dispute resolution ent law

CERTIFICATE COURSE ON ENTERTAINMENT LAW

VARIOUS ISSUES AND MECHANISMS FOR

SETTLEMENT OF DISPUTES IN THE ENTERTAINMENT INDUSTRY

ISSUES/ DISPUTE

DISPUTES

• SCRIPTS

• MUSIC

• TRADEMARKS

• SCENES

• OTHERS…..

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• FAIR USE/ FAIR DEALING

• COPYRIGHT INFRINGEMENT

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FAIR DEALING

• SECTION 52 COPYRIGHT ACT

• General statutory exceptions

-Private study, research,criticism and review, reportingcurrent events

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CONCEPT OF FAIR USE

• ORIGINATED IN THE UNITED STATES • FAIR DEALING AND FAIR USE - The difference is

however not limited to the nomenclature alone.While US follows a broad based, case by caseanalysis of defined parameters approach, UK andIndia follow a system of non-exhaustive, yet acomprehensive listing of instances of fair dealingin their copyright statutes.

• Courts in India have over the years not limitedthemselves to fair use assessment based only onthe codified instances of fair dealing.

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FAIR USE DEFENCE

• PURPOSE AND CHARACTER OF USE

• NATURE OF THE WORK

• AMOUNT OF SUBSTANITALITY OF THEPORTION USED

• EFFECT OF THE USE UPON THE POTENTIALMARKET

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TESTS - COPYRIGHT INFRINGEMENT

• “Abstraction-filtration-comparison” test.

• First, at the abstraction step, the ideas (which are notprotected by copyright) are separated from theexpression of the idea (which is subject to copyrightprotection). Second, unprotectable elements (such asmaterial that is in the public domain or otherwiseunoriginal, or subject to the doctrines of merger andscenes à faire) are filtered out. Finally, the remainingprotected elements in the original work are comparedto the allegedly infringing work to determine if the twoworks are substantially similar.

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TESTS - COPYRIGHT INFRINGEMENT

• ACCESS

• SUBSTANTIAL SIMILARITY

QUANTITATE AND QUALITATIVE

EXTRENSIC AND INTRENSIC

• COGENT AND COHERENT EVIDENCE

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QUANTITATE AND QUALITATIVE

• The quantitative component addresses theamount of the copyrighted work that iscopied, while the qualitative componentaddresses the copying of protectedexpression, as opposed to unprotected ideasor facts.

• The quantitative analysis of two works mustalways occur in the shadow of theirqualitative nature.

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EXTRENSIC AND INTRENSIC

• KROFFT TEST

• Application of the extrinsic test to analyzewhether a movie is substantially similar to ascript requires a court to compare the plot,theme, dialogue, mood, setting, pace, sequenceof events, and characters of the two works

• The intrinsic test is subjective and is based onthe response of the ordinary reasonableaudience to the look and feel of the two works.

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R.G Anand vs M/S. Delux Films & Ors 1978 AIR 1613

• On a careful consideration and elucidation of the various authorities and the caselaw on the subject discussed above, the following propositions emerge:

• There can be no copyright in an idea, subject matter, themes, plots or historicalor legendary facts and violation of the copyright in such cases is confined to theform, manner and arrangement and expression of the idea by the author of thecopyright work.

• Where the same idea is being developed in a different manner, it is manifestthat the source being common, similarities are bound to occur. In such a case thecourts should determine whether or not the similarities are on fundamental orsubstantial aspects of the mode of expression adopted in the copyrighted work.If the defendants work is nothing but a literal imitation of the copyrighted workwith some variations here and there it would amount to violation of thecopyright. In other words, in order to be actionable the copy must be asubstantial and material one which at once leads to the conclusion that thedefendant is guilty of an act of piracy.

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• On a careful consideration and elucidation ofthe various authorities and the case law on thesubject discussed above, the followingpropositions emerge:

• There can be no copyright in an idea, subjectmatter, themes, plots or historical or legendaryfacts and violation of the copyright in such casesis confined to the form, manner andarrangement and expression of the idea by theauthor of the copyright work.

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• Where the same idea is being developed in a differentmanner, it is manifest that the source being common,similarities are bound to occur. In such a case thecourts should determine whether or not thesimilarities are on fundamental or substantial aspectsof the mode of expression adopted in the copyrightedwork. If the defendants work is nothing but a literalimitation of the copyrighted work with somevariations here and there it would amount toviolation of the copyright. In other words, in order tobe actionable the copy must be a substantial andmaterial one which at once leads to the conclusionthat the defendant is guilty of an act of piracy.

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• One of the surest and the safest test to determinewhether or not there has been a violation ofcopyright is to seeing the reader, spectator or theviewer after having read or seen both the works isclearly of the opinion and gets an unmistakableimpression that the subsequent work appears to be acopy of the original.

• Where the theme is the same but is presented andtreated differently so that the subsequent workbecomes a completely new work, no question ofviolation of copyright arises.



• Where however apart from the similaritiesappearing in the two works there are alsomaterial and broad dissimilarities whichnegative the intention to copy the original andthe coincidences appearing in the two works areclearly incidental no infringement of thecopyright comes into existence.

• As a violation of copyright amounts to an act ofpiracy it must be proved by clear and cogentevidence after applying the various tests laiddown by the case law discussed above.

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COPYRIGHT/ MORAL RIGHTS VIOLATION??

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MORAL RIGHTS VIOLATION

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“It shall be obligatory on the part of the Producer to accord credit to the author in the rolling credits of any audio-visual moving image software (of any format or form in any media or medium) produced by the Producer in terms of the exercise and execution of the Rights granted as under:

“Based on The Novel

Five Point Someone

By

Chetan Bhagat”

REMEDIES

• CHAPTER XII – CIVIL REMEDIES• Ex-parte injunctions (injunctions that are granted

even without hearing the other party)• John Doe Orders (Issued against anonymous

offenders; E.g Mirabhai Films got a John Doe Order against all cable operators before the release of Monsoon Wedding)

• Anton Piller Orders ( Search and seizure orders) including breaking down doors of shops which are closed

• CHAPER XIII - OFFENCES


PIRACY

• JOHN DOE ORDERS

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MECHANISMS

• MEDIATION

• COURTS

• ARBITRATION

• FILM WRITERS ASSOCIATION

• PRODUCERS GUILD

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READING MATERIAL

• WWW.SINAPSEBLOG.COM

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http://www.sinapseblog.com/

Thank You

Contact Us:

Sharada Kalamadi

Associate Partner - BananaIP Counsels

Email: [email protected]

dispute resolution ent law

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