Name of the Student: Sarthak Agarwal (3rd year BA LLB (National Law School of India University)

Screenwriting has never been taken seriously in India, as a result of which we have a larger film culture in which writers have never seen themselves as being exceedingly important to the filmmaking process

• Anjum Rajabali

INTRODUCTION

Screenplay writers in India are in an exploitative industry. Sparse pay, unfair contracts, and copyright violations are common. Their disadvantageous position colours the status of their rights. In this context, the decision in RD Bansal v. Harper Collins adopts an interpretation of Section 17 of the Copyright Act of 1957 that offers an approach different from the established view for determining authorship of underlying works in a film in general and screenplay in particular.

An analysis of copyright in a screenplay, through the prism of this decision provides a comprehensive picture of the legal landscape in this area. Pursuing this analysis, the article will present the theoretical and practical benefits that accrue to authors by recognizing screenplays as separate literary works. Prior analysis have focused on the equitable and empowering conclusions of this decision, without focusing on the reasoning these conclusions stand on. This article will highlight that the decision stands on thin judicial reasoning of distinguishing binding precedents and implementing the promise of the 2012 amendments to the Copyright Act without explicitly mentioning them due to their limited scope. Furthermore, the article will explore the persisting problems that will continue to disadvantage the screenplay writers even if the interpretation of Section 17 offered in RD Bansal becomes the prevailing legal position throughout the country.

UNDERSTANDING RD BANSAL v. HARPER COLLINS

The producer (Plaintiff) of the film ‘Nayak’ objected to the novelization of the screenplay by the Defendant. The screenplay writer was Satyajit Ray; his heirs had granted the copyright to a collective society that authorized this novelization. The question was whether the author or the producer had a copyright in the screenplay and whether a copyright existed at all in the screenplay dehors the copyright held by the producer in the film.

The court considered the inclusive definition and the wide judicial interpretation accorded to it, to hold that ‘literary works’ under section 2(o) include a screenplay.  The novelization was seen as a reproduction of the literary work, rights for which lie with the author.  Further, the court emphasized Section 13(4) to hold that copyright in the film cannot affect the separate copyright in the underlying screenplay. 

The next question was about the applicability of Section 17, which could confer ownership rights on the producer. Notably, the court held Section 17(b) to be inapplicable because the commissioning by the producer was for the screenplay, not the entire film.  The decision in IPRS v. Eastern India Motion was distinguished, as it dealt with musical works and not literary works incorporated in a film.  In the absence of any specific assignment agreement, the court concluded that the novelization was valid as the copyright in the screenplay lies with the author.

PROTECTING SCREENPLAY: AN IMPACTFUL RECOGNITION

Even before RD Bansal, Indian Courts had recognized screenplays as literary works. General observations considering screenplay as an underlying work in a cinematographic film, deserving of protection had also been made. These observations, however, were made together for a group of underlying works. The fact that RD Bansal focuses exclusively on screenplays makes it significant. Thus, this case involves a logical piecing of observations made in previous cases and a logical furthering of the position in recognizing the writer’s copyright over the screenplay.

The ongoing failure to recognize author’s copyright in underlying works of films has generated several critiques. One such criticism has characterized copyright law as endorsing only two factors for giving rights in cinema production. Firstly, the final screening of the movie, and secondly the risk-taking factor. Due to the first factor, copyright is granted to performers, singers, and lyricists because of the visibility of their work/person in the final film. The latter factor accounts for the economic risk-taking, giving rights to the producer. This model can be utilized to explain the plight of screenplay writers.

A screenplay is the blueprint of a film and incorporates the plot, dialogues, setting of the scene, placement, and many other minor details. This comprehensiveness is incorporated as a whole, with the film not straying far from the screenplay. This leads to dilution of the noticeability leading to non-recognition of the screenplay as a separate work. Even though specific components like dialogues are noticeable, they do not increase the visibility of the screenplay as a single separate work. A clear recognition of a screenplay writer’s copyright overcomes this problem of non-recognition raised by the noticeability model in cases of screenplay writers.

OVERCOMING IPRS: IMPLEMENTING THE PROMISE OF 2012 AMENDMENTS

InIPRS,the argument that Section 17(b) enabling ownership of the producer, will apply even if only a component of a film is commissioned was accepted for musical works. This led to a defeat of the music composer’s copyright in the commissioned work. Through the 2012 amendments, to undo the effects of this holding, the last proviso to Section 17 was added. It specifically mentioned that sub-clauses (b) and (c) will not affect the rights provided in section 13(1)(a) for authors of underlying works incorporated in the film.

However, the 2012 Amendment Act does not provide for repeal and savings and the legislative intent does not seem to make this Amendment retrospective in operation. By default, Section 6 of the General Clauses Act, 1897 will apply and for works created before the 2012 Amendment, the rights would be in accordance with the law prevalent at that point in time. If the screenplay was commissioned by the producer of the film before the 2012 Amendment Act, the copyright in it would lay with him in accordance with the decision in IPRS. This is precisely what occurred in the decision of Salim Khan v. Sumeet Prakash. The issue was of ownership in literary works of story, dialogues, and screenplay incorporated in the film. The court held IPRS to be squarely applicable, leading to the producer gaining copyright ownership over the literary works under Section 17(b).

In the facts of RD Bansal, the screenplay was commissioned by the producer before the 2012 Amendment Act, and a strict following of precedent would have led to a decision similar to Salim Khan. However, the Delhi High Court took an unexpected approach of distinguishing IPRS itself, limiting its applicability to musical compositions and awarding copyright to the writer of the screenplay.

The High Court concluded with the non-applicability of Section 17 on the facts. However, while rejecting the applicability of Section 17(b), it mentioned that reference to ‘cinematograph film’ in the provision applies only when one person makes a cinematograph film at the instance of another person. This abandons the rationale employed by IPRS, in addition to distinguishing it on facts.

Explicit mention of the 2012 amendments and the last proviso to Section 17 was not made, possibly because of the inability to justify a retrospective application. But the rationale and conclusion are in line with the legislative intention visible in the amendments. The amendments promised to ‘give independent rights to authors of literary and musical works in cinematograph films’. This larger purpose of protecting the author’s rights was ignored in cases like Salim Khan, which expanded the reasoning in IPRS to determine rights in a screenplay and other literary work.

The limited non-retrospective scope of the 2012 Amendment Act is exploited for circumvention of the amended provisions through the use of back-dated agreements. Even without blatant circumvention, a situation like in RD Bansal—where objections are raised against the novelization of a screenplay—is exploitative. This novelization doesn’t threaten the film’s commercial viability, as several years have passed since its release. In this light, the decision in RD Bansal is a crucial precedent with the hope of bringing a modicum of equity in the relational dynamic between screenplay writers and film producers.

ASSIGNMENT OF RIGHTS: PERSISTING ECONOMIC PROTECTION AND POTENTIAL EXPLOITATION

If non-applicability of Section 17 and copyright in screenplay belonging to the writer is established as the legal position in the industry, it would leave licensing and assignment as the only avenues for producers to acquire rights for incorporation of the literary work in the film.

Considering the stronger bargaining power of producers, the route of Assignment of rights is likely to become the prevalent practice because it gives control over future utilization of underlying works to the producers. The benefit of the 2012 amendments comes here in the form of the third proviso section 18. This ensures that the authors cannot assign or waive their right to receive royalties on an equal basis for the utilization of the literary work except in communication of the film through a cinema hall.

However, this protection does not preclude the possibility of an exploitative assignment agreement in the beginning itself, for incorporation of the literary work in the film. In Solflicks v. Zee Entertainment, the author of the screenplay assigned copyright to the producer under a Development Agreement, with the producer executing a Production Agreement which made the author a line producer. This production agreement was later terminated by the producer claiming ‘creative discontent’. Post-termination, the suit filed by the author to claim copyright failed due to the comprehensive assignment under the separate Development Agreement. Thus, the producer denied the position of line producer to the author which was a consideration for the initial assignment.

This points to the limitations of legislative efforts in resolving the exploitative practices of the industry. They occur because of the skewed bargaining power in favor of film producers. In the American experience, even with a lack of statutory protections for authors, the degree of exploitation is not alarming because of strong union and collective bargaining mechanisms. A similar strong collective bargaining mechanism can be a more effective solution to reduce the plight of screenwriters in India.

CONCLUSION

Though the conclusion reached in RD Bansal is an assertion in equity of author’s rights in an exploitative industry, the reasoning adopted stands on the thin defense of distinction with the facts in IPRS. It is vulnerable to challenges adopting an expansive reading of IPRS and Salim Khan. This is a possible reason for the non-use of RD Bansal as a precedent in any case yet. However, whether an adoption of the reasoning and legal position in the decision happens in further cases to come is yet to be seen.

With all challenges by competing interpretations of Section 17, the decision in RD Bansal is still a bold attempt to grant authors the right to the screenplay written by them. Moreover, the reasoning creates a broader deviation from the IPRS position and extends the conclusions of the 2012 amendments retrospectively without explicitly mentioning it. However, even if this approach becomes the established legal position, it will not preclude an exploitative assignment agreement in favor of the producers. A more sustainable solution to the economic exploitation in the industry lies necessarily in looking beyond initial legal rights and safeguards.