Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

22 February 2011

Film Clearance

Note: This article focusses on the clearance of the content in a film, not general contractual and regulatory clearances for shooting and dissemination (including CFBC / FCAT processes which are a different story altogether).

Film Clearance involves the legal clearance of a film prior to its release. Clearances are undertaken at the behest of different parties such as producers or distributors, and at different times: specifically, clearance may take place in relation to the production of a film or in relation to the acquisition of any/ all rights in it, and could affect the market value of those rights.

As one would expect, it is generally producers who commission clearance during production, and distributors who commission clearances in relation to acquisition. In both cases, the objective is to ensure that the content of the film is clear of any legal violations and breaches of contract, and that the film would not cause whoever has commissioned the clearance to have to incur any liability on its account.

Obviously, the manner in which this is done differs depending on who has commissioned the film clearance and when the clearance is conducted. For example, if the clearance of the film is undertaken before or even concurrently with its production, it is often possible to alter the content of the film to ensure that it is compliant with all the relevant laws and with contractual obligations. On the other hand, in the case of clearances which are related to the potential or actual acquisition of film rights, the process of clearance could be a form of due diligence or may, at times, become little more than a damage control exercise.

The components of the film which are checked during the clearance process include the credits and the content of the film. The manner in which this is done differs slightly depending on the time when the film is cleared. If it is being cleared before or concurrently with production, the content clearance process would begin with a clearance of the concept and the script of the film, and proceed to a clearance of daily rough edits. On the other hand, in an acquisition scenario, the entire final film would be subjected to the clearance process right from the main titles to the end credits at almost the same time, with neither the script nor the daily edits being cleared separately.

In terms of the credit clearance, there are two main aspects which are checked: the contractual obligations which the producer and distributor have entered into primarily in crew / deal memos., and the attribution of authorship and other credit to all those persons who would be entitled to this moral right under the Copyright Act, 1957. The latter being a statutory right, it is not entirely clear whether it is a waivable right, and as such, it is generally prudent to ensure that all those who are entitled to credit (including all the authors whose works are incorporated in a film) are, in fact, credited, whether they be lyricists or choreographers, and whether or not there is any contractual obligation to credit them in the film itself.

In terms of the content of the film (including its script): the film is checked against a variety of laws including laws relating to copyright, broadcasting, obscenity, and the law relating to emblems. In some cases, determining whether or not a particular law has been violated is a clearcut process: for example, the manner in which certain “protected” emblems may be depicted is clear. However, in other cases, the law is not clear: for example, the Programme Code under the CTN Rules does not contain definitions which would eliminate doubt about whether or not a particular scene would violate it. This is because the code is full of generalities, and determining what would be considered to have violated it is often a judgment call.

Further, there are areas where it is impossible to determine whether or not a law has been violated simply by looking at the relevant scene. For example, in the case of copyright infringement, it is simply not possible to develop an unassailable opinion about the non-infringing character of a scene/film since there is no database of copyrighted works, and it is impossible to know if the author of the work in question (including an underlying work in the film) has either intentionally or subconsciously copied from a pre-existing protected work without obtaining a licence.

When is it not possible to determine whether or not the content of a film violates any legal provisions, clearance is undertaken by referring to the contractual provisions signed with the relevant author, in order to ensure that the contract contains representations and warranties that the work in question is an original work, and to ensure that it contains indemnification provisions which would protect the person commissioning the clearance in the event that the work were found to have infringed third party rights.

In some instances, however, there are clear indications in films that third party rights / property have been exploited / depicted in a film (whether in the form of a copyrighted work, or trade mark, or otherwise). In such cases, reference to contracts would be made to ensure that the exploitation was in a manner which had been approved by owner of the rights. If no approval had been obtained, there would be three courses of action open: the first would be to enter into a licence for the use of the third-party property / rights, the second would be to hope that the use fell within the scope of fair use or fair dealing (or some other applicable analogous exception to the exploitation of exclusive rights associated with ownership), and the third would be to delete those parts of the film where third-party property / rights had been used or depicted.

Considering that it is not always possible to ensure that the film is clear, the focus throughout the film clearance process is on ensuring that the person commissioning the clearance is not forced to shoulder any liability in relation to the film. As such, film clearance does not result in a guarantee that the content of a film is clear.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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