PROCEDURES FOR EXAMINATION AND ANALYSIS OF CINEMATOGRAPH FILM IN INDIA

 

As per section 2(y)(ii) of copyright act, 1957 – A ‘work’ means 'a cinematograph film' and as per section 2(c) of Cinematograph Act, 1952 – ‘Cinematograph’ includes any apparatus for the representation of moving pictures or series of pictures.  

Section 2(f) of copyright act defines cinematograph film as any work of visual recording and includes a sound recording accompanying such visual recording and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography including video films and according to Section 2(xxa) of copyright act, Visual recording means the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.

So, According to definitions above we can define Cinematograph film as any sequence of visual images recorded on material. The definitions encompass all known means of recording visual images including film, videotape etc. Recordings of a video game or animations are moving images and will also be considered as cinematograph film. Similarly, Video recordings of choreography/dance performances/classroom lectures/public delivery of lectures will also be considered cinematographic films.

Term of Protection for Cinematograph works – As per section 26 of copyright act the term of protection for cinematograph films is 60 years. The term of protection starts from the year which follows the year in which the work was published first. 

DOCUMENTS REQUIRED FOR REGISTRATION OF CINEMATOGRAPH FILM:

• Application for Registration of Copyright – FORM XIV
• Statement of Particulars (SoP) – While examining the applications for registration of sound recording or cinematograph films, apart from regular examination, the following three columns in particular need to be examined with attention:

1. Column 2 - Column 2 specifies the name of the entity in whose name the copyright will be registered. This entity can be an individual, body corporate, or any other organization.
2. Column 7 - Column 7 specifies the name of author. As per section 2 (d)(v) of copyright act, In case of a cinematograph film, the producer can be the author. Therefore, the name of the producing company can appear in this column.
3. Column 11 - In. Column 11 of the SoP, names, address and nationalities of the owners of various rights comprising the copyright in the work and the extent of rights held by each, together with the particulars of assignments and license, if any need to be mentioned.

• 02 copies of the work and 01 copy in case where work is published
• Power of Attorney if filing through an advocate or an individual other than the applicant or else every application should be signed only by the applicant, who may be an author or owner of right as per Rule 70 (3) of the copyright Rules 2013.
• No Objection Certificate (NOC) or an agreement from various other persons involved in the creation of work. This is not needed if the applicant is the sole creator of the work. Works like cinematograph films are made with contributions from various persons such as lyricists, music directors, composers, script writers, performers, singers, dancers, actors etc. All these persons have rights in the work to the extent of their contribution in the work. Therefore, a no objection certificate or an assignment agreement is needed from all these persons in favour of the applicant.
• NOC/Agreement from the publisher if publisher is other than the applicant.
• Both Form XIV and SoP must be signed by the applicant who may be the author/owner of the right as per Rule 70 (3) of Copyright Rules, 2013.
• Statement of Further Particulars (SoFP) is not necessary in case of cinematograph film.
• Original/notarized copy of the affidavit – when applicant is the sole creator of the work, an affidavit, stating that applicant is the sole creator of the work and no other person holds any rights in the work, is needed to be submitted with the application.

PUBLICATION AND FEES OF A CINEMATOGRAPH FILM: 

As per section 3 of copyright act, a work is considered published when it is made available to the public through communication or issue of physical copies. Communication to public means making the work available for being heard, seen, or enjoyed by the public (other than by issuing physical copies of it). The communication may be direct or by any means of display or diffusion. The communication can be simultaneous or at individually chosen places and time. Communication through satellite, cable, or any other means of simultaneous communication to more than one household or place of residence is deemed to be communication to the public.

Fee for cinematograph films is INR 5,000 per work. Accordingly, the applications for registration of cinematograph films must be accompanied by the corresponding fee. Fee Can Be Paid By Postal Oder /Demand Draft/Online Payment Payable To “Registrar Of Copyrights, New Delhi”. A separate application needs to be filed for each work and separate fee needs to be paid however there is no restriction on the number of works that can be registered at any given time.

COMMONLY OBSERVED ISSUES:

A single CD/Flash Drive containing multiple videos

As per Rule 70 (2) of the Copyright Rules, 2013 every application shall be in respect of only 01 work. So, if in case applicant has paid separate fee for each video and filed separate applications with different diary numbers and for the sake of convenience, submitted all the videos in a single CD/Flash Drive then it is acceptable to submit different videos in a single CD/Flash drive and in absence of provisions/rules stating otherwise and a discrepancy letter should not be sent to the applicant on this basis but if the applicant has paid the fee only in respect of 01 application and filed only one application in respect of all the videos submitted then a discrepancy letter can be sent to the applicant, stating that the work submitted consists of multiple videos and only one video can be registered against the present payment of fee and present diary number. The discrepancy letter should also ask the applicant to specify which video they wish to get registered against the present diary number. This is because section 2 (y) of copyright act clearly states that 'work' means 'a' cinematograph film thus only 01 video can be registered against submission of a single application and payment of a single fee. If applicant had earlier sent multiple works in a single CD/flash drive and upon seeking clarification, the applicant states that they wish to apply for registration in respect of one work only, then the applicant should be asked to submit a new CD/flash drive containing only that work in respect of which they seek registration.

Blacking out the Consideration Amount

Section 19 (3) of copyright act states that an assignment agreement must specify the amount of royalty or other consideration payable to the author or his/her legal heirs. Therefore, blacking out of consideration amount is not acceptable and assignment agreements must clearly reflect the consideration amount.

Mismatch of Title

In case of cinematograph films, we look for the title when checking the work submitted for registration. If the title appears either on the work submitted (eg. on the CD cover/CD itself) or in the cinematograph film, it is acceptable. If the title does not appear anywhere at all or is completely different from the one stated on the Statement of Particulars, it gives rise to a discrepancy.

Sending Photocopies of Agreements

Original copies of assignment agreements/Licensing Deeds/NOCs should be sent along with the application. Alternatively, notarized copies of agreements/NOCs can also be sent. However, there may be cases where multiple applications for registration of cinematograph films are filed by the same applicant and the parties, consideration, and other terms of the agreements/NOCs are the same for each work. In cases like these, the same agreement is entered into by both parties and therefore, it is acceptable if the application is accompanied by original notarized copies of agreements/NOCs.

Filing under Cinematograph Film category for literary works

Only videos/works of visual recordings will be considered for registration under the category of cinematograph film. Even if a literary work is intended to serve as the script for a movie or screenplay for a recorded performance, it will be considered for registration under the literary category only and not under the category of cinematograph film.

Photographs of persons appearing on CDs or CD covers

If a CD or CD cover is imprinted with the photograph of a person, an NOC from such person is not needed if such person does not hold any rights in the work. This is because the copyright in this case is in respect of the audio/visual content and not the artistic content appearing on the CD/CD cover.