USE OF PRE EXISTING MATERIAL BY FILMMAKERS

We have received two somewhat contradictory advices given below, from two lawyers, even though there is some agreement regarding the law itself... Filmmakers will need to make their own choices. As per the contract, they are liable for any consequences and would have to indemnify PSBT against these.

FROM LAWRENCE LIANG

There is understandably a lot of confusion in this area, and I will try to not add to the confusion.

First clarification: All the myths around the amount of time that is allowed while using music or film, for instance 10 seconds, 20 seconds, are all myths and not founded on law. So what is the position in law?

1. The Copyright Act defines various classes of work that may be granted copyright protection. The first class of works includes literary works, artistic works, dramatic works and musical works. It also protects cinematograph films and sound recordings, which could be considered the second class. The Act then goes on to define an entire regime of rights, obligations and exceptions for these works. The point to note, however, is that it treats the first class of works differently from the second, and that is where the genesis of the confusion lies.

2. The copyright owner is then granted an entire range of rights (Sec. 14) which include the right to reproduce, the right to communicate the work to the public, etc.

3. The ordinary way to use something that is copyrighted is then to seek permission.

4.  However, there also exists an exception to all of this in the form of the principle of 'fair dealing' or fair use in Sec. 52 of the Act. This is basically the defence that allows people to make reasonable usage, etc. without violating the right of the copyright holder. The most significant provision is Sec. 52 (l) (a) which allows for (i) private use, including research; and (ii) criticism or review, whether of that work or of any other work. The phrases criticism and review are critical since in the case of literary works, artistic works, etc. they would include using extracts, etc. which is reasonable. There are also a number of tests that have emerged from case law on what would amount to a fair or reasonable use (These include nature of use, amount that is used, etc.). This provision is however, not applicable to cinematograph films or sound recordings.

5. The only exception in Sec. 52 for cinematograph films is the ability of educational institutions to show the film to its students and staff. There is a whole range of exceptions for sound recordings but not of the sort that filmmakers will be interested in. They relate more to the ability to make version recordings, etc.

So what happens when there is this Bermuda triangle in the law on cinematograph films and sound recordings?

You could take an approach of a 'strict interpretation' in which case the copyright owner could argue that nothing is allowed. This would be based on a cumulative reading of Sec. 51 with Secs 2(f), 2(ff) and 14(d).

Alternatively, you could have a liberal reading of the Act to then argue that as per Sec. 14 the only rights that accrue to the owner of a cinematograph film are the rights:

1.To make a copy of the film, including the photograph of any image forming part thereof;
2. To sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such a copy has been sold or given on hire on earlier occasions and
3. To communicate the film to the public.

All of these rights deal with the work as a whole and not with a part of the work, such that if someone uses a clip then no right is violated. This is however a slightly risky approach, since the courts are very conservative in their readings and if someone points out that as long as there is no exception provided in Sec. 52 for cinematograph films, then it has to be considered to be excluded.

Unfortunately in India we do not have any case law precedent to back a 'fair use' argument for cinematograph films as yet. Fortunately, there are a number of cases from the UK and the US which do exist on the matter. In the absence of any Indian precedent, courts in India have always relied on US and UK precedents.

Then of course there is the 'permission' route, which is to seek permission from the owner of copyright to use the material. There are three things that may happen:

1. You get a no strings permission.
2. You get permission as long as you pay royalty.
3. You are denied permission (this will lead to a whole range of interesting possibilities both from the Copyright Act and from the right to freedom of speech and expression, but I wont go into the details here).

The Copyright Act does have provisions for 'compulsory license' when the materials are denied circulation in the public domain.

So my suggestion would be this:

Filmmakers should not be worried about using pre-existing material, if it is incorporated as part of some new work, provided they take reasonable care to ensure that it is not a very long clip (again this is subjective determination and there are no hard and fast rules). To provide an example, even the use of a small portion of the main riff of Deep Purple's Smoke on the water may be considered infringement while a much longer use of a section which is not the major riff may be considered alright. To reiterate, there is no basis for the assumption of the time that is allowed.

If one were to go by the strict interpretation of the law, then it would make the life of most filmmakers rather miserable and this area is very similar to freedom of speech cases and there will only be clarity if there are test cases. This is particularly true when you are denied permission, and you go ahead and use anyway. The line between copyright and censorship is very thin here.
 
FROM MUNISH SHARMA

On the copyright issue, I would tend to concur with Lawrence. There appears to be no law on using music or film for 20-30 seconds. However, as a matter of practice, certain channels have been using clips for a limited time period of say 10-20 seconds. This practice we understand was followed by a number of companies until a few years back. 

The law under the Copyright Act appears to be that unless the situation for which the music/visual is being used falls within the ambit of Sec. 52 of the Copyright Act (which provides for certain acts which do not constitute an infringement), it is necessary for the potential user of the music/visual to take the necessary permissions from the copyright owner.

As far as music is concerned, copyright societies such as the Indian Performing Rights Society (IPRS) and the Phonographic Performers Limited (PPL) play a leading role in controlling the rights of copyright holders. One may approach the IPRS/ PPL, as the case may be, to obtain a license for use of music available on payment of a nominal licence fees. In the alternative, in case the music being used belongs to a person not registered with the IPRS/ PPL, then one may have to pay a certain sum as royalty for use of such music directly to the owner. In television serials and radio broadcasts it is understood that the channels approach the IPRS/ PPL for use after paying the fee. One can find out other sources from which copyrighted material can be legally used.

It may therefore be appropriate to take necessary permission from the copyright holder in order to obviate any potential claims or disputes in the future.