To Kill A Copy Cat

By Mohit Kapoor and Ajay Shaw

The concept of "Plagiarism" has generated much curiosity in recent times especially in the context of the entertainment industry. The term has been defined by authors as "the act or instance of copying or stealing another’s words or ideas and attributing them as one’s own."

Recently, Barbara Taylor Bradford’s best-selling novel, A Woman of Substance, which is considered a classic in popular fiction and which was also aired on TV stations across the US as a six-hour miniseries, is once again making waves, not within the world of global fiction, but instead on the Indian television and legal circuit.

Bradford claims that the television offering, Karishma – a Miracle of Destiny is a plagiarised version of A Woman of Substance. An injunction has been granted against the broadcasters to prevent broadcast of the Rs 60-crore serial.

In another recently reported case, a company in Kolkatta has been sued by the author of the renowned Harry Potter series for unlawfully translating some of her books and selling them in the local market.

Such cases have highlighted the concept of plagiarism, and circumstances under which it would be subject to legal scrutiny. It has been reported that Bollywood has repeatedly borrowed themes and ideas from its western counterpart, including lifting scripts directly from Hollywood blockbusters and translating them into mega masala movies.

Under Indian law, the protection of intellectual creations such as works that are literary, artistic, dramatic or musical in nature are subject to protection under the Copyright Act, 1957 ("Copyright Act"). Thus, the Copyright Act is the central statute dealing with the issue of plagiarism.

Copyright subsists in original literary, dramatic, musical and artistic works; cinematograph films. "Work" within the parameters of the Copyright Act means a literary, artistic, dramatic, musical or artistic work; a cinematograph film; and sound recording.

In essence, copyright is a bundle of rights granted to the author for his intellectual creation. This bundle of rights can be broadly classified as (i) exploitable rights and (ii) moral rights.

Exploitable Rights: A Work that is protected by copyright can be exploited commercially by the owner of the Work, or a person authorised by him. Copyright owners can reproduce an original Work, prepare derivative Works based upon it, adapt the existing Work in another form (e.g. conversion of a literary or artistic Work into a cinematographic Work, re-arrangement of a literary Work, depiction in another artistic form of the Work), translate a Work into different languages, distribute copies of it, and to display it publicly.

The owner of a cinematograph film has the exclusive right to make copies of the film, including photographs of an image forming part of a film. They may also sell or give on hire copies of the film, and broadcast the film to a public audience.

Moral Rights: The author of the Work is entitled to certain moral rights, also known as "paternity rights". Moral rights provide the author with the right of attribution in respect of a Work and grants him the right to prevent any distortion or mutilation of the Work, which is prejudicial to his honour or reputation. The moral right of the author exists even after he has assigned away his economic rights in the Work.

If anyone other than the owner or person entitled to the copyright seeks to exploit or associate himself with the Work, it constitutes infringement of copyright in the Work, which is actionable by the person entitled to the copyright. The Copyright Act however provides certain ‘fair use’ exceptions to infringement to enable the reproduction of the Work for public purposes to encourage private study and research and promote education.

From the perspective of the Copyright Act, what is essential is that the Work must be created entirely by the author i.e. the Work should be a product of the labour, skill and capital of the author, and not copied from another Work.

Indian law does not grant protection to ideas and concepts; what is protected is the expression of the idea or concept. Only if the idea is recorded in a medium will it be a subject matter of copyright protection.

The depiction in a television serial based on a book in which copyright exists, or excerpts thereof, without obtaining authorisation from the author of the book, is likely to amount to infringement of copyright. Similarly, the unauthorised translation of an existing Work could also constitute copyright infringement.

There can be no copyright in historical facts or legend, and it is always open to any person to choose such a theme as the subject matter of a Work, and develop it in his own manner and give expression to the same. Thus, one comes across several simultaneous cinematographic releases on the life of Bhagat Singh and other historical or legendary characters.

Courts in India have held that copyright is concerned with the arrangement of content i.e. - the form of expression and not the novelty of the content. A Work inspired by a copyrighted work may not result in an infringement of copyright if the theme is presented and treated differently so that the subject matter of copyright becomes a completely new Work. But, given a situation where it can be proved that while creating the product, the author has copied an essential and substantial part of the copyrighted work it could constitute infringement of copyright. Courts have also held that the test of copyright infringement ultimately centres on whether a person has copied an essential or substantial part of a copyrighted work. The substantial copying here would include both qualitative and quantitative copying of the copyrighted work such that a third person having read or seen both the Works is clearly of the opinion and gets an unmistakable impression that the subsequent Work appears to be a copy of the original.

With the globalisation of the Indian entertainment industry and the explosion of several competing, round-the-clock TV channels, producers have been under pressure to generate content for the masses who seek entertainment at the push of a button. This exponential demand for content could result in producers resorting to acts which may amount to infringement of copyright of others. Given the fact that India is a signatory to several international conventions on copyright law and has in place an effective Copyright Act, creativity both in India and abroad is likely to be protected against incidents of plagiarism. The recent developments could result in the opening of floodgates for lawsuits against plagiarists, who try to profit from other’s creativity.

The views expressed in this article are those of the authors and do not represent the views of the firm. This article does not purport to be professional advice, nor a complete or comprehensive study on the subject. It is recommended that professional advice be sought before taking any action pursuant to any matter contained in this article.