Understanding Copyright Protection for Media Programmers and Reality Shows

Understanding Copyright Protection for Media Programmers and Reality Shows. Most reality shows involve drama, competition and winning. But what creators in media and reality shows may often not realize is that lack of copyrights protection may lead to a lot of courtroom drama, competition around IPR and winning a trademark or copyrights suit. In this post, Compliance Calendar demystifies some common aspects of copyright and Intellectual Property Rights (IPR) that all media programmers and reality show creators must watch out for. We also simplify the legal process to secure access to some contentious and important rights for creators in the entertainment industry.
The entertainment business in India - How big is it and why you need to protect your IPR right now

With more than 140 crore people, a large middle-class audience that can afford sources of entertainment, cheap access to television sets and mobile phones, and low data rates - the entertainment industry in India is one of the biggest in the world.

The Indian film industry comes out with an average of 2000 films every year in more than 15 regional languages.

An industry survey found that more than half the middle class population aged above 16, now pays to download or stream authorized content.

A study by EY estimates the M&E sector to grow at 11.5% this year and reach USD 35.4 billion by the year 2025.

Despite these staggeringly large figures, it is unfortunate that the entertainment industry in India loses about USD 2.8 billion of revenue every year due to digital piracy. This loss can attributed to some of the following key concerns :

Unlawful streaming of copyrighted content through social media, illegal and fake websites

Plagiarism of script, characters and format

Trademark infringement

Use of user-generated content on social media portals without due credit

Newer challenges of AI-generated voice cloning and identity impersonation of famous personalities

IPR protection for copyrights for your media business - The what, why and how
All media businesses - whether streaming content online or offline through satellite, broadcasting news, reality shows, documentaries, films or talk shows, have one thing in common : creativity. This creativity manifests in the form of new ideas, images, sound, scripts and are created after meticulous coordination among creators, sound producers, script writers and involve large investments. Thus, protection of these hard-earned, monetizable rights assumes greater significance.
Broad framework for understanding Copyright protection for media industry in India
The Copyright Act, 1957
A copyright provides a bundle of rights to the original creator of content. Let’s say, a script is written by the author. The grant of a copyright on the same gives the author the exclusive right to publish it in the form of a book, convert it into a live drama, create a film based on the script, or abridge, translate it into another language or adapt it in the form of music, poetry or any other medium.
The Act defines copyright in Chapter III as ‘Subject to the provisions of this section and the other provisions of this Act, Copyright shall subsist throughout India in the following classes of works, that is to say, -

Cinematograph films;

Sound recordings.

Artistic works

Dramatic works

Musical works

A cinematographic film, soundtracks and other artistic works created in the media industry are thus exclusively covered under the Copyrights Act. Ancillary to this, an author or owner of the copyright can assign the work to another person - wholly or fully. Thus, a producer or director may pay a certain fee to a voice-over artist, script-writer or music creator for purchasing and vesting the copyright in the works so created, in the production company.
However, in case rights are assigned, an author/ owner of the copyright work, even after assigning the work to another person may still ‘claim authorship of the work’ and retain the right to ‘claim damages’ with respect to any ‘distortion, mutilation or modification’ of the author’s original work, in the event such distortion or any other act is damaging to the author’s reputation.
Who is the “owner” of copyrighted work when created by employees of a production company?

Under the exceptions in Section 17 of the Copyrights Act, when a literary, dramatic or artistic work is made by an author in the course of their employment by a newspaper, magazine or similar agency under a contract of service, for the clear purpose of publication, then the owner of such agency is the owner of the copyright, and not the author of the work.

Similarly, in case of works involving photography, cinematography that have been created at the behest of a person (say producer or the production company) for a remuneration, then the first owner of the copyright is such a producer or the production company as a whole, and not the person creating the work.

In a landmark case, (Indian Heritage Society & Anr v Meher Malhotra & Anr), the Delhi High Court granted a permanent injunction in favor of the Society, who was not the photographer, but was held to be the first owner of copyright in the photographs. This was because it was at the Society’s instance that the photographs were taken, in exchange of the consideration paid to the photographer.

Copyright in media works created on hire
In absence of an agreement by the media company, in case of works commissioned from an artist or a photographer or music producer on hire, the law favors the vesting of the copyright in favor of the independent contractor. Thus, it is advisable to include clauses on the vesting and assignment of copyrights so created in the media production house, while signing service agreements with independent artists for a show.
Copyright protection for Media Programmers
All creative works qualify for copyright protection. This also includes rights to source codes, databases and creative processes involved in media programming. By way of an amendment in 1994, computer programmes, tables and compilations including computer databases are within the meaning of literary work. The copyright protection in software designed for the media industry may generally also cover the following:

Screen display

Preparatory designs and arrangements

Object code and subject code

Information stored on computer media

Programming language

A collection of input and output formats used by the computer

This is also in accordance with international guidelines such as articles of the World Intellectual Property Organization, Copyrights Treaty of 1996. Thus, the technical aspects of source codes, original software created by a programmer in the media industry can be protected under both Patents Act and the Copyright Act in India.
Registration of Copyrights for artists, media companies and production houses

In order to obtain a copyright, an application must be made to the Registrar of Copyrights in the prescribed format with requisite fee, and three copies of the work sought to be copyrighted.

It is suggested that the registration process for grant of copyrights must be commenced at the earliest. After receipt of acknowledgement by the Registrar, a diary number is issued, post which, a mandatory thirty days waiting commences, during which a third party may raise an objection.

In case an objection is filed, a notice is sent to both parties. The officer-in charge passes an order after hearing both parties. Legal experts, such as those at Compliance Calendar can help successfully defend a client’s interests in conclusively establishing copyright, despite objections.

A letter of discrepancy may also be issued by the examiner’s office, in case errors are found during scrutiny of the creative work. A hearing may be scheduled to allow the applicant to explain the inaccuracy.

Once this process is over, a copyright officer issues the Certificate of Registration. This gives uninhibited right to the copyright owner for a period of 60 years from the date of first publication.

What if two or more people were involved in the creation of the copyrighted work?

Joint application for copyrights - Since copyrights is a beneficial law for rewarding creativity, there is virtually no limit on the number of creators who can be applicants to the copyright. Once granted, the copyright is equally shared between all stakeholders and creators.

Acquiring sole ownership of a joint work - Since all creators get equal rights as co-owners of the copyrighted work, one of them may acquire sole ownership of the work by way of a contractual agreement with the other co-owners. A legal expert may help in formalizing the terms of these agreements between all parties.

Transfer of copyrights to a media company by Licensing and Assignment: The legal procedures and what to watch out for Assignment of Copyright

The owner of the copyright can assign the rights involved, either wholly or partially, by excluding certain rights from assignment.

The duration of the assignment must be specified. If the agreement is silent on the duration, it is deemed to be for a period of 5 years.

The agreement should identify the work clearly and also specify the territorial extent of the application

If the rights granted on assignment are not exercised within a period of one year from the date of assignment, the rights so assigned lapse.

Subsequent royalties may also become payable to the creator (of lets say a musical work assigned to a film) for extension of their works to other forms of publishing, such as home video, internet, satellite broadcasting.

Moral rights of the author are retained even after an assignment, such as preventing the distortion, modification, or bringing any harm to the reputation of the author by exploitation of the assigned works.

Voluntary licensing of the copyrighted work

An owner of the copyright may choose to transfer the interest in copyright by way of license.

A license may be granted for both present and future copyrighted works.

In case of an exclusive license, the licensee gets a set of rights that are exclusive to him and may thus exclude even the owner of the copyrighted work from using the same. In a non-exclusive license, concurrent rights over the copyright can be exercised by multiple people.

While an assignment transfers the title in copyright, a license doesn’t involve any change of ownership. It only gives a right to do something granted to the owner of the copyright, that may be illegal to do without the licensing agreement.

Compulsory licensing of the copyrighted work

By way of Section 32 of the Copyrights Act, after the expiry of seven years from first publication of a literary or dramatic work, a person may apply to the Copyright Board for a license to publish a translation of the work.

Similarly, a Statutory Licensing for Broadcasting of Literary and Musical Work and Sound Recording may be obtained under Section 31-D. Any broadcasting organization, desirous of communicating published work to the public by way of broadcast (by way of television broadcast or radio) or a performance of any published musical/ lyrical work and sound recording, can do so by giving prior notice of this intention to the owners.

Terminating copyrights - the process of termination of licenses and relinquishment of copyrights in India
A licensing agreement would usually include a termination clause, through which the owner of copyrights surrenders certain rights. In case of a breach of conditions enlisted in the copyright agreement, the license may be terminated after serving a proper notice by one party. This can only be done in good faith, where breach is not caused by an action of the party serving the notice, and there is no element of fraud involved on part of the party alleging breach of conditions.
Moreover, under Section 32B of the Copyrights Act, if after the grant of a license, the owner of the copyrighted work publishes a translation of the work in the same language and which is substantially the same in content, the license may be terminated.
Section 21 of the Copyrights Act also gives the right to the owner of the work to relinquish all or any of the rights in the work. Through this, the author of the work may surrender or abandon the rights in the copyright work.
An owner of the copyrights can do so by giving notice to the Registrar of Copyrights under Form I, or by way of issuing a public notice. A notice for the same is published in the Official Gazette, a daily newspaper and website of the Copyright Office. The author of the work may relinquish all rights or may part with a specific right (such as, the right to create a film on a copyrighted book).
Resolved - common myths and FAQs around copyrights Can I obtain a copyright for unpublished works?
A copyright can be taken for both published and unpublished works. In case of unpublished works, relevant extracts may be submitted to the Registrar. A change can be effected in the Certificate once the work gets published, for a small fee. Thus, a writer on social media may still get their works copyrighted before putting them up on social media.
Does an author of the work retain rights of royalty over the copyrighted work?
After an amendment to the Copyrights Act in 2012, authors of literary, musical works or performers that are included in cinematographic films or sound recordings have an inalienable right to receive royalties for such works.
In conclusion, obtaining IPR rights, especially over creative works by way of copyrights is the foundational element of the media and entertainment industry in India. Having assisted niche corporate clientele in drafting copyrights assignment and licensing agreements, filing copyrights application and securing IPR, Compliance Calendar’s bouquet of services can make protecting your IPR hassle-free.

Understanding Copyright Protection for Media Programmers and Reality Shows

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