A cinematograph film is primarily protected under the Copyright law. As a culmination of multiple forms of creativity, each department receives separate copyright protection for its contribution – the writer is considered the author of the screenplay and the musical composer is considered the author of the musical work. However, the law’s understanding of the creative owners of the various creative aspects of cinema does not appear to sufficiently recognise the creative contributions of one – the director. Presumably shaped by the largely capitalist evolution of copyright protection, copyright law has essentially treated the film financier as the Author. This article attempts to critique the lacunae and proposes that the director ought to be considered a joint author of a cinematograph film along with the producer.

Copyright Protection for Directors: The Copyright (Amendment) Bill, 2010

India, much like the U.S.A., has not accorded any statutory protection to the director of a cinematograph film, defining an “author” of a film to be the producer who provides valuable consideration for its creation.[1] Unlike the U.S.A., India defines an author as the producer, although fundamentally, these countries use financing as the yardstick for authorship in a cinematographic film.

India, in the past, has considered the possibility of granting some form of ownership to the principal director. In 2010, the Copyright (Amendment) Bill, 2010, was introduced in the Rajya Sabha. Amongst the various proposals, a suggestion was also advanced towards adding the principal director as a joint owner of the cinematograph film, along with the producers. The amendment further called for an amendment to Section 17(5) relating to the first owner of a copyright, under which the producer and principal director were deemed to be jointly the first owner of the copyright.

Rajya Sabha MP and former Union Minister Kapil Sibal, who proposed the amendment, stated the following during the Rajya Sabha debates:

“The director has an enormous role to play in the making of a film. In fact, he is, according to me, perhaps, the principal creator. I very much wanted that the principal Director should actually share in the profits.”[2]

The Standing Committee would eventually reject this proposal, stating that this new remedy was “worse than the problem” (of the director having no right whatsoever). Interestingly, the Standing Committee observed that the inclusion of the proposal was “opposed in very strong terms by all stakeholders appearing before the Committee”[3]. The stakeholders named by the Standing Committee in its report were all stakeholders which essentially constituted producers, such as Film and Television Producers Guild of India, Indian Motion Pictures Producers Association, South Indian Film Chamber of Commerce (primarily constituting producers, exhibitors and distributers), Indian Broadcasting Foundation (with broadcasting corporates such as ABP Network, 9XM Media Private Limited as members). There was no director’s union at the time to put forth the submissions on behalf of the director.

The Standing Committee’s observations and reasons for refusal towards amending the definition of author in relation to cinematograph films were notable. The reasons were: i) most jurisdictions, like the USA, did not provide for authorship for the director; ii) international treaties, “namely WCT and WPPT or even Rome Convention,” did not even stipulate such a concept; iii) the producer is the “kingpin who invests substantive money”. This has even been echoed by the courts later, such as the Bombay High Court in Ramesh Sippy v. Shaan Ranjeet Uttamsingh and Ors., observing that: “it is a well known fact that a producer is a person who spends on the making of the film, owns the film and the copyright therein and is the author of the film”[4]; iv) no clear definition of ‘principal director’ in the cine industry; v) the proposed amendment will create a lot “of uncalled for and unnecessary problems in the Indian cinema,” and may result in further directors not being allowed to work in that capacity, being pushed down as assistant directors.[5]

The Standing Committee notably referred to the US jurisdiction twice, once in reference to most jurisdictions not providing for authorship of the director and again in terms of the payment system between producers and directors, where a sure profit is shared with no equal partnership between the director and the producer.[6] The comparison is notable because the US Copyright Law does not have any definition of an ‘author’, instead vesting copyright in ‘works of authorship fixed in any tangible medium of expression’[7]. It only necessitates ownership of the producer by virtue of deeming it the first owner through the work-for-hire doctrine. This, of course, does not appear to pose many obstacles in practice, as the US Copyright Law does not provide for moral rights that are inherently vested in the author of a work, irrespective of their economic ownership of the copyright in the work – a right available to authors in India.

Similarly, the Berne Convention is also ambiguous in its definition of authorship, simply naming it to be the person who claims to be the author by putting their name on the work. The Rome Convention, WPPT and WCT were all treaties pertaining to performers’ rights and digital protection of copyrighted works. Therefore, the Standing Committee, by focusing solely on the amendment’s financial repercussions and benefits, failed to consider the unique protections afforded to authors in this country. In fact, in the European Union, another jurisdiction where moral rights are upheld, the principal director has largely been considered an author or a joint author.[8] In a 2002 report, the Commission of European Communities, in fact, specifically allayed fears of “uncalled for and unnecessary problems” by stating –

“there is no evidence that the partial harmonisation of the notion of authorship would have caused difficulties in the exploitation of works or in the efficient tackling of unauthorised use of works. In practice, potential difficulties in exploitation of the works that arise due to the fact that there may be more than one author, are overcome by contractual arrangements. These contractual arrangements provide the necessary means for the exploitation of works. Examples include provisions in the contracts permitting the adaptation of the pre-existing works, contracts by which persons undertake to participate in the film production, licence agreements and other agreements concerning the film production.”[9]

The Report further notes that as per some directives, such as Directive 92/100/EEC titled ‘Directive on rental right and lending right and on certain rights related to copyright’, Member States may provide that an author shall be presumed, subject to contractual clauses to the contrary, to have transferred his rental right to the film producer when he concludes a contract concerning film production with a film producer, individually or collectively. This possibility to provide for a presumption rule should be read together with Article 4 of the Directive, which states that, where an author has assigned his rental right, he would retain the remuneration right, which cannot be waived.

Creativity and Authorship

There is no specific definition of what an author means in general in the Copyright Act, 1957, nor has there ever been a concrete definition laid down by the Courts.[10] Statutory definitions of author in the Copyright Act, 1957, have only ever been made in relation to the work. Therefore, Indian copyright law defines the role of an author as follows: the writer is the author of literary works, the composer is the author of musical works, the lyricist and screenwriter are the authors of lyrics and scripts, respectively, and the producer is the author of a cinematograph film. Notably, apart from cinematograph films, authors of other works are entities that provide discernible creative contributions towards the creation of the work.  

It is, after all, the creative force that the legislature wants to protect through copyright law. In the Rajya Sabha Debate, dated May 15, 1957, pertaining to the Copyright Bill 1955, Mr P.N. Sabru – a member of the Rajya Sabha – had stated in relation to the Copyright Bill:

“… I would certainly like our society and social laws to give encouragement in every possible way  to what may be called the creative instinct in life. I think that the writer, when he is writing some great work… is only expressing his own unique personality…”[11]

He further went on to state: “but the publisher, when he publishes a book is now expressing and he should not be in a position to exploit the urge which someone feels to do creative work.”[12]

A reading of the ‘Handbook of Copyright Law’[13], indicates that the very purpose of copyright is to ensure minimum safeguards of the rights of authors, thereby protecting and rewarding creativity.[14] Therefore, a reading of the Rajya Sabha Debates and the Handbook suggests that the purpose of copyright is to protect creativity, i.e. an expression of one’s unique personality, and not merely the financial or administrative labour and exploitation of various individuals to bring about a product.

Indian courts have also largely agreed, albeit only in passing, that intellectual contribution is a necessary requisite. For instance, in Najma Heptulla v. Orient Longman Ltd. & Ors., which was a judgment commenting upon joint authorship of a work, the court stated “if there is an intellectual contribution (emphasis applied) by two or more persons pursuant to a reconverted joint design, to the composition of a literary work then those persons have to be regarded as joint authors.”[15] In other decisions, like MRF v. Metro Tyres[16] and Yash Raj Films,[17] the courts have agreed on the fact that a movie is an ‘original work of authorship’. The definition of ‘originality’ in a work, as has been crystallised by the Supreme Court in the Eastern Book Publishing case,[18] is when such work is a product of an exercise in skill and judgment. Notably, the Copyright Act, 1957 does not use the term ‘original’ before sound recordings and cinematograph films, instead only restricting the requirement of originality to literary, dramatic, musical and artistic works.

The Director as a Joint Author

In the late 1940s, a group of cinephiles began looking at cinema through the literary prism of authorship.[19] This new school of thought celebrated the director as an auteur – an artist whose personality or personal creative vision could be read, thematically and stylistically, across their body of work.[20] In contemporary understanding as well, the film director is considered the one who manages the creative aspects of production.

Therefore, deeming the director as the author of a film would be in line with the widely accepted Auteur Theory, which recognises the director as the author of a movie by virtue of exercising choice over fundamental visual elements such as camera placement, blocking, lighting, and scene length, rather than plot line, to convey the message of the film.[21] The Parliamentary Standing Committee’s fear of a lack of definition for a “principal director”, which resulted in its initial rejection in 2010, can also be assuaged by definitions followed by some of these other director-friendly jurisdictions. For instance, the UK’s Copyright, Designs and Patents Act, 1988, defines a director as the person named in cinematograph films that are released bearing a public statement of a named person as the “principal director”. It is, of course, entirely possible that there might be multiple directors, much like actors. Therefore, taking inspiration from Australia’s Copyright Act, 1968, there could be multiple directors in a film, and each can be referred to as a maker of the film.[22]

This could provide crucial benefits to directors, such as having a certain amount of control over their creations, the ability to seek compensation for works created as derivatives of their own creations, and being able to enforce their moral rights.

Many of the jurisdictions that allow the principal director to be an author also name the producer as a co-author. Furthermore, a producer’s role is also considered much more than a financier, often being described as “a hands-on, immersive role, which includes identifying ideas to working with writers in the development of scripts, assembling commercially viable packages, raising finance, and looking at all aspects of pre-production, filming/shooting, post-production, as well as marketing, and distribution.”[23] Hence, the most appropriate remedy would, in fact, be for joint authorship of a work between the director and the producer. In fact, Section 17(c) provides that the first owner of a work-for-hire work is the one on whose instance the work was created. Such a method will continue to ensure that the producer continues to enjoy the fruits of the financial investment while ensuring important considerations are provided to authors as envisioned under the Indian Copyright Act, 1957.

Conclusion

It is perhaps time for a renewed consideration in respect of granting authorship to the director of the movie. The Parliamentary Standing Committee fear that the producer might use power and hierarchy to not engage with directors, which can be tackled with other arrangements, including a director’s union, as opposed to allowing for a director’s union and other arrangements to protect the rights of a director from a disadvantaged position, wherein no rights are inherently allowed to them. India has historically been the jurisdiction that attempts, its very hardest, to protect authors and creative contributors. In fact, the Copyright (Amendment) Act, 2012, exemplified India’s conscious attempt to rebalance the scales between the creator and the financier. It is perhaps high time India continues to uphold its commitment to creativity.