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Protecting Intellectual Property in Media And Entertainment

India is a member nation to many international agreements, covenants, treaties that regulate intellectual property protection across the globe. Indian Media and Broadcasting Industry protects its valuable IP rights through prominent statutes like the Copyright Act, 1957, and the Trademarks Act, 1999.

The key issues relating to broadcasting rights and media rights are:
  • novel content.
  • rights of the owner.
  • remedies for infringement.
  • just use and remedies or defenses.
  • broadcasting, moral and performance rights; and
  • border controls to prevent infringing copies and materials from entering the country.
Because India is a party to the Berne Convention and the Agreement on Trade-Related Aspects of IPR, protection of copyright is extraterritorial. In India, copyright registration is not required to obtain protection. In addition, common law rights such as personality and commercial rights are protected by courts.[1]

Role of Copyright Law

As per the Section 14 of the Copyright Act of 1957, the term 'copyright' is described and reiterated as "the exclusive right which the owner has over his material or work. It also includes the authority to do or authorize any other person the doing of particular tasks in a work." Copyright protects literary, music, dramatic, and artistic works for example poetry, publications, films, and songs.

Due to the obvious and severe competition in the entertainment industry, it is now more important than ever to protect the original material of the person who created it, against copying. But in our country, however, registration for copyright is not required to gain protection, although it does make it even simple for the petitioner to seek a quick resolution in the scenario of a legal disagreement.[2]

Copyright is a legal framework that allows the media and entertainment industries to protect creative works over which the proprietor has sole ownership. The extent of copyright protection, on the other hand, cannot be limited to just a concept. To benefit from copyright law, the work should be embodied in a tangible medium. The replica should be significant and not minor to be held accountable for infringement in court. Finally, there would be no violation or copyright violation if the themes of the two works were the same but presented in different ways.[3]

Owing to the unavailability of copyrighted work, the person or creator who has committed time and energy into generating the material experiences a major loss. Copyright registration has become a necessity today since infringement of copyright is so frequent. In the case of infringement, previous decisions show that registration is essential in order to execute civil and criminal penalties.

In the landmark case of Dhiraj Dharamdas v. M/s Sonal Info Systems Pvt Ltd[4], the Bombay High Court propounded that making a person liable for infringement or ascribing by him, whether it is done with intention or without that would be considered irrational or ridiculous unless the person who infringed is aware of the fact that the creator or the owner of the work has registered his content/material or work under Section 44[5] before he had infringed it.

Role of Trademark Law

Trademarks are symbols, expressions or signs used to differentiate one person's goods or services from those of another. Subject to specific restrictions, the Trademark Act of 1999 protects the name of the films, song names, pictures, albums of musicians and renowned characters. The title must be distinctive and creative; otherwise, if it is generic in character, it is unlikely to be protected.

The entertainment sector is heavily reliant on trademarks. Movie studios utilize trademarks to build a unique image and to be distinguished out in the marketplace. Despite the fact that the film industry is not immune to legal concerns including identical or confusingly similar album titles, illegal use of picture names, and passing off, the Trademark Law contains recourse for infringement of trademark.

Celebrity Rights

Celebrity rights are an important part of the entertainment industry, and such rights form a huge part in it. Celebrities have the right to capitalize on their celebrity status and profit from it. They commonly give their voices and become a part of advertising and non-commercial organizations, main reason being gaining of profit, but there have been countless examples where the celebrity's identity has been used without their approval, exposing the concerns about privacy and abuse they face in return for financial allowances.

Different international treaties, such as the Universal Declaration of Human Rights, have acknowledged these rights. Furthermore, in India, copyright and trademark play an important role in acting as a shield and guard for the protection of celebrity rights.[6]

However, the term "celebrity" is not explained in the Copyright Act, it can be protected under Section 38 of the Act, which grants a performer's right to any performer for a period of fifty years in respect to his performance. According to Section 39 of the same Act, anybody who records a performance without the permission of the performer is committing a violation of the performer's rights. Courts have made significant judgements regarding celebrity rights on several occasions.

Photographs, publications, and any adaption involving a celebrity are protected under copyright. The protection has also been extended to fictional characters by the court. It should be emphasized, however, that the name or image of a celebrity in India is not protected by copyright.

Merchandizing

Character merchandising, which arises from the promotion or amplification of the characters based on a film, is one way to earn supplementary money outside of theatres. Because of its commercial interest and the large sums of money that may be made, this is garnering appeal in our country.

Due to the enormous extent of the sector, the current intellectual property restrictions may not even be adequate to safeguard the entire legality or susceptibility of character merchandising. However, trademark law protects the character's image, while copyright law protects the creator's work.

In DM entertainment v. Baby Gift House (2010)[7], the Delhi High Court issued an injunction against a third party for selling dolls like a renowned popstar without his consent or permission, noting the possibility of buyers being deceived.

Legal framework governing media and broadcasting under Intellectual Property Laws

The media sector is protected by copyright, patents, and trademarks. Copyright ensures the recognition of artists' rights as well as protection against content infringement. The primary characters in a film, as well as the film titles and other relevant components, are protected by trademark. IP rights are being violated, trademarks are being infringed, and copyright is being infringed as the media business grows.[8]

Copyright is defined in Section 14 of the Copyright Act of 1957 as the right granted to do or authorize the doing of a work. If a person's own work is infringed in India, the person who infringed will be prosecuted under section 63 of the Copyright Act, 1957. If a civil case is pending, the criminal court will not be able to decide on copyright infringement. The Bombay High Court concluded that the infringer's behavior would be absurd if he attributed infringement without knowing that the copyright owner had registered under section 44 of the Act.

Broadcasting rights, internet streaming and statutory licensing

The "broadcast reproduction right," which is distinct from the copyright that belongs to the creator or owner of the work being broadcast, is granted to broadcasting corporations under Sec. 37 of the Copyright Act. The right lasts for a quarter-century. In Asia Industrial Technologies v Ambience Space Sellers[9], the Bombay High Court ruled in 1997 that broadcasting corporations can use this privilege even if they are not domiciled in India, as long as the transmission is accessible in India.

The right entitles a broadcaster to prevent others from engaging in the following with respect to the broadcast of a program or a substantial part thereof:
  • re-broadcasting.
  • disseminating a broadcast without authorization in exchange for payment; and
  • making unauthorized sound or visual recordings of the broadcast or reproducing, selling, or renting such recordings[10]
Although 'broadcasting' is explained as 'communication to the public,' the Copyright Law does not define a broadcasting organization:
"By any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire.[11]"

Under Section 31D of the Copyright Act, broadcasting organizations can ask the Intellectual Property Appellate Board:

A specialist body for IP rights problems:
To determine legal payments for literature and musical works, along with sound recordings. The organization must pay the copyright owner royalties at the price authorized by the board. The sentence uses the terms 'radio broadcast' and 'television broadcasting.' When Section 31D was added to the statute in 2013, lawmakers were well conscious of the Internet as a medium of material exchange.

The question of whether internet streaming services qualify as broadcasters has recently been debated in the courts. The High Court of Bombay answered the question in Tips v Wynk[12] in 2019, keeping in mind the act's statutory license system.

It was ruled that because Section 31D solely applies to the broadcasters on radio and TVs, online streaming services cannot benefit from the statutory licensing scheme. The omission of any reference of the Internet in the provision was interpreted by the court as a purposeful decision to limit the legislative licensing system to just public broadcasting. The appeals court case is still underway, and the matter has yet to be settled.

Broadcasting Rights: "Hot News" and "Live Match Updates"

The media and broadcasting business, particularly in the sphere of sport and live matches, is concerned about parallel or concurrent broadcast of such happenings via websites and mobile apps by a licensed authorized broadcaster who has committed in the broadcasting rights.

In the landmark case of Star India v Piyush Agarwal[13] (2013), the Delhi High Court issued a constricted injunction forbidding the defendants from publicizing live stream evidence in the form of ball-by-ball or minute-by-minute live scoring and match alerts without already getting a license from the Board of Control for Cricket in India (BCCI).

The plaintiff had secured a television broadcasting license from the BCCI and sought an injunction barring the defendants from utilizing text-based reporting to report cricket events on their mobile app. A temporary injunction was given by the court, permitting the respondents to notify fifteen minutes just after real broadcast, enabling the authorized broadcaster to reap the benefits of their investment.

The Delhi High Court reversed the verdict on appeal, holding that match data and updates are inherently facts and therefore are not covered under the Copyright Act. As a result, whether for commercial or non-commercial purposes, publishing or disseminating match information or facts does not constitute copyright infringement, prejudicial competition, or unfair augmentation. The decision was taken to the Supreme Court for review. However, the Apex Court upheld the single judge's interim order, it has yet to reach a final decision on the matter.[14]

De Minimis Infringement

Copyright is governed by the principle of "de minimis non-curat lex," which means "the law does not bother itself with trifles.[15]" If a litigation is about trifling matters, a court has the ability to use the de minimus principle. The De minimus philosophy, for example, is employed in music sampling, when sound engineers modify a little section of a piece of music and include it into a new piece of music.

The theory was used to decide copyright infringement in the case of India Independent News v. Yashraj Films Private Ltd.[16], when sections of popular songs were broadcast in a singer's interview on a television chat show. It was decided that the claimed infringement was not actionable because it was deemed de minimis.

Trademark Act, 1999

Songs, music albums, movie titles, and their well-known characters are all protected by the trademark legislation.

The following are a few of the prerequisites that must be met:
  1. Titles and phrases should be unique. The general ones will not be protected under trademark if the titles are not unique.
  2. There will be no trademarking of single film names. Film franchises like Harry Potter and the Chronicles of Narnia, as well as television shows like F.R.I.E.N.D.S., Money Heist, and others, can be trademarked.

Rights of Celebrities

Celebrities' photos have been misappropriated and used without their consent. In India, the copyright and trademark acts both protect celebrity rights. In addition, the Universal Declaration of Human Rights aims to defend the rights of celebrities.

Sections 38 and 39 of the copyright Act cover celebrity rights. The performer's right is guaranteed to any performer respecting his performance for fifty years under Section 38 of the copyright legislation. Section 39 of the copyright statute states that if a person records a performer's performance without his consent, he will be held accountable for infringement.

Combating Online Piracy: An Evil for Broadcasters and Media

John Doe judgments have demonstrated to be an excellent way for copyright owners to protect their rights in the past, in both physical and virtual worlds. The Delhi High Court designated court commissioners to confiscate devices from the establishments of unidentified cable companies who were livestreaming the 2002 Football World Cup without the plaintiff's permission in the case of Taj TV v Rajan Mandal[17] (2002), which involved an infringement of a sports TV channel's broadcast reproduction rights.

The John Doe concept has been effectively used by a wide number of media firms and broadcasters to tackle large-scale piracy over the years. But misuse of John Doe orders has resulted in the blocking of lawful content and entities under the pretense of such orders.

As a result, in Eros International Media v BSNL [18](2016), the Bombay High Court established a three-step verification procedure for blocking orders to be valid:
  1. written verification and assessment by external agency of infringing uniform resource locators (URLs).
  2. second-level verification by the complainant and its advocates; and
  3. an affidavit on oath.
In addition, the court directed that all internet providers create an obstructing page with data about the order and the court, having allowed any real or innocent individual to register a complaint with the court.

In today's competitive environment, where piracy is fast and pirates are anonymous, it's more important than ever to protect intellectual property, John Doe orders have increasingly become useless, necessitating a new approach. The media and broadcasting industries are losing a large amount of money as a result of pirated copyrighted content that is publicly accessible and downloadable on websites. 'Rogue' websites such as Kickass, Piratesbay, Torrentz, and others operate solely to disseminate infringing material. Whenever one URL or server is blocked, additional URLs and servers with similar names and locations surface.

The court has prescribed the following factors for classifying websites as rogue websites:
  • the primary purpose of the website is to facilitate infringement.
  • traceability of the owner.
  • non-responsiveness of the website operator to takedown notices.
  • the website contains instructions to facilitate copyright infringement; and
  • traffic volume or frequency of access to the website.
     
The court's rogue website requirements were essential to protect the flexible order from being utilized against legitimate internet sites that fall under the category of "intermediaries" and are given legal protection under the IT Act, 2000 and its guidelines.

Conclusion
Intellectual property laws have always played a major role in protecting creative minds especially copyright and trademark. The copyright law mainly protects the literary work of the author from misuse or use without consent for commercial gain. The trademark law on the other hand accords protection to any signs, goods, or services. Intellectual property has paramount importance in the media and entertainment industry as it gives the necessary protection thus preventing the misuse of their work and accelerating the business growth.

In the digitized era, intellectual property plays a more significant role. As more and more content has been being uploaded online, disputes such as copyright piracy are rising. The work of the authors and artists needs protection after they have been created to avoid its misuse by other persons. The role of intellectual property law comes into play at this stage which has been performed to the best of effect since its inception. It has been amended from time to time to resolve the issues which crop up relating to the rights of the creator in the modern era.

End-Notes:
  1. Mamta Rani Jha, Protecting intellectual property in media and broadcasting, World Trademark Review (December 19, 2019), https://www.worldtrademarkreview.com/protecting-intellectual-property-media-and-broadcasting
  2. Tripti Bhushan & Yash Arora, Intellectual Property Rights and Its Protection in Cyberspace and media laws, 2020 IJARIIE 6, 1-4.
  3. Intellectual Property Rights and Communication: An Anthology (pp.238), EBH Publishers (India), 2019.
  4. Dhiraj Dharamdas v. M/s Sonal Info Systems Pvt Ltd, 3 MhLJ 888 (2012).
  5. Section 44, Copyright Act, 1957
  6.  Supra Note 2.
  7. MANU/DE/2043/2010.
  8. Illakiya Kamaraj, Role of IP in the Media Industry, Enhelion (October 2, 2021), https://enhelion.com/blogs/2021/10/02/role-of-ip-in-the-media-industry/
  9. 1997 (99) (3) BOMLR 613
  10. Id.
  11. S. 2(d) of the Copyright Act, 1957.
  12. Tips Industries Ltd. v. Wynk Music Ltd., Notice of Motion (L) No. 197 of 2018 in Commercial Suit IP (L) No. 114 of 2018, decided on 23-04-2019.
  13. 2013 (54) PTC 222 (Del)
  14. https://www.scconline.com/blog/post/2019/05/13/bom-hc-statutory-license-under-s-31-d-of-copyright-act-not-available-to-internet-broadcasters-wynk-music-injected-from-broadcasting-tips-repertoire/
  15. De Minimus Use, USLEGAL (Aug. 25, 2019, 09:30 AM), https://entertainmentlaw.uslegal.com/intellectual-property/copyright/de-minimis-use/
  16. 1094 COMIP 596 (2019).
  17. 2003 FSR 22
  18. SUIT (L) NO. 303 OF 2016

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