any medium produced through a process from which a
moving image may be produced by any means and includes a
sound recording accompanying such visual recording and
"cinematograph" shall be construed as including any work
produced by any process analogous to cinematography including
video films.173
A cinematography film is ordinarily based on literary,
dramatic, musical or artistic work in which copyright may
subsist. One has to see whether the film infringes the copyright
in other works in the context of the exception to infringement is
listed in s. 52 (1). Thus if the use of the copyright work in the
film is only for fair dealing for the purpose of research or private
study or criticism or review, or for reporting current events, it
will not constitute infringement. Again the inclusion in a film of
any artistic work permanently situate in a public has access is
permitted if such inclusion is only by way of background or
otherwise incidental to the film.
In the case of cinematograph film, the author ahs following
rights174 -
(i) To make a copy of the film, including a photograph of any
image forming part thereof;
(ii) To sell or give on hire, or offer for sale or hire, any copy of the
film, regardless of whether such copy has been sold or given on
hire on earlier occasions;
(iii) To communicate the film to the public;

173 Section 2 (f)

174 Section 14

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 A cinematograph film is recognized as a separate subject-
matter for copyright protection. The question of infringement of a
film has to be considered in the context of the nature of the
exclusive rights conferred on it. One of the exclusive rights
conferred on the owner of the copyright in a cinematograph film
is the right to make a copy of the film. Video recording of the
film for the purpose of broadcast in television or exhibition of the
matter contained in the film has become common.
“Cinematograph film” includes the sound track, if any, and
“cinematograph” is to be constructed as including any work
produced by any process analogous to cinematography.

There was no reference to Video films’ in the original

definition of ‘cinematograph film’. But the Copyright
(Amendment) Act 1984 added an ‘explanation’ to the definition
given in clause (f) of s. 2 by which for the purposes of the clause
Video films’ and video taping of cinematograph film will
constitute infringement of the copyright in the film. Showing
video films over Cable TV network, to subscriber’s, amounts to
infringement of copyright in the film by broadcasting or
communicating it to a section of the public.175

The question whether a cinematograph film is an

infringement of the copyright in another film depends upon the
circumstances. Much will depend upon whether the plot, Story,
and characters are taken from a copyrighted work or from the
public domain, the extent of the similarity and whether the
labour and effort bestowed upon one film has been appropriated
by the producer of another film. A copy of the film or a sound
recording embodying the same sound recording in any part of
the sound track associated with the film is an infringing copy of

175 Ibid pg 49

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the film. This includes a copy imported in contravention of the
Act.
The rights in case of a cinematograph film & its various
categories:
(1) Theatrical rights i.e. right to exhibit the cinematograph film
in theatre;
(2) Terrestrial television broadcasting rights, i.e. right to
exhibit the film on terrestrial television e.g. Doordarshan;
(3) Satellite broadcasting right, i.e. the right to
exhibit \ communicate the film by satellite signals to the public
with or without cable and through the satellite medium;
(4) Cable TV right, i.e. the right to exhibit the film by a cable
originated programme.176
1. Copyright in cinematographic film.
The courts in India while granting protection to the
cinematographic work have considered the following work to be
the work of cinematographic film. The works are,
Live events, video films, videotaping of films,
cinematographic film of a stage play, single frame of a film, TV
serials are the works which have been protected by the judiciary
in Indian Scenario.
2. Role of judiciary in protection of copyright in a
cinematographic film.
The judiciary while considering the aspect of copyright
infringement in a cinematographic film, have interpreted the
words in a manner which accords protection to a

176 Video Master V/S Nishi Productions ( 1998) PTC 117 ( Bom.)
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cinematographic film, the following concept have been given a
wide meaning,
Cinematographic film infringing other works, reproduction
in a different medium, infringement of other films, further
episodes of a TV serials yet to be produced, right to TV serials
episodes, possession of video cassettes for exhibition, hire or
sale, infringement of a copyright in a cinematographic film
through telecast without consent, and finally the tort of
conversion.
A cinematography film is ordinarily based on literary,
dramatic, musical or artistic work in which copyright may
subsist. One has to see whether the film infringes the copyright
in other works in the context of the exception to infringement is
listed in s. 52 (1). Thus if the use of the copyright work in the
film is only for fair dealing for the purpose of research or private
study or criticism or review, or for reporting current events, it
will not constitute infringement. Again the inclusion in a film of
any artistic work permanently situate in a public has access is
permitted if such inclusion is only by way of background or
otherwise incidental to the film.
Live events
A cinematograph film depicting live events like sporting
events, horse race, cannot infringe any copyright because there
is no copyright in live events.
Video films
A cinematograph film is recognized as a separate subject-
matter for copyright protection. The question of infringement of a
film has to be considered in the context of the nature of the
exclusive rights conferred on it. One of the exclusive rights
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conferred on the owner of the copyright in a cinematograph film
is the right to make a copy of the film. Video recording of the
film for the purpose of broadcast in television or exhibition of the
matter contained in the film has become common,
“Cinematograph film” includes the sound track, if any, and
“cinematograph” is to be constructed as including any work
produced by any process analogous to cinematography. There
was no reference to Video films’ in the original definition of
‘cinematograph film’. But the Copyright(Amendment) Act 1984
added an ‘explanation’ to the definition c 1. (f) of s. 2 by which for
the purposes of the clause Video films’ and video taping of
cinematograph film will constitute infringement of the copyright
in the film. Showing video films, over Cable TV network, to
subscriber’s, amounts to infringement of copyright in the film by
broadcasting or communicating it to a section of the public.177
Exploitation of cinematograph films
The expressions “exploitation” of a film in an agreement
would take in all scientific and technological devices that may be
invented in future including internet and satellite telecast. Thus
satellite television of the film by some other party would be
violative of the terms of agreements.178
Videotaping of film
There was considerable doubt as to whether videotaping of
a film would constitute infringement of the copyright in a
cinematograph film. This has been settled by the copyright
(Amendment) Act 1984 by which a video film is deemed to be a
cinematograph film. Playing a videotape may therefore now be
considered as causing a film in so far as it consist as visual
177 Ibid pg 49
178 Mangalal Savani v Rupam Pictures AIR 2000 Bom 410; (2000) PTC 556(Bom).

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images to be shown in public broadcast means to communicate
to the public by means of wireless whether in any one or more of
the forms of signs, sounds of visuals images or by wire.
Accordingly playing a video film in public would constitute
infringement of the film. Since the sound track is a material part
of a film if in a videotape or film the sound track is recorded the
video film would constitute infringement of the film.
A videotape of a film will be considered as a copy of the film
as it can be used to cause the film to be in public. The Act does
not provide any exception to in infringement of a cinematograph
film as in the case of other work. A cinematograph film except in
the case of live performances like sporting events or other public
events, naturally events etc. is ordinarily based on some literary,
dramatic, musical or artistic work in which copyright may
subsists hence the producer of a film must obtain license from
the copyright owners of such work for the production of the film
based on such work because making a cinematography film in
respect of such work is the exclusive right of the copyright owner
of the work. Section 52 (1) (y) provides that after the expiration
of the term of the copyright in the film exhibition of the film is
permitted even though the copyright in the literary etc. Work on
which it is based has not expired.
Cinematograph film infringing other works
If a cinematograph film is based on a copyrighted literary
or musical work without a license from the owner of the
copyright then it is an infringement of the original work. Such a
film will not be entitled to copyright.179 A film in which the

179 Gama Prasad V/S Nabhash Goswami AIR 1967 A&N 70

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sound track produces a copyrighted musical work is an
infringement of the copyright in the musical work.
Reproduction in a different medium
There is no copyright in a mere plot. In considering
whether a film is an infringement of copyright in a novel the
proper inquiry is whether keeping in view the idea and general
effect created by a perusal of the novel, such a degree of
similarity is attained as would lead one to say that the film is a
reproduction of incidence described in the novel or of a
substantial part thereof. The film must either use in its
captions a substantial part of the words of the plaintiffs work; or
must use in its pictures a substantial part of a dramatic
incidence represented, a colourable imitation of them.
Infringement of other films
The question whether a cinematograph film is an
infringement of the copyright in another film depends upon the
circumstances. Much will depend upon whether the plot, Story
and characters are taken from a copyrighted work or from the
public domain, the extent of the similarity and whether the
labour and effort bestowed upon one film has been appropriated
by the producer of another film.
A copy of the film or a sound recording embodying the
same sound recording in any part of the sound track associated
with the film is an infringing copy of the film. This includes a
copy imported in contravention of the Act. Any copy which
contemplates in a sound recording bearing a reproduction
thereof shall mean infringement of other films.

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Cinematograph film of a stage play
The owner of the copyright in a dramatic work has the
exclusive rights to make any cinematograph film or a record in
respect of the same or of a translation in any language or of an
adaptation of the work. A clever film producer may take the
central ideas from the work and make such alteration in the
scenario, story, plot and incidents in making the film so as not to
infringe the copyright. The case of R.G. Anand v Delux Films180 is
an excellent illustration of the difficulties involved in establishing
that a cinematograph film is an infringement of the dramatic
work.

Single frame of a film

Reprinting individual pictures from the film as still pictures
is an infringement of the copyright in the film. A photograph
made from a single frame of a cinematograph film has no
protection in copyright, being neither photograph nor
cinematograph film as defined in the Act. See s. 2(s).

TV serial
Where a TV serial of certain number of episodes written by
one author was extended by further episodes written by another
author with the same theme and telecast under the same name,
the question whether the extended episodes is an infringement of
the copyright in the first set of episodes depends on whether the
viewers of the extended episodes of the serial have got the
impression that the subsequent episodes are a continuation of
the original episodes which can be decided only by evidence to
be adduced before the trial court. Injunction may however be

180 Ibid AIR 1978 SC 1613

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granted restraining the use of the name of the author of the first
series as the author of the extended series.
The question whether any episode has been distorted
amounting to violation of the author’s special rights under s. 57
is a matter which can be established only by evidence as to how
exactly there was distortion, mutilation or other modification of
the work.
Further episodes yet to be produced

In an agreement of assignment of copyright in a TV serial

India Most Wanted’ comprising episodes already produced and
further episodes yet to be produced the agreement was held to
be incapable of performance for want of definite or specific
details of scripts, concept or story given in the agreement.
Interim injunction restraining the telecast of TV serials by the
producer was refused.181
Right to TV serial episodes

Where the serial is not produced by the respondents as

agents of appellants and for valuable consideration at the
instance of the appellants, the appellants claim under s. 17 of
the Copyright Act is liable to be dismissed.182
Possession of video cassettes for exhibition, hire or sale

If the particulars on video films etc. as mandated under s.

52A do not find place, it would be infringement of copyright in
the original cinematograph film. It would therefore be necessary
for the prosecution to track on and trace out the owner of the
copyright to come and adduce evidence of infringement of

181 Zee Telefilm Ltd. v Asia Producers (2000) PTC 382 (Bom).
182 Vicco Laboratories V/S Art Commercial Advertising ( Pvt) Ltd. 2001 PTC 687 (
SC)

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copyright. The absence thereof also does not constitute lack of
essential element of infringement of copyright.183
Video cassettes seized by police containing copies of films
without licence.
It is not necessaiy to know the owner of the films to punish
the defendant. If the particulars on video film etc. as mandated
under s.52A do not find a place it would be infringement of
copyright.184
Infringement of copyright in cinematographic film through
telecast without consent or licence.
The plaintiffs Swati films who were engaged in the business
of purchasing, selling, licensing and exhibiting cinematographic
films sued the defendants for infringement of copyright in certain
films by telecasting them through satellite transmission without
consent or licence from the plaintiffs who were the owners of the
copyright in the films. They also claimed damage of over 25
lakhs. Interim injunction was granted restraining the defendants
from telecasting the films and from releasing the payments to
any person for the telecast already made of two films.185
Ephemeral recording- S. 52(1 )(z)
Making of ephemeral recording for satellite broadcasting,
preparation for broadcast and recording of Betachain cassette to
enable the broadcast, all copying for the purpose of broadcast,
does not infringe the right of person enjoying the right to exhibit
the film by Cable TV.
A new sensation will be created by the digitization of cable
TV and the satellite programmes, as the cable TV operator and

183 State of Andhra pradesh V/S Nagoti Venkatramanna ( 1996) PTC 634 ( SC)
Ibid
185 Swati Films v National Film Development Corporation (NFDC) (1991) AIPC No. 4,
at p. xviii (Del HC).
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the producer of such satellite boxes are making an arrangement
in the box itself that any programme being exhibited on the cable
TV, including a movie, music, episode or exhibiting a live
programme of a cricket match or of any event can be easily
copied by way of the fixed mechanism setup in the digital cable
box and therefore ephemeral recording of the satellite
broadcasting would lead to create a new problem in the domain
of cinematography film and will lead to the infringement of
copyright in a cinematographic film.
Tort of conversion
In a broadcast of programme by TV channels, the blanking
out of a portion of a programme by Cable TV network operators
and substituting their own advertisements during the time
amounts to conversion. This is also a breach of contract.186
The role of judiciary in protecting a work of
cinematograph film:
The author of a cinematograph work can claim a variety of
rights including a right to exhibit the cinematographic work in
theater, a right to exhibit the cinematograph work on cable TV, a
right to satellite broadcasting of such cinematograph work and
right of publication of such cinematographic work on a cable TV.
Therefore any person not being the author in does so shall be
said as infringer of the cinematographic work, the judiciary shall
have regard towards the rights conferred in the cinematographic
work and shall accord the protection for it.

186 Ambeince Space Sellers Ltd. V/S Asia Industrial Technology ( 1998) PTC 232
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