Adaptation v/s Copyright Infringement

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The word ‘adaptation’ connotes innocence. The minute we hear or read this word, we pass it off as something that is an innocent or general attempt to recreate a piece of work that has already been produced or composed and appreciated. The adaptation of any work signifies a bona fide replication of the original. But, is it always done in good faith?

The right to adaptation of an original work emerges from the grant of copyright to the same. It is an empowering right, as it gives the author not only the authority over his/her work, but also the freedom to present it to the audience, in the way he/she deems fit. The law fully protects the composer or author as he/she has full suzerainty over the details of the piece of art and no one can infringe upon it, without inviting legal consequences.

Adaptations, in India, are governed by section 14 (a)(vi) of The Copyrights Act, 1957. The author is in complete control of the work and how it is produced or reproduced. The owners of copyrights also have the right to assign the copyright of the work, to third party individuals. This gives the author the freedom to choose and the assign the rights over his work, in a manner which both parties may deem fit. This ultimately leads to the execution of a Licence Agreement. As per Section 30 of the Act, the author of the copyright can assign the rights over his work to another, via a valid Licence Agreement.

Adaptation is very common in case of cinematograph films. Several films or television shows are based on popular novels or plays. The intention of the author or the producer is to display or narrate the story, at a larger scale. The most recent example is that of Game of Thrones, a widely acclaimed and an extremely popular television show that gained accolades globally. Based on the book, A Song of Fire and Ice, by George R.R. Martin, they are a series of fantasy novels, converted into a successful television show. From an Indian perspective, movies like ‘Khoobsurat’ or ‘Laila Majnu’ are adaptations of older counterparts. Also, television shows like ‘Saraswatichandra’, which is based on a popular novel with the same name by Govardhanram Tripathi or Sudha Chander, which is based on the iconic novel called ‘Gunaho Ka Devta’ by Dharamvir Bharati, are products of adaptations of originals. Often, one hears modern adaptations of retro songs, which were magnanimous hits in their era of release.

Now, it is assumed that for every adaptation or “inspiration”, in India, there must be, or rather, there should be, a Licence Agreement in place, which validates and legalises this transaction of ideas. For e.g. the Hindi remake of Bengali film ‘Rajkahini’ which was titled and released as ‘Begum Jaan,’ in pursuance of a licence agreement executed between the makers of the respective movies. But, what about the “inspirations” which are drawn from Hollywood or western movies?

It has been an on-going trend that Bollywood film industry has heavily borrowed material or stories and has remade them in hindi language, under the banner of ‘remake.’ Several popular hindi movies are remakes of successful western or Hollywood movies. Earlier, this phenomenon was not given the importance it deserved. However, ever since the entertainment has gained a global colour, the western movie producers are becoming wary of the unlicensed and unethical copies or remakes of their movies. In the absence of any valid agreement between producers, this practice is strongly indicative of copyright infringement. Hence, now, the producers are compelled to take stringent steps to curb this practice as it is a heavy and turbulent loss of ideas and creativity. One such famous example is that of ‘Hari Puttar’ which was the hindi conversion and adaptation of the title ‘Harry Potter.’ This unethical use of the famous trademark sparked a debate and bought the trend of lifting content from the west, to the limelight. Several well known Bollywood movies like ‘Ghajini’, ‘Partner’, ‘Bang Bang’, have been remakes of successful Hollywood movies.

In the case of R.G. Anand v. Delux Films, the Supreme Court, while adjudicating upon such questionable infringement, adopted the test ‘ordinary-observer test.’ This test was first laid down by an American court in the case of Daly vs Palmer, which states that if after watching the movie, an unmistakable impression is made on the mind of an ordinary reasonable man that it is a copy of another, it would constitute infringement. However, this test was further evolved in the case of Twentieth Century Fox Film Corporation v. Zee Telefilms, where it was stated that the infringing material must be looked at individually, then as a whole- if the theme was the same, however, the presentation was done in an entirely new manner, one could hardly call it infringement. This point has been used by the film industry extensively as the plot of the movie might be the same, but the presentation is where it is declared as “different.”

Conclusion:

In the current scheme of things, it is indicative that there is a serious lacuna for laws that deal with situations where, under the garb of adaptation, there is an audacious and repetitive attempt to infringe the works which are copyrighted.  Because, at the end of the day, it is not just about the original words, songs, notes or colours, it is about the creativity, time and the passion that has gone into making something remarkable and irreplaceable.

Author: Sharmeen Shaikh, Legal Intern at Global Patent Filing. In case of any queries please contact/write back to us at support@globalpatentfiling.com.