Geetha Arts, the producers of ‘Magadheera’, have alleged that the “storyline, plot and screenplay” of Raabta has been copied from their film. Soon after, the producers of ‘Raabta’ came out with a public announcement. Through this, they have not only rejected the claims made by Geetha Arts but also emphasized that copyright law protects expression and not ideas, themes and plots.

As per the courts’ earlier dictum in RG Anand:

“Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work.. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.”

The challenge, of course, lies in figuring out what part of the work is an expression that is protected and therefore open to a claim of infringement. But, that too has been aided by several tests such as the lay observer test, scenes-a-faire doctrine and the merger doctrine.

The ‘Merger’ Doctrine

A perusal of most cases of copyright infringement in film (especially the ones by Hollywood producers against Bollywood remakes), reveals that it is often not easy to convince an Indian judge that one cinematographic film has copied another. A research paper on this issue claims that our courts have misunderstood and incorrectly applied the merger doctrine to hold that a number of our Bollywood films are not infringements of Hollywood ones. This is done by classifying the idea in the original film at a rather low level of abstraction i.e. vesting it with more specificity.
The paper argues, “A highly abstract idea…can be expressed in countless original ways. An idea at a lower level of abstraction can also be expressed in many original ways, but in fewer ways than the generic idea. As the idea continues to be defined at a lower level of abstraction, it becomes more difficult to distinguish it from the expression.”

Take the Raabta: Magadheera example

One might argue that the bare concept of reincarnation is a very “abstract” generic idea and can be expressed in a great number of ways – each of which are protectable. At a lower level of abstraction, one might think of a plot involving a couple who were estranged in a previous birth and come together in the present life. This is more “expressive” than the earlier idea of just reincarnation. However, under the courts’ categorization, this would be seen as an “abstract idea” which merges with the expression. Take this further down to appreciate the problem with the courts approach. Another reason that courts refuse to accept cinematographic copyright infringement (and one that greatly piques my interest) is the ‘physical copy’ doctrine that I had covered in passing over here.

Film as a ‘Dramatic Work’?

Similar to our own copyright act, the works in the former subsection must be “original” to qualify for copyright protection. The judge also noted that the definition of films u/s 5B of the act describes films as “a recording on any medium from which a moving image may by any means be produced.” He then opined that a film is a culmination of technical efforts such as editing, which makes the physical sequence such that it can never be recreated in reality. Because of this tendency and the provisions of the act as extracted above, a film was held to be an entity of its own incapable of being classified as a ‘dramatic work’.

A Change in Law?

Coming back to the ‘physical copy’ doctrine, the Calcutta HC rejected its application in the case of Shri Venkatesh Films v. Vipul Amrutlal Shah.The court disagreed with the dictum in Leo Burnett and applied the RG Anand dictum of ‘substantial similarity’ even to films. It held, “It is true that Section.14 (d) of the Act states that infringement of copyright of a film would take place by its copying. That is, in our opinion, only one type of infringement where the physical film or any electronic form of it is ‘carbon copied or replicated’…Infringement has other elements….In that context ‘copy’ has to be given a broad meaning, as held by the Supreme Court in R.G. Anand’s case.”
This seems right. Surely it cannot be the case that films are disentitled to copyright protection, unless someone copied the “physical” copy itself. Studies note that cinematographic films are a culmination of several distinctive efforts.