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DIRECTOR – THE UNRECOGNISED AUTHOR: A CRITICAL ANALYSIS OF THE NEED FOR REDEFINING THE AUTHORSHIP OF FILM IN INDIA
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DIRECTOR –
THE UNRECOGNISED AUTHOR:
A CRITICAL ANALYSIS OF THE NEED FOR REDEFINING THE AUTHORSHIP OF FILM
IN INDIA
AUTHORED BY
- MUTHUMANI SOMASUNDARAN[1]
Abstract
A work is
an expression of its creator. Film is the creative expression of the Director
of the film. In
India, the entrepreneurial author, i.e., is the Producer is deemed as the
Author of the film and creative author, i.e., the Director is not recognised. One
of the main objectives of Amendment of 2012 was to update the Copyright Act of
1957 to ‘Protect Creative authors in films and music industry’. There was proposal in the Copyright
(Amendment) Bill, 2010[2] to
incorporate Principal Director[3] as the Author of film along with the
Producer and to redefine Joint authorship clause[4], this was summarily rejected while the Act
was amended in 2012. This article is an attempt to discuss the need for
redefining the film authorship in India. It is analysing the reasons given by
the Parliamentary Standing Committee in rejecting the proposal to redefine
Authorship of film in the light of industry practices, international practices
in recognising directors, and the actual position of the director of Indian
film without statutory recognition.
Introduction
Motion Pictures, Cinemas,
Cinematographic works, Movies etc are interchangeably used as per convenience
to address the art form popularly known as ‘Films’. It is one unique art form
with unprecedented growth trajectory. Film is an artform, which is a creative
expression of the creator(s) involved in its making. Authorship of film is a
complex affair because of the collaborative nature of film as a class of work.
A film is a collaborative work, wherein individual works worthy of copyright
protection, like the script, scenic arrangements, music components etc are
being put into use to create a totally new class of work. Because of this
collaborative nature there are multiple creative contributors and stakeholders
in a film. The director, screenwriters, producers, performers etc are involved
in the making of film and they all are direct stakeholders of film.[5]
Though there are multiple contributors in the making of film, a film is
essentially the artistic signature of the director.[6]
Films are the expression of artistic personalities of the Director.[7] It
is the creativity of the Director that is transformed and fixed into a film. As
legendary filmmaker Satyajit Ray once said, the
director is the only person who knows what the movie is all about[8]. In view of Alexandre Astruc[9]
films are written by a director using a caméra-stylo
or "camera-pen". The Director’s creativity is the ink for writing a
work, known as cinema. No cinema can survive without the creative input of the
Director[10]. A
Director is the one who creates a film by investing his creativity and
intellectual labour. Producer on the other hand is the one who makes the
necessary arrangements for the execution of film. The director is the creative
force in the making of film and producer is the entrepreneurial force behind
the making of film.
History of Film
Authorship
Copyright is a legal concept created
for protecting the interests of the creators of original copyrightable works.[11] Authorship
plays a central role in copyright law.[12]
Authors are the heart of copyright and they are the intellectual contributors behind
a work worthy of copyright protection. An author is an artist who confronts and
adapts the external elements to their work and expresses it with their
interpretation to the audience. In the case of films this task is undertaken by
the director. All authors leave an inscription of their creativity and
personality in their work and they should be recognised and rewarded for the
same.
Determining authorship is easy in
most of the works, because the general rule is that "author of a work is
the one who actually creates the work, that is, the one who translates an idea
into a fixed, tangible expression”.[13]
However, determination of authorship was a complicated affair in the case of
films and an exception to this general rule. The uniqueness of the medium and
the functioning style of the people involved in the same created a conundrum in
identifying the Author of the film. Film as a class of work, worthy of
copyright protection, is different from rest of the copyrightable works. Film
making is a highly collaborative process with contributions of multiple authors.
During the inception days of films, determining
the authorship of films and granting of corresponding rights to film was a
major problem faced by the copyright system. There were no model provisions or
international agreements on how to handle this issue, and hence nations came up
with legal mechanism which is best suited to their copyright approach and
industry practices. Each of the Nation had its own way of recognising the
authorship and ownership of film. The nations chose their approach based on
their social construct, cultural exposure and economic stability, philosophical
orientation and copyright approach. Often these mechanisms failed in
recognising the basic principles of copyrights. The determination of Authorship
was largely done on the basis of convenience rather than the actual creative input
involved in the making of film. Traditionally, the maker of the film was deemed
as the Author of the film, i.e., the Producer of the film[14],
and this approach was ignoring the contribution of the actual creators- like
the Directors. This global practice of non recognition of directors as author
of film went until the last lap of 20th century. However, Towards
the end of 20th century there were clarity as to the fact that the
author of film shall not be the producer alone. The director is also entitled to
be the author of the film and their creativity is to rewarded and recognised.
European countries statutorily recognised the directors as the author of film
along with the producer[15].
US rewarded the director by protecting their economic and moral rights through
Union contracts[16] and
collective bargaining.[17]
Authorship
of film in India
Indian copyright system is heavily
influenced the British system of Copyrights from its inception. The
intellectual efforts of the Director was left unrecognised, and they weren’t
recognised as the author from the very inception of the Copyright Act of 1957. Copyright
Act of 1956 of UK is not recognising the director as the author of film and the
same approach was followed by the law makers while making the Copyright Act of
1957. Absence of recognition of Directors in UK law was one of the cardinal
reasons for non-recognition of rights of Directors of films in Indian Copyright
Act ,1957.[18]
Prior to the amendment of the Act in
the year 1994, the Owner of film at the time of completion of the film was
deemed as the Author of the film, which effectively made the Producer, the
Owner as well as the Authors of Film. This was an antithesis to the general
rule that ‘authorship’ decided ‘ownership’. In the case of films in India ‘Ownership’
decided the ‘authorship’ of film until 1994. ‘Owner’ of the film when it is
under production on or before its completion is not regarded as the author of
the cinematographic film. This definition of producer was creating confusion in
determining who is the actual producer of the movie that shall be deemed as the
author of film , as per the law. For
determining the ‘author’ in relation to a film the court will have to find out
the time when film was completed and the person who was the owner of the film
at the time of the completion. Hence by means of 1994 amendment, ‘Author[19]’
of cinematographic film and ‘Producer[20]’
of cinematographic film was amended. This was a right opportunity for the law
makers to redefine authorship of film by taking into account the international
practices and there by recognising Directors as co-authors of films along with
the producers and thereby recognising both the ‘maker[21]’
and ‘creator[22]’ of
film. However, the 1994 amendment did
not recognise authorship status of Directors, instead it redefined the producer
as a person who takes the initiative and responsibility for making the work.
The harm in this definition is that one who takes the initiative and
responsibility for making of film is regarded as the author of a work, which
means there is no need of any creative contribution for one to achieve author
status. This approach is not addressing any aspect of ‘creativity and its
protection’ which is one of the cornerstones of copyright mechanism. Even when
most of the Common law countries started recognising joint authorships in the
case of films, we are considering producer as the sole author of films totally
ignoring the creative contribution of the Director. There is hardly any
difference between the concept of Authorship and Ownership when it came to
films in India, the statute is recognising producer as the author, and author
becomes the first owner of the work.
In Thiagarajan Kumararaja v. M/S. Capital Film Works (India)
Pvt. Ltd & Anr. the High Court of Tamil Nadu[23]
ordered in favour of the producer, wherein the Plaintiff (writer cum Director
of the movie) approached the court alleging violation of copyright over the
script of the film. In the instant case the producer had sold the dubbing
rights and remake rights without the knowledge of the plaintiff and hence the
plaintiff alleged that it violated his Copyright over script. The Court
concluded that by entering into the contract (for direction of movie) it shall
be presumed that all rights are assigned to the defendant by the plaintiff and
hence the plaintiff cannot allege copyright violation. If the 1994 amendment
while, amending ‘author’ and ‘producer’ of cinematograph, have had recognised
Directors as co-author of cinema , the Director would not have missed out the
benefit of his creative labour.
Amendment of the Copyright Act in
2012 was a golden opportunity to recognise Directors as authors/co-authors of
Cinematographic film, for the fact that one of the objectives of 2012 amendment
was to ‘Protect Creative authors in films and music industry’.[24]The
Amendment of 2012 improved the position of the writers, music composers,
lyricists and singers of by incorporating appropriate provisions in the Act. On one hand the 2012 amendment is a
triumphant success, but it miserably failed in redefining authorship of film
and extending copyright protection to the prime creative person behind the
making of film- The Directors. Even after recognising and protecting the rights
of scriptwriters, lyricists, music composers and performers no recognition were
given to principal directors
Attempt to redefine film authorship in India
Film
authorship in India was delinking
the principal directors from their legitimate claim over the film. By 2010
major industries across the world started recognising the film directors as a
co-author /joint author of film, the efforts of principal director were
recognised and rewarded[25].
Subject experts of India also attempted to bring in this change in our country.
This was clearly reflected in the proposed Copyright (Amendment) Bill of 2010[26].
For recognising and rewarding the intellectual labour of the principal director
of film The Copyright (Amendment) Bill, 2010[27]
proposed to amend s. 2(d)(v)[28]
and s. 2(z)[29] of the
Copyright Act of 1957, the former redefining author of film and the later
adding proviso to the joint authorship clause.
The Copyright (Amendment) Bill, 2010
redefined the author of film and recommended to make Principal Directors as
Joint authors of film along with the producers[30]. This
proposal was striking a right balance between the creative investment made by
the Director and entrepreneurial investment made by the Producer. The proposed
definition was crafted in a way to protect both the creative labour of the
director and the financial risk undertaken by the Producer.
The Bill of 2010 further recommended
to treat Film as a work of Joint Authorship. An explanation to S.2(z)[31]
was provided for the same. The explanation stated that ‘a cinematograph film
shall be deemed as a work of joint authorship except in cases where the
producer and the principal director is the same person’. This recommendation is
upholding the collaborative nature of film. No film can be made by the director
alone or the producer alone. Both the producer and the director make
indispensable contribution to the making of film.
The proposal to redefine the
Authorship of film and to include principal director as an author of
cinematograph film was vehemently opposed by the representatives of the Film
and Television Producers Guild of India[32],
Indian Motion Picture Producers Association[33] ,
South Indian Film Chamber of Commerce[34]
etc. All these associations projected the financial risk undertaken by the
producers in the making of film. They stated that the producer is the one who
takes the financial risk of the cinematograph film and the principal director
does not share the potential risk. Since there is no sharing of risk by the
principal directors they need not be considered as the author of the film. They
anchored the concept of authorship of film solely on the financial aspect of
the film. They were of the opinion that the one who takes the financial risk is
to be rewarded. The argued that joint authorship provision is absolutely unfair
and unjustified as it was the producer who faced the potential risk of loss[35].
The director is only responsible for direction and hence making him a co-author
is unjustifiable. By focusing more on
the financial risk element, they diluted the role played by the principal
director in the making of film and negated their intellectual contribution in
the making of a film.
The Copyright (Amendment) Bill, 2010
was introduced in the Parliament in April 2010[36].
However, the recommendation to redefine film authorship in India, by making
Director a co-author along with the producer was summarily rejected by the
Parliamentary Standing Committee through its ‘Two Hundred and Twenty-seventh
Report of the Committee on the Copyright (Amendment) Bill, 2010’.
The Parliamentary Standing Committee has acknowledged the
fact that director’s creativity has not yet been recognised in spite of his
intellectual contribution in the creation of the film. However, the committee
refused to approve the recommendation to amend the law to make Principal
directors as a joint author of cinematograph film along with the producer.
Primary reason quoted by the Parliamentary standing committee
for rejection was that no major jurisdiction has a statutory provision in
recognising the authorial status of director of film, especially in US. Parliamentary
Standing Committee pointed out that in the US industry the issue of Authorship
of film and incentivizing the creative contributors was addressed through
‘union contracts’, same shall be followed in India also. In US the Union
contracts acted as a tool to achieve what was left unaddressed by law. The
union contracts became an effective tool because of the structed Union
functioning and Collective bargaining. In Indian film industry there is no
structured union mechanism like in the US. Since there no effective Union
mechanism, there is no collective bargaining to claim economic and moral rights
for the directors like in the US. Furthermore, the creative labour and
intellectual efforts of a creator are to be governed by Copyright laws, not by
Trade Union arrangements and contracts. The approach taken by the Parliamentary Standing Committee is undermining
the creativity and intellectual labor of film directors. By stating that no
major jurisdiction has statutory recognition for the authorial rights of
directors, the Committee side-lined the fact that the European Directives[37] implemented by 27 European States[38] introduced ‘work of joint authorship’ in cinematograph films in last
decade of 20th century. These 27 European states are not only
include major jurisdiction but also some of the best film industries across the
globe like the French film industry, German Film industry etc. Both the
creative author as well as the entrepreneurial author is identified as the
author of film in UK through S.9[39] Copyright, Designs and Patents Act, 1988. There is no justification in
denying recognition to the directors of Indian film on account that there is no
similar statutory recognition in other jurisdictions.
While rejecting the recommendation to make director a
co-author the Parliamentary Standing Committee suggested that a well-designed
contractual agreement between the producer and the principal director, clearly
stipulating the nature and content of the enjoyment of rights, would be
sufficient to protect the interest of the director. This reason given by the
Parliamentary Standing Committee and its possibility of realisation is far from
reality in the Indian film industry. There was a contention that a contract
negotiated freely between the producer and the director which may include
percentage of profit would take full care of the rights of director. In
most of the situations the directors are ignorant or incompetent to negotiate
their contracts. In the power structure the directors are placed way below the
Producers and never in a co-equal status to demand their terms.
The Parliamentary Standing Committee stated that the producer
is the kingpin and the one who makes the film. The producer invests money,
utilizes persons, and chooses the director on certain offer; hence the producer
shall be deemed as the author of film. This approach of giving weightage only to the
monetary and entrepreneurial aspects in deciding the authorship of a work and totally
ignoring creative and intellectual labour by the director. One factually
erroneous reasoning provided by the Parliamentary Standing Committee is that ‘
it is the producer’s role which is central to the creation of the film’. This
is a reason beyond any logical reasoning and lack of awareness of the actual
functioning of film industry. Film is a collaborative art form and no single
person/entity alone shall be its author. There is a blend of capital investment
from the side of the producer and creative investment/intellectual labour from
the side of the director. Both the producer and director are indispensable for
the realisation of a film. By making the producer the kingpin the role and
positioning of the director is side-lined. The role of a director in the creation of film
is cardinal and director is the one who conceives, conceptualise and create a
film, the film is essentially the director’s creative labour and effort, it is
unjustifiable to state that the producer is central to the creation of film.
One cannot deny the role played by the producer in realisation of film. Film is
an art form that demands huge capital investment, and that is realised by the
producer, but no film can be made with Capital investment alone, it needs
intellectual and creative investment as well, and that portion is realised by
the director, hence both the director and as well as the producer are critical
to the completion of a film.
In the Copyright (Amendment) Bill, 2010, the term used to
address the director of film is ‘principal director’ , this was quoted as a reason
for rejecting redefinition of film authorship. Parliamentary Standing committee
stated that ‘Principal Director’ is not a term commonly used in the industry’. The
term ‘principal director’ had not been defined either in the Copyright
(Amendment) Bill, 2010 or Berne Convention, whereas S.2(uu)[40] of the Copyright Act of 1957 is defining ‘Producer’. The fact that term
‘Principal Director’ is neither defined in law nor used in industry is not a
valid reason to remove Joint authorship provision in the case of
cinematographic films. If Parliamentary Standing Committee found that the term
‘Principal Director’ is not defined, they should have ideally sought the
drafting body to provide clarification on the usage. The term Principal
Directors was incorporated by the drafting body to avoid any confusion when it
comes to identifying the author and assigning the right. By principal
directors, the drafters intended to address the actual film directors of the
film and to eliminate other directors like director of cinematography, director
of photography, directors of choreography, Associate director, Assistant
Director, Chief Associate directors etc. The usage ‘principal director’ is
actually providing a clarity, but Parliamentary Standing committee failed to
recognise it.
Another reason for rejection was ‘directors are well-paid and
are not marginalized’, this is again a factually erroneous statement. Amongst
the 1500 odd film produced a year nationwide, only a handful of directors are
well paid. Very rarely do a director directs movie year on year, in such a
situation the lump sum received as remuneration by the director in two year or
even higher span is not doing justice to creative labour the director is
taking. So, while discussing this aspect we should get hold of the actual facts
and figures of the industry. And in most
of the cases the directors are unaware of their monetary worth, and the rights
due to them. Barring a few established directors, directors as a class is still
subservient to producers when it comes to remuneration, negotiation, bargaining
etc.
Another reason provided by the PSC was that ‘if the proposed
provision were to become law, it could encourage producers not to engage
directors and to do the work of directors themselves, or alternatively to
engage directors to work as assistant directors which would impede the progress
of their careers’. This reasoning is just a hypothetical scenario and
apprehension without a sound reasoning, no producer or production house can
survive without the input and creative labour of a director. The lawmakers
should not fear the possible misuse of a provision, instead should create a
mechanism to curb the possibility of misuse of a provision.
The final observation of the Parliamentary Standing Committee
is that as per the existing system, the principal director is not taking any
equity risk in the production/performance of a film and it is the producer
alone who runs the risk of his investment not being recovered. Herein the
Parliamentary Standing Committee is superseding the basic principles and
purpose of copyright. The authorship status is determined solely on the basis
of the equity risk/capital investment and no room was left for the intellectual
labor and creativity.
The recommendation of Copyright
(Amendment) Bill of 2010, was summarily rejected stating that the director can
claim their dues and rights through contractual arrangement. Due to lack of
statutory recognition even the director of National award-winning movie[41]
is knocking on the doors of judiciary for justice. In the case of Sartaj Singh Pannu v. Gurbani Media Pvt Ltd &Anr[42] ,
Sartaj Singh Pannu, the director of the film Nanak Shah Fakir, approached the
Delhi High Court for orders restraining producer from releasing the film in
dispute, without giving him credit as the ‘sole Director’ of the film. The
Court declined the relief sought by the petitioner, since there is no statutory
provision to honour the prayer of the petitioner. Though the Court denied the
relief sought by the petitioner, the Court identified that copyright law
relating to Films are anomalous in nature. The
court stated that a director of a film is a moving force behind the creative
work that goes into film making; the Court further stated that their creative
work and effort is not statutorily acknowledged as an author or even as joint
author. While making this observation, the Court is quoting the UK law which is
counting film as a work of "joint authorship”[43],
‘author[44]’
as a person who creates it; and most importantly the provision which identifies
both the producer and the Director as authors in the case of films[45].
The Court is criticising the Amendment of 2012 in omitting the rights of
Directors. Because of the statutory vacuum, the Director is even denied of
basic right to exhibit his name as ‘Director’ in title card of the film. In a
copyright parlance the Director would not be able even to assert any moral
right. In the instant
case, the petitioner argued that Film and its Director come under S.2 (c) (iii)[46]
of the Act, which means that there is a craftsmanship of a director in the
making of a film making him an Author worthy of copyright protection. By
relying upon S.2(c)(iii) the petitioner is trying to supersede the limitation
posed by S. 2(d) of the Copyright Act, which is only recognising the producer
as the author of film. This makes it evident that there is no room for
interpretation of any of the provisions to protect the legitimate interest of
the Director.
Though the Court denied the relief
sought by the plaintiff Director, observed and stated that the Director is an integral part of film making and Director is
involved in all departments of film making, Director is the captain of the team
and hence the Director’s moral right is to be recognised let alone the right to
commercially exploit the copyright in a film. Director is a creator of an
‘artistic work’, i.e. a work of ‘artistic craftsmanship’; a good Director is
someone with craftsmanship[47].
A Director will be involved in almost all stages of film making - the
development of the story line, the casting of actors, the lyrics, the musical
score, the dialogues, and during the actual filming, the position or angle of
the camera, the lights, the layout of the scene, ensuring continuity and so on.
These observations made by the Court are giving a clear indication that there
should be provisions for protecting the creative labour and effort of principal
Director. The court is stating that the Directors are to be protected and our
laws are to be updated.
The
need for statutory recognition of Joint Authorship in Films as recommended by
the Copyright (Amendment) Bill, 2010
The basic aim of copyright is
providing essential incentives for authors to create, it is an incentive to the
creative labour involved in the making of a work. In film it is the creativity
of the film director that is transformed and fixed in the form of a film. A
director is presumed to be the person responsible for the creation and
completion of film, and hence director shall be rewarded for the same. Because
of lack of statutory recognition Principal director remains out of the purview
of the authorship and his rights remain at stake with the producer[48].
An author is a human being who
exercises subjective judgment in composing the work and who controls its
execution[49]. In the
case of film these requisites of being an author is met with only by the
director of the film. Director is the core person without whom films can’t be
conceived, created and screened before the audience[50].
If film is to be treated as a ‘Work’ worthy of copyright protection, the
Principal Director should also be identified as the ‘Author’ or one among the
authors of film, because of their intellectual and creative contribution.
Furthermore, going by the Hegelian
approach, an intellectual property is an expression of one’s personality[51].
In the case of film, it is the artistic personality of the principal director
that is being expressed. As per Hegelian approach, when a person externalises
his ideas using his mental faculties, he actually expresses his will. Such an
expression should be regarded as his property and given protection by the state[52].
By investing the money for the making of the film, the personality of the
producer is not getting expressed through the film. Going strictly by the
Personhood theory only the principal director shall be deemed as the author of
the film. Because of the distinctive nature of film as a class of work, one
cannot totally ignore the role of producer and rightful legal claim of the
producer over the film. Hence an ideal scenario in the case of film authorship
is to identify both the director and the producer as the Authors of film.
The ‘producer owns all’ approach has
been in practice from the inception of Copyright Act way back in 1957. The
rationale for the protection of the producers is primarily a utilitarian one,
which is having an incentive mechanism for production rather than incentivising
the creativity[53]. The
essential role of the copyright is to foster creativity, without recognising
the actual creator of a work, whose creativity is being expressed into a form
of work, this cardinal role of copyright itself is being questioned.
Internationally the
co-authorship/joint authorship of film is widely accepted. Many of the nations
has statutorily recognised Joint Authorship in the case of film, through which
both the producer and director of the film is recognised as the authors of the
film like the UK and member nations of European Union. The Directors are the
actual author of film and would therefore be the original copyright holder. But
in Indian scenario the contribution of the directors is ignored as the law as
it stands today does not vest any rights in a film in its director. In India, the
authorship of film decided solely on the basis of the financial risk undertaken
by the Producer and no weightage is given to the Creative contribution of the
principal director of film. There is hardly any difference between the concept
of authorship and ownership when it came to films in India. Due to this lack of
statutory recognition and ineffective contractual arrangements, the directors
of Indian films are missing out on both economic and moral rights which are
enjoyed by their international counterparts.
Earlier the
only source of revenue for the film was from the cinema halls; hence
distribution and distribution rights where key to the film business.
Exploitation of a cinematographic work is no more confined to the communication
to public in the cinema hall. It is has grown along with the technological
development[54].
The revenue contribution can be classified as 75% from Theater release
(Domestic & Overseas), 3% Video rights, 11% Satellite rights, 11% from
ancillary sources of revenue[55].
As a reward to the financial risk undertaken by the Producer the entire revenue
generated from cinema hall is owned by the Producer. No authors of the work
incorporated in the film can claim share/royalty from the revenue generated
from the cinema halls[56].
The revenue generated from the cinema hall is around 75% and the rest of the
25% of the revenue is derived from other sources. The revenue generated by a
film beyond the cinema hall itself is huge and there is no claim for directors
even though it is essentially an outcome of their creative labour. The quantum
of revenue generated is manifold to the capital investment[57],
and the directors are often settled with little amount of money in the name of
remuneration. The revenue generated from the sale of Satellite rights and
Digital Rights for streaming online a major source of revenue and a safety net
that reduces the risk of capital investment in the film making process[58].
These sources of revenue accelerate a film’s journey to ‘break even’ or even
‘table profit’ in some occasions. Sharing of the revenue from Satellite rights
and Digital revenue is one major economic right missed out by Indian Principal
Directors. The remuneration received by the director is miniscule when compared
to the revenue generated by the film, and hence it is only a fair demand to
provide royalty to the directors (like the musicians, script writer etc.) for
the revenue received from other sources of revenue than the theatre run in
domestic market.
While
rejecting the proposal to recognise the Principal Director as a Co-author of film,
one of the main reasons provided was that they shall secure their economic and
moral rights through contractual arrangement as it is done in the US. There is
certain inherent limitation the to the Contract mechanism in Indian film
industry. There is no standard format of contract, often the contracts are
drafted by the producer and they are favouring their interests alone. There is
no guideline as to the terms of contract that is to be entered into between the
director and the producer, the scope of this negotiation is highly limited,
often these agreements are taking away all possible rights of the director over
their creative work (Film)[59].
A director can demand royalty only if they are having an industry buy in,
bargaining power and a status to demand the same. Few exceptions barred, in
film projects the producers/production houses are often bigger
companies/entities with higher bargaining power, this often ends up in the
creation of highly one-sided contracts. Negotiations and writing of agreements
often happen during the shooting of the film and this leaves the director in a
weaker bargaining status. Director will be more keen in the creative aspects
and the fulfilment of his creative work , rather than contracts and its
nitty-gritties. The terms of contracts are directly related to the bargaining
power and the brand value of the director. A newbie director or director with
no bargaining power or medium repute is never protected by the terms of
contracts. What we could gather in from the industry practice of contracts and
its enforcement is that, it is not beneficial to the directors who is weaker on
bargaining capacity. The directors wouldn’t have had faced this plight if their
rights were recognised by way of statute.
Conclusion
A work is an expression of its
creator. Film is the creative expression of the Director of the film. An author
is an artist who confronts and adapts the external elements to their work and
expresses it with their interpretation to the audience. All authors leave an
inscription of their creativity and personality in their work and they should
be recognised and rewarded for the same[60].
In the case of film, the creative force in the creation of film is the
director. Hence the shall be recognised as the author of film. By recognising
the creative contribution of the Directors of the film, the entrepreneurial
efforts of the producer is not marginalized. Both producer and Directors are to
be treated as the Co- authors of Film considering their creative contribution
and entrepreneurial contribution. By recognising the Directors as a Co-author,
the producer is not alienated from the benefits of copyright protection, only a
rightful distribution of royalty and protection of moral rights of the
Directors are aimed at. As is it’s a matter proved beyond doubt, film is a
collaborative art form, hence it is only natural to treat it as a jointly
authored work as it was proposed in the Copyright (amendment) Bill of 2010.
Directors are to be treated as co-author of film along with the producer.
[1] Written and submitted by Muthumani
Somasundaran, Research Scholar at Inter University Centre for IPR studies,
CUSAT [ Ph. 9995407645, email: muthumanicopyright@gmail.com]
[2] Bill No. XXIV of 2010 introduced
in Rajya Sabha, India
[3] The Copyright (Amendment) Bill, 2010,
2. In section 2 of the Copyright Act, 1957 (hereinafter referred to as the
principal Act),—
(i) in clause (d),—
(a) in sub-clause (v), for
the words “cinematograph film or sound recording, the producer; and”, the words
“cinematograph film, the producer and the principal director;” shall be
substituted
[4] The Copyright (Amendment ) Bill,
2010
S.2(z)“Explanation.—For the purposes of this
clause, a cinematograph film shall be deemed as a work of joint authorship
except in cases where the producer and the principal director is the same
person;”.
[5]
C Paul Sellors, Collective Authorship in Film, 65 J.A.A.C. 263,
265 (2007).
[6] Steven Ascher and Edward Pincus, The Filmmaker’s Handbook: A Comprehensive Guide
for the Digital Age, Penguin, USA (4th edn., 2012)
[7] Going by the Hegelian Personhood
theory a work is an extension of the personality of its creator.
[8]“Remembering Satyajit Ray”, Indian
Express, May 2, 2016, available at Indianexpress.com/article/trending/trending-in-india/satyajit-ray-quotes(
accessed on 4/10/2021)
[9] World renowned French Film
Director and Film critic (13 July 1923 – 19 May 2016).
[10] AlexandreAstruc, “The Birth of
a New Avant-Garde: La CaméraStylo”, originally printed in 'L'Écran
française' 30 March 1948 as "Du Stylo à la caméra et de la caméra
au stylo", (Apr, 4 2020), http://www.newwavefilm.com
[11] WIPO “Understanding copyrights and
related Rights” pp 6-7
[12] Ryan Vacca, Work Made for Hire -
Analyzing the Multifactor Balancing Test, 42 Fla. St. U. L. Rev. 197 (2014)
[13] Community for Non-Violence v. Reid, 490
U.S. 730 (1989)
[14] An exception to this practice was the French, they
recognised the distinctive role of the creator and recognised the rights of the
directors and writers.
[15] In UK, by way of
amendment of S.9 of The Copyright, Designs and Patent’s Act, 1988. Other
European nations, like the France and Germany were recognising the directors as
author of the film as an when their current copyright statutes came into force.
[16] Directors Guild of America, SUMMARY OF DIRECTORS’
CREATIVE RIGHTS UNDER THE DIRECTORS GUILD OF AMERICA BASIC AGREEMENT OF 2020 – https://www.dga.org/Contracts.aspx
.This Agreement Acts As The Minimum Basic Agreement For Protecting The
Interests Of The Directors. This Agreement Practically Covers Both Economic And
Moral Rights.
[18] S.13- Copyright in Cinematograph
Films, The Copyright Act 1956, (4 & 5 ELIZ. 2 CH. 74) (United Kingdom).
[19] S.2(d)(v), The Copyright Act of
1957 (Act No.14 of 1957).
[20] S.2(uu), The Copyright Act of 1957
(Act No.14 of 1957).
[21] ‘Maker’ of a film is the
‘Producer’ of the film, means the
person by whom the arrangements necessary for the making of the film.
[22] ‘Creator’ of a film is the
‘Director’ of the film, means the person whose intellectual contribution and
creativity is being transferred to create a film.
[23] C.S. No. 93 Of 2012, Madras High Court, decided on Sep., 09 2016,
full text access from https://indiankanoon.org/doc/45684202/
[24] “The Copyright Amendment Bill
2009”, Press Information Bureau of the Indian Government, in 2009, available
at http://pib.nic.in/release/release.asp?relid=56444&kwd
[25] In US the director is recognised
through Contractual Arrangements, in UK through S.9 of Copyright Designs
Patents Act 1988 S. 9: Authorship of work
(1) In this Part
"author", in relation to a work, means the person who creates it.
(2) That person shall be taken to
be –
(ab) in the case of a film, the producer and
the principal director;
[26] The Full text of the Copyright
(Amendment) Bill of 2010 accessed from https://prsindia.org/billtrack/the-copyright-amendment-bill-2010
on 30 December 2019
[27] Bill No. XXIV of 2010 introduced
in Rajya Sabha, India
[28] S.2 (d)(v) of the Indian Copyright
Act of 1957
[29] S.2 (z) of the Indian Copyright
Act of 1957
[30]The Copyright (Amendment) Bill, 2010,
2. In section 2 of the Copyright Act, 1957 (hereinafter referred to as the
principal Act),—
(i) in clause (d),—
(a) in sub-clause (v), for
the words “cinematograph film or sound recording, the producer; and”, the words
“cinematograph film, the producer and the principal director;” shall be
substituted
[31] The Copyright (Amendment ) Bill,
2010
S.2(z)“Explanation.—For
the purposes of this clause, a cinematograph film shall be deemed as a work of
joint authorship except in cases where the producer and the principal director
is the same person;”.
[32] The Film & Television Producers Guild Of India
Ltd. is a Public incorporated on 26 February 1954. It is classified as Non-govt
company and is registered at Registrar of Companies. It is inolved in Motion
picture, radio, television and other entertainment activities.
[33] The Indian Motion Picture Producers’ Association was
formed in the year 1937. It is popularly known as IMPPA. It is the first and
the only internationally recognized oldest association of the Indian Film
production sector.
[34] The South Indian Film Chamber of
Commerce represents the conglomeration of the Kerala, Tamil Nadu, Andhra
Pradesh and Karnataka Film Chambers of Commerce.
[35] 227th Report On The
Copyright (Amendment) Bill, 2010 By The Department-Related
Parliamentary Standing Committee On Human Resource Development, (2010), (Presented
To The Rajya Sabha On 23rd November, 2010) (Laid On The Table Of Lok Sabha On
23rd November, 2010), Rajya Sabha Secretariat, New Delhi, full copy of the
report available At http://www.prsindia.org
, P.114
[36] The Parliamentary Standing Committee
called for representation from public (this included memoranda as well as oral
evidence from stake holders) before finalising the provisions of 2010 bill. 68
memoranda were received from the stakeholders. The Committee interacted with a
number of organizations/associations from the film, music and publishing
industry, Authors’ organizations, lyricists/music composers, Artists
organizations, Copyright Board and other organizations and departments ,
especially that of the Secretary, Department of Higher Education who was
entrusted to study the Bill in detail. On 26 May, 2010
[37] EC-directive 92/100/EC (Renting
and lending); EC- Directive 93/83/EEC (Satellite and Cable Transmission), EC- Directive.
93/98/EEC (Harmonizing the Term of Copyright and Certain Related Rights)
[38] Austria,
Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia,
Slovenia, Spain and Sweden
[39] The Copyright ,
Designs and Patent’s Act, 1988- S. 9:
Authorship of work
(1) In this Part "author", in
relation to a work, means the person who creates it.
(2) That person shall be taken to be –
(ab) in the case of a film, the producer and
the principal director;
[40] S.2 (uu)- The Indian Copyright Act of 1957
[41] Nanak Shah Fakir (2016)- Nargis
Dutt Award for Best Feature Film on National Integration-2016
[42] 2015 (4) ARBLR 176 (Delhi).
[43] S.10(1A),
The Copyright, Designs and Patents Act, 1988 (CH. 48) (United Kingdom).
[44] S.9, The Copyright, Designs and
Patents Act, 1988 (CH. 48) (United Kingdom).
[45] S.9(2)(ab),
The Copyright, Designs and Patents Act, 1988 (CH. 48) (United Kingdom).
[46] S.2(c)(iii), The Copyright Act,
1957 (Act 14 of 1957).
[47] The Court is quoting from a book
on Bergman, namely 'Ingmar Bergman: A Reference Guide' by Birgitta Steene,
published by Amsterdam University Press, in 2005 and substantiate that the work of Director is
equivalent to that of a craftsman.
[48] Director’s Authorship Under Indian Copyright Law: An
(Un) Indian Approach? ,Lokesh Vyas And Akshat Agarwal, Journal Of Intellectual Property Studies, Volume Iv Issue I
[49] Jane C. Ginsburg, The Concept of Authorship in
Comparative Copyright Law, 52 DEPAUL L. REV. 1063
(2003).
[50] Eileen Morley & Andrew Silver,
A Film Director’s Approach to Managing Creativity, 55 Harvard Business
review (1977).
[51] Justice Huges, Philiosophy of
Intellectual Property, Georgetown Law Journel (1988)
[52] Kanu Priya, Intellectual Property
and Hegelian Justification, 1 NUJS L. REV. 359, 361 (2008).
[53] Anand Nair , 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 - WIPO
Academy, University of Turin and ITC-ILO - Master of Laws in IP - Research
Papers Collection - 2012-2013
[54] Pascal Kamina, “Film Copyright
in the European Union”, Cambridge University Press, 2002 (incomplete)
[55] Swapnil Narendra, “Turnover of
Indian Film Indusrty”, www.filmmakersfans.com, Feb, 2017, available at http://filmmakersfans.com/research-annual-turnover-indian-film-industry/
[56]S.18. Assignment of copyright, the Indian Copyright
Act of 1957
[57] Selvalakshmi M, India Hema Verma, Neeta Jain
–‘Emergence of Indian Film Industry in the International Markets: Facilitators
and Impeders ‘-International Journal of Asian Business and Information
Management, Volume 11, Issue 3, July-September 2020
[58] Selvalakshmi M, India Hema Verma, Neeta Jain –‘Emergence
of Indian Film Industry in the International Markets: Facilitators and Impeders
‘-International Journal of Asian Business and Information Management, Volume
11, Issue 3, July-September 2020
[59] Anand Nair 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 p.1
[60] “Films and authorship” in the film
studies reader Hollows K Hutching P Jancovch M
Arnodld Publishers pp 45 81, as read in Authorship in Cinema: Author and
Reader , Basal Goskel Demiray, Cinej Cinema Journal , Vol. 4.1 (2014), ISSN
2158 -8724
Article Information
DIRECTOR – THE UNRECOGNISED AUTHOR: A CRITICAL ANALYSIS OF THE NEED FOR REDEFINING THE AUTHORSHIP OF FILM IN INDIA
Authors: MUTHUMANI SOMASUNDARAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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