Hamstrung copyright law and the Agony of scriptwriters in India
India’s mammoth film and TV industry have been ever-growing. The industry is recorded to employ 7.4 lac people. The creative industry, being home to many artists and creative writers, has often failed to provide shield and protection to the creativity of its people. One such group of the people is of scriptwriters. The scriptwriters often go from one person to another to tell their story in search of the right producer/director for their story. The process of discussing the script with more than one person being inevitable carries an ample amount of risk of the script being stolen. Thus, a need arises to look for a remedy to bring an end to this vicious circle and protect the creativity of the scriptwriters from being undermined.
It is a well-established law that copyright law doesn’t protect an idea but only an expression. RG Anand v. Delux Film (AIR 1978 SC 1613) was the first case where the Supreme Court held that copyright exists only in expression and not an idea. Therefore, disclosing an idea that has not been reduced to something concrete will not provide the aggrieved person with any recourse in case the script gets stolen since a mere idea is outside the ambit of copyright protection. The same idea can be developed differently and therefore it is the way how you express it, is accorded protection under the copyright law. This calls for a need to pen down an idea into a written form as soon as possible.
The copyright law protects the work as soon as it is created and there is no need for mandatory registration. The dilemma related to the said provision is how to prove someone as the creator of the work without the registration. To protect the work from potential infringers and to create evidence of creation, registration under copyright law seems a probable and an attractive option.
This is also evident from the court’s decision in the case of Jyoti Kapoor v. Kunal Kohli ((2015) 6 Bom CR 54) which was a confidence booster for many scriptwriters. The Court in the case ruled in favor of Jyoti Kapoor where her storyline once discussed with Mr. Kohli in confidence was used by him to produce a film called ‘phir se’, holding that there are striking similarities between the two. Although the Court ruled in favor of Ms. Jyoti Kapoor, the situation like hers is still a nightmare that the scriptwriters of the industry dread.
Do the facts of Ms. Jyoti Kapoor’s case imply a need to carry a non-disclosure agreement every time scriptwriter approaches a director/production house? It is more than desirable to have a Non-disclosure agreement signed before the script is pitched. The agreement will bind both the parties and ensure that the ideas of the script are not disclosed. This could also work as an extra layer of safety for the scriptwriters and ensure that their rights are safeguarded.
It cannot be contested that the Copyright Act is a wholesome Act in itself in as much as it extends rights as soon as the “original work is created”. However, to prove oneself as the creator can be an irksome task. The threat of potential infringers is also as real as it can be. When the difficult times’ dawn upon, one credible recourse that strikes the mind is to knock at the doors of litigation. But how feasible is it to go through a process which is not even time-consuming but also puts a hole into your pockets and drains your energy? To spare oneself from the daunting task of going through litigation, Arbitration comes across as a better route. The film industry is an industry where reputation and goodwill are paramount to its members. Getting into litigation for copyright issues puts both the reputation and goodwill at stake and the claims could make or break your existence into the industry. The advantages of arbitration of confidentiality, party autonomy, and speed give it an edge over litigation and work as an efficacious dispute resolution mechanism for the Indian film industry.
Therefore, it will be safe to submit that there is a need to make copyright issues arbitrable under the Acts and necessary amendments to be implemented.
Steps that can be taken to prevent yourself from landing between a rock and a hard place: –
- Always pen down your ideas into a script. Don’t knock at the doors of producers with a mere idea in your heads.
- Get copyright for the script. The same can be achieved through an e-filing processwhich can be done through:
Copyright Office, Government of India.
- Sign and get signed a Non-Disclosure Agreement. This will work as an additional protective layer. Your NDA can contain a clause on the lines that in case the script is expressly accepted only then the rights will be exchanged between the parties. The use of the script without any such acceptance shall be a copyright violation.
Making copyright issues arbitrable may be a favorable development. However, until such positive moves are made going through a litigation process is the only available recourse in case of copyright breach. To prevent yourself from being in a sticky situation like this, the above-mentioned steps can work as a shield and may prevent you from any future infringers.
In the interest of the scriptwriters of the Indian Film Industry.
Diya Mehta, Advocate
Associate, TvT Legal