Month: February 2023

Unlocking the Voice Actor’s Rights in Indian Copyright Law

The Voice actor plays a very crucial role in Films and Advertisements in the Indian film industry. They engage the audience or customers with their talented voice acting and help in creating an authentic connection with the audience. Voices of voice artists are used and re-used to establish harmony with the visuals on screen. After the 2012 Amendment to The Copyright Act, 1957 (‘The Act’), many rights such as moral rights, equal share of royalty, etc. were provided to the Indian Performer. However, Indian voice actors still do not receive credit for their work and have to depend on the mercy of movie producers for royalties. In this article, we try to facilitate a legal discourse on the rights of the voice actor community.

Are Voice Actor Performers?

Performers are defined in section 2 (q) of the Copyright rules as: “performance”, in relation to the performer’s right, means any visual or acoustic presentation made live by one or more performers;

Section 2 (qq) defines a performer as “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;

Someone who performs casually or incidentally in the normal course of the practice of the industry with respect to cinematograph films is an exception to this definition of a performer.

A voice actor can be considered a performer if they give a live visual or an acoustic presentation. In the case of Neha Bhasin v. Anand Raj Anand, it was held that live presentations in a studio also constitute a performance. The presence of an audience is not mandatory. Hence, an individual who does voice acting inside a studio is also a performer.

If a voice actor creates an original work, such as a character voice, narration, or singing performance, they may hold a copyright in that work. This means that they have the exclusive right to reproduce, distribute, and perform the work, and can license or assign those rights to others for a fee or royalty.

In cases where a voice actor is hired by a company to perform a specific role, the copyright in the recording may belong to the company, unless there is an agreement stating otherwise. However, the voice actor may still have rights in their performance, such as the right to be credited as the performer and the right to prevent the recording from being altered or used in a way that is detrimental to their reputation

Voice Actors That Are Not Performers

In movies, certain junior voice actors may be required to make crowd noises. Because there is no skill required in making these crowd noises and they don’t have a distinctive characteristic, such performances will not be considered performances under Section 2(qq).

Rights Of Voice Actors Under Copyright Rules 1957

Section 38 of the Copyright Rules 1957 deals with the Performer’s rights. According to this, section a performer has a special right known as “performer’s right” in relation to their performance. This right shall subsist until 50 years from the beginning of the year in which the performance was made.

Under Section 38A, if the performance is incorporated in a cinematograph film by a written agreement, the producer cannot dent an equitable share in the commercial use of the performance. The commercial use of the performance includes reproduction, issue of copies or distribution, communication to the public including broadcasting and commercial rental of a cinematograph film.  

The provisions on assignments, licenses and copyright society apply with necessary modifications and adaptations to the performer’s right, as stated in section 39A(1) of the Act.

Problems That Voice Actors face in India

While voice actors are legally recognised as performers under the Indian copyright law, they don’t enjoy the rights given to performers.

  1. Performer’s society- There is currently no joint Performer’s society that represents voice actors all over India. A single all-India Performer’s society for voice actors will help in streamlining the collection and distribution of funds, and can stop the unauthorised use of voice actors’ work. Such a society can also take up matters on behalf of its members in a court of law.
  2. Royalties – The share of royalties that voice actors receive for their work is not uniform. Hence, voice actor has to determine their worth on their own. This leads to voice actors getting significantly underpaid.
  3. Unauthorized Use – Unauthorized commercial use by producers also exploits a voice actor’s hard work.
  4. Recognition- There is no national award for voice actors and their contributions. Not only this sometimes voice actors are not even mentioned in the credits of their work.

Conclusion

The Indian entertainment and media industry is the 14th largest industry in the world. The Voice-over artists and voice actors have contributed majorly to the success of the industry. However, their contributions are not often recognised on par with other performers. It is now high time that voice-over artists are treated as performers under the copyright act and given the same rights that other performers enjoy.

BY-

SHAKSHI SWARNKAR

2ND YEAR LLB

ILS LAW COLLEGE, PUNE

TRADEMARK: BULLYING IN THE NAME OF PROTECTION

TRADEMARKS

Trademark protection is given to protect and safeguard the marks which are exclusively used by a particular entity to sell its goods or services under its name. These marks help the entities in differentiating their goods and services from that of others. But unfortunately, some powerful entities have gone beyond their legal rights of defending their marks and bullying the weaker entities. 

TRADEMARK BULLYING

We say that trademark bullying has happened when a bigger entity that is generally registered under the Trademarks Act, 1999 threatens or tries to threaten the other entities which may be smaller in comparison, and generally unregistered by sending them to cease and desist notice on unreasonable grounds. The bigger entities in such a case try to threaten the smaller entities by creating a fear of suing the smaller entities in claims of infringement of the trademarks of the bigger entities. 

Most of the time the companies which are involved in trademark bullying are large companies that have well-known marks registered and are not bothered about huge money getting spent on litigations. These large companies are aware of the fact that the smaller companies neither have sufficient resources nor are economically well off, which restrains them from pursuing against the bigger companies. The smaller entities even though may have a legitimate case in most of the cases tries to avoid the legal hassles as they are overpowered by large entities in terms of resources and money. 

TRADEMARK BULLYING IN INDIA

In India trademarks are protected by the Trademark Act, 1999, and we are lucky enough to have provisions under this act to help the smaller entities from getting bullied by the bigger entities.

Section 142 of the Trademark Mark Act, 1999 protects the smaller entities from the larger entities when these bigger entities initiate a baseless infringement proceeding just to overpower the smaller entities.

Section 142 of the trademark act, 1999 states that:

“1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding for infringement of a trademark which is registered, or alleged by the first-mentioned person to be registered, or with some other like proceeding, a person aggrieved may, whether the person making the threats is or is not the registered proprietor or the registered user of the trade mark, bring a suit against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats and may recover such damages (if any) as he has sustained, unless the first-mentioned person satisfies the court that the trade mark is registered and that the acts in respect of which the proceedings were threatened, constitute, or, if done, would constitute, an infringement of the trade mark.”

We have provisions for bullying not only in the Trademark Act but also in the following acts:

  • Patent Act of 1970,
  • Copyright Act of 1957, and
  • Designs Act of 2000.

The aggrieved party can file a suit against the other party who threatens or bullies for a trademark under the provisions of section 142 of the Trademark Act, 1999, and can seek an injunction and monetary compensation. The trademarks which are eligible for this are only registered trademarks.

HOW IS IT DEALT JUDICIALLY?

Whether bullying has taken place in trademark would depend from case to case and would be decided by the courts by keeping all the situations and circumstances in mind.

In the case of Bata India Limited vs VitaflexMauch GmbH[2015], a lawsuit was filed by the plaintiff against the defendant in which the plaintiff wanted to restrain the defendant from issuing threats of legal proceedings on baseless grounds. Here the main questions were whether the notice which was issued by the defendant to the plaintiff contained any baseless legal threat and should the plaintiff be entitled to any damages or injunction for this. The Delhi High court held that the threats were made by the defendant to the plaintiff and were unreasonable. Therefore, the court issued an order against the defendant by restraining the defendant from issuing any further false threats.

Although India has a framework for protecting smaller entities from groundless, unreasonable, or baseless threats, there is no statute that would precisely define as to what would constitute a groundless, unreasonable, or baseless threat. However, some parameters such as the first user over the first one to file, deceptively similar which can cause confusion… etc. are used by courts to determine whether or not trademark bullying has occurred.

CONCLUSION

Thus, with this, we can conclude that there is a lack of clarity in the law with regard to what exactly constitutes trademark bullying as trademark bullying happens when an entity threatens the other entity with legal proceedings on unreasonable, baseless grounds. The smaller entities have to depend upon the fewer precedents to justify their contentions.

To make the law more efficient the term trademark bullying can be defined under the Trademarks Act, 1999, or the Trademark Rules, like the USPTO report. Also, under section 142 the terms baseless and groundless can be given more clarity so that courts can take decisions more efficiently. 

BY-

SONALI JUYAL

2ND YEAR LLB,

ILS LAW COLLEGE, PUNE

Harmonizing Space Laws and IPR

The world post-World War II has seen tremendous growth in the field of space exploration. Ever since the launch of the first satellite in space, the Sputnik-I by the USSR followed by Explorer-I of the USA, space exploration has increased rapidly. But increased development in space exploration technology coupled with private participation and globalization has enumerated the need for clear reconciliation between Intellectual Property Laws and Space Laws as the need of the hour. However, as of today, there is no clarity as to the relationship between Space Laws and Intellectual Property Laws.

The Requirement for Harmonization

The need for harmonizing Intellectual Property Laws with Space Law lies in several recent developments. Firstly, there is an increased participation of private sector players in the field which was not the case in the 20th century. These private entities are generally far more aware and interested in protecting their property, both tangible and intangible, due to the increased opportunity of monetization and commercialization. This was hardly the case with the government organizations that dominated the scene until a couple of decades ago. Secondly, the rapid development of technology has opened up new business avenues in space transportation and Exploration. Space Tourism, for example, is now no longer a very distant dream. This could open up the need to deal with the issue of protecting IPs other than Patents and venturing into Trademark and Design protection in space. Thirdly, a lot of work in space exploration is now carried out simultaneously across the globe through mutual cooperation. The question arises as to whose jurisdiction would an IP developed in such a way come under.

Hindrance to Harmonization

The biggest issue with Intellectual Property Laws being harmonized with Space Laws lies in the fact that the former laws are municipal in nature, i.e. their jurisdiction and applicability is restricted to the territory of the sovereign that made the law. Contrary to this, Space Law is a field of International Law that is applicable to the Outer Space Region – starting roughly 100 km above sea level. According to Article II of The Outer Space Treaty, 1967 (one of the most important international treaties regarding space law) no sovereign state can appropriate Outer Space as its own territory. This essentially means that there exists no concept of State Sovereignty in Space.

Step Towards Harmonization

Presently, due to a clear distinction between the “Outer Space Region” and “An Object Launched in Outer Space” existing in the Outer Space Treaty, the state which launches the object in space will be the one that can register the object under an appropriate registry, and shall retain jurisdiction on that object once it is in space. However, no clear law exists on whether Intellectual Property Laws would extend as such in outer space. Also, the fate of an object created by any activity in outer space itself, eg. in the ISS, is also unknown.

In this regard, The United States is the only country that has made a move in clarifying its position in regard to IPs, specifically patents. The US Space Bill extends the applicability of American Patent law to objects in space. The European Union has also tried to take steps in this regard, which has led to confusion because of non-clarity.

Indian Legislation and the lack thereof

Like most nations, India also does not have legislation regarding the extension of Intellectual Property Laws to Outer Space. But with the increased participation of several private players from India, albeit in a limited capacity, the demand for a definitive legal provision in harmonizing space law and IPR Law gains more traction.  Such a bill should comprehensively address all pertinent issues in this regard, for example:

  • A civilian control agency for all space-related activities except those of weapons development and national defense
  • Promotion of commercial use of space
  • Promotion of space tourism
  • Clarification and provisions relating to Intellectual Property Laws
  • Provision for licensing for entrepreneurs in space
  • Clear rules for all space-related activities, so that no adverse effects on the environment are caused
  • Clarification of Labour Laws in space etc.

Conclusion

Space is a frontier that has only started being explored. It is thus important to regularize and clearly define the rights, obligations, and procedures of humans in space. This is even more necessary when we take into account the great financial prospects that space exploration also holds. The above discussion thus clearly portrays the requirement for harmonization of Space Laws with Intellectual Property Laws and what aspects effective legislation should try to cover to deliver fruitful results in the future.

BY-

SAURADIP MUKHERJEE

2ND YEAR, LLB

ILS LAW COLLEGE, PUNE

Film Titles and Trademarks

The advent of the digital age and new-age technologies has increased the accessibility of people to films. Movie theaters are longer the only way to release a film for the masses. OTT platforms have been a game changer in the film and visual entertainment industry across the World. And no doubt, India is in no way far behind. The streaming and OTT apps have seen a spurt of growth in the Indian market and with this has come an increase in the amount of content coming from these OTT platforms in the form of movies, web series, and other content. With this comes the question as to how to protect these movie names from being used by someone else.

The title of a film is used to identify the work as a whole. Titles are important, especially from a marketing standpoint, because they capture the audience’s attention, set the tone for movies, and maybe give them a recall factor. The famous Sholay and Avengers are two memorable movie titles. Given the brand and recall value that a title might generate, one may interpret it as his/her intellectual property, making it critical to protect it against unlawful exploitation by others.

The question is, what are the various kinds of protection accessible to a film title in India?

Types of Protection available.

Registering a film title with entities like The Indian Motion Pictures Producers Association (IMPPA), the Film and Television Producers’ Guild of India, the Association of Motion Pictures and Television Programme Producers (AMPTPP), and the Western India Film Producers’ Association(WIFPA) is standard procedure in the film industry. Before registering a title, an association will typically perform a thorough search with other associations to determine if the same or a deceptively similar title has already been registered with one of the other associations. Only members of an association can typically apply for title registration with that association. Though this appears to be straightforward, the problem is that registration with societies and groups is not legally binding.

On the other hand, while the entire production of the movie along with its script, dialogues, songs, and music may be copyrightable under the Indian Copyrights Act, of 1956, such protection is not afforded to the title of a film. Trademark law, however, does offer some protection in this regard. Film titles can be trademarked as service marks under class 41 of the Trademark Rules 2001. Class 41 of the Rules deals with, among other areas, entertainment. This however comes with certain conditions.

Classification of Titles and degree of protection

There can be generally two types of Film Titles, one that is one of a long series of movies, eg. Dhoom, Golmaal, Avengers, etc., and standalone films, eg. Sholay, Swades, Inception, etc. The Indian Judiciary has consistently reiterated that it is much easier to get a registration for movie titles of the former type than of the latter type. Film Titles of series Films become easily eligible for registration as a Series Mark as defined under section 15 of the Trademark Act.

However, things are trickier for the titles of Standalone Films. In such cases, courts have ruled that it is required to demonstrate that such names have acquired secondary meaning. The Delhi High Court highlighted a few elements that would be significant in determining whether secondary meaning may be assigned in the case of Kanungo Media (P) Ltd. v. RGV Film Factory[1], namely:

  • Continuity and Length of use
  • The degree of advertising and promotion along with the amount of expenditure incurred,
  • The sales figures of the number of Theater admissions, sales, and the number of people who purchased or viewed the work. 

In the case of Sholay Media and Entertainment Pvt Ltd. v. Parag M. Sanghavi[2], a film by “Ram Gopal Verma by the name “Ram Gopal Verma ke Sholay ” was barred from release by the Delhi High Court due to trademark and copyright infringements in regard to the cult classic Sholay. After a series of hearings, the Delhi High Court granted an ex parte injunction to prevent the defendants from violating the plaintiff’s rights and recognized the rights in the title of the picture, The defendant offered an undertaking that it would not violate the plaintiff’s rights.

In the case of Biswaroop Roy Choudhary v. Karan Johar[3] the court ruled against the plaintiff who had a trademark registration under class 41 by the name “Kabhi Alvida Naa Kehna” and refused an interim injunction against the defendant’s name by the same name. The Delhi High Court opined that the defendant was an actual user of the mark despite of not having a Trademark registration. Thus actual usage along with fame and marketing expenditure was held as more important than mere registration.

Conclusion

From the above discussion, it is clear that getting a registration for a title of a film series is much easier than a standalone film. The court’s behavior, however, in regards to standalone films gives a huge undue advantage to large production houses over small filmmakers as was seen in the “Kabhi Alvida Naa Kehna” case. There should be more consideration put towards the interests of small independent filmmakers so that they are not left in deep water by the court’s decision.

Written By-

Sauradip Mukherjee

2nd Year, LLB

ILS Law College, Pune

[1] 2007 (34) PTC 591 (Del)

[2] CS (OS). 1892/2006

[3] 2006(33)PTC381(Del)