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Madhav Puri,
Panjab University
Preface:
The entertainment sector, reliant upon innovation and uniqueness, necessitates robust intellectual property safeguards for artists, musicians, filmmakers, and related practitioners. This discourse aims to elucidate the significance of intellectual property within the entertainment domain, delineate its various forms, and furnish comprehensive directives for safeguarding creative endeavours.
Intellectual property (IP) is a category of property that includes intangible creations of human intellect.[1] The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in most of the world's legal systems.[2]
It consists of both moral rights, which defend the author’s honour and reputation, and economic rights, which permit the author to profit materially from their works. [3]
Additionally, investments in intellectual goods suffer from appropriation problems: Landowners can surround their land with a robust fence and hire armed guards to protect it, but producers of information or literature can usually do little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.[4]
In my interpretation, Intellectual Property encompasses creations of the intellect, including but not limited to inventions, literary and artistic works, designs, symbols, names, and images utilized in commercial activities. Within the entertainment sector, Intellectual Property assumes a critical function in protecting creator’s and guaranteeing acknowledgment and financial remuneration for their contributions.
Genesis into Contemporary Embodiment:
The Venetian Patent Statute of March 19, 1474, established by the Republic of Venice is usually considered to be the earliest codified patent system in the world. The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of the current patent law and copyright respectively, firmly establishing the concept of intellectual property.[5]
The first known use of the term intellectual property dates to this time, when a piece published in the Monthly Review in 1769 used the phrase. The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays.
According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift."[6]Similarly, it is based on these background that the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement requires members of the WTO to set minimum standards of legal protection, but its objective to have a "one-fits-all" protection law on Intellectual Property has been viewed with controversies regarding differences in the development level of countries.[7]
Incipient Confrontations in the Digital Epoch:
The onset of digital technologies has engendered a paradigm shift in the dissemination and consumption of entertainment content, thereby engendering a confluence of opportunities and challenges vis-à-vis the safeguarding of intellectual property. The prevalence of online piracy, unauthorized distribution channels, and the burgeoning proliferation of user-generated content platforms represent formidable impediments to the preservation of the sanctity of intellectual property rights within the digital milieu. Moreover, the transnational character of cyberspace exacerbates the complexities surrounding enforcement endeavours, thereby mandating augmented collaboration among jurisdictions and vested stakeholders.
Several pivotal international legal frameworks and conventions pertaining to Intellectual Property Rights (IPR):
Ø The Berne Convention for the Protection of Literary and Artistic Works (1886):
This convention codified fundamental precepts governing the safeguarding of copyright for literary and artistic works. It delineates minimum standards for copyright protection and mandates reciprocal recognition of protection among member states, ensuring automatic entitlement to protection for creators from signatory nations in other member jurisdictions.
Ø The Paris Convention for the Protection of Industrial Property (1883):
This convention comprehensively addresses diverse facets of industrial property, encompassing patents, trademarks, industrial designs, and trade secrets. It establishes foundational principles governing the protection of intellectual property rights and fosters international collaboration in the realm of industrial property.
Ø The World Intellectual Property Organization (WIPO) Copyright Treaty (1996) and the WIPO Performances and Phonograms Treaty (1996):
These treaties specifically address the protection of copyright within the digital milieu. They afford enhanced safeguards for authors and performers in the digital era, incorporating provisions pertaining to technological protection measures and rights management information.
Ø The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994):
Forming an integral part of the World Trade Organization (WTO) framework, this agreement establishes baseline standards for the protection and enforcement of intellectual property rights. It encompasses various dimensions of intellectual property, including copyright, trademarks, patents, and trade secrets.
Ø The Patent Cooperation Treaty (PCT) (1970):
This treaty streamlines the process of filing patent applications across multiple jurisdictions.
It institutes a unified procedure for the submission and examination of patent applications, facilitating international patent protection for applicants seeking patent rights on a global scale.
Ø The Madrid Agreement Concerning the International Registration of Marks (1891) and the Madrid Protocol (1989):
These agreements institute an international framework for the registration and administration of trademarks. They furnish a simplified mechanism for trademark proprietors to pursue protection in multiple countries through a singular application process.
Ø The Hague Agreement Concerning the International Registration of Industrial Designs (1999):
This agreement introduces a streamlined procedure for the international registration of industrial designs. It enables applicants to secure protection for their designs across numerous jurisdictions via a unified application mechanism.
Copyright Infringement: An Illustrative Case Study for Educational Purposes:
Filmmakers are obligated to pay dues for using songs by other lyricist or musician in their film. In case of a “remixed song” or a “movie remake”, both the music composer and filmmaker respectively, have to pay dues to the original creator, failing to which they can be sued for copyright infringement.
For instance, in October 2019, music composer, Dr Zeus accused the makers of the Bollywood film Bala of copyright infringement. The British artiste claimed that his hit number Don’t Be Shy was recreated in the film without his permission, further accusing the makers of Bala of plagiarising his work.
The makers of Bala later released an official statement claiming that they had completed the due process of acquiring the copyrights from ‘Karman Entertainment’; the company that owns the worldwide rights to the song in question. The film production company, ‘Maddock Films’, further claimed that Karman Entertainment gave them an official license to recreate the song. This made it possible for the filmmakers to include the song in their movie, without having to pay any additional fees.
However, the Bala filmmakers could have been sued for copyright infringement had the filmmakers not sought the copyrights to recreate or even use the musical notes/tunes in their film.
Today, more film producers are filing for intellectual property rights in the entertainment industry to safeguard their creations and prevent others from benefiting through their creations. The Censor Board of India and other film bodies are creating laws to help film artiste’s literary creations. It is laws like these that are preventing film-makers and music directors from “borrowing” or “imitating” others’ original, creative works. Such laws ensure that the original creators get both, credit and monetary benefits when their creations are used by other film-makers, thus protecting their rights.[8]
Thus, the significance played by the IP Laws in domestic as well as international context is crystallised and a clear picture come s into play.
Conclusion:
Preservation of intellectual property within the entertainment sector is paramount for artists, musicians, and other creative practitioners. Through comprehensive comprehension of varied intellectual property classifications and adherence to the procedural guidelines delineated herein, individuals can fortify their entitlements, secure equitable acknowledgment, and optimize financial gains. It is advisable to seek counsel from a proficient attorney for tailored advice pertinent to individual requirements and circumstances.
In synopsis, intellectual property rights are a fundamental element within the entertainment sector, serving to uphold the creative efforts of artists, musicians, writers, and other contributors. These rights not only safeguard their intellectual creations but also incentivize inventiveness and originality by providing creators with a framework for the commercial exploitation of their works. Nevertheless, the ever-evolving digital landscape presents new challenges, such as piracy and unauthorized dissemination, emphasizing the necessity for robust enforcement mechanisms and international cooperation. Achieving a balance between the protection of intellectual property and the promotion of accessibility and innovation remains an enduring imperative for legislators and stakeholders. Ultimately, fostering an environment conducive to creators' interests while simultaneously respecting consumer rights stands as a fundamental principle for the sustained advancement and vitality of the entertainment industry in the digital era.
REFERENCES:
[1] World Intellectual Property Organization (WIPO) (2016).
[2] Mark A. Lemley, Property, Intellectual Property, and Free Riding, Wayback Machine, Texas Law Review, 2005, Vol. 83:1031, page 1033, footnote 4.
[3] Ojukwu, Ebele V., Young Sook Onyiuke, and Chinyere C. Esimone. “Intellectual property rights enforcement in Nigeria: A prop for music industry.” US-China Education Review B 5.6 (2015): 373-381.
[4] Goldstein & Reese (2008), pp. 18–19.
[5] Ladas, Stephen Pericles (1975). Patents, trademarks, and related rights: national and international protection. Cambridge, Mass: Harvard University Press.
[6] Morin, Jean-Frédéric. "Paradigm shift in the global IP regime: The agency of academics, Review of International Political Economy, vol 21-2, 2014, p. 275.
[7] Roisah, Kholis (26 December 2017). "Understanding Trade-Related Aspects of Intellectual Property Rights Agreement: From Hard and Soft Law Perspective". Hasanuddin Law Review. 3 (3): 277–289.
[8] IPTSE, https://iptse.com/intellectual-property-rights-and-entertainment-industry/, last accessed on 12/02/2024.
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