There was a time when professional film critics would review a film and inform the awaiting audience if it is a good or a bad film, do the actors perform well in it or if it is a film worth to spend money on along with a subtle hint about the plot. Such reviews contained the suspense about the film among the viewers. However, nowadays there is less drive in people to go and watch a film. While illegal live streaming of films is an active reason for this loss in audience the other passive reason responsible for such reduction in a film’s audience is the abundant availability of online film reviews which, as I argue, is a new form of online piracy to which traditional rules of fair use cannot apply.
What is online policy?
any copyright holder (rights in respect of films are covered by Copyright Law) has the exclusive right to distribute, reprint, translate, and license the work created, either as a whole or any part thereof, to anyone and piracy as an act of infringement, is the unauthorized use of the copyrighted work. Online piracy is the extension of the same act but only on web space. Forms of online piracy vary according to the platform they operate on. New addition to the list is, in my opinion, online film reviews. However, theoretically, film reviews are saved by the doctrine of fair use from being constituted as an act of infringement.
Doctrine of fair use
Emancipating from the doctrine of equity, fair use stands as an exception to unauthorized reproduction or use of copyrighted material which would otherwise tantamount to infringement. Section 52 outlays ‘review’ as a form of fair use and penning a film review on whatsoever platform would fall under this category. Basic purpose of section 52, in the form of public interest, is to extend protection to freedom of expression under Article 19(1) of Constitution of India. However, this protection does not operate in absolutism. If the review is an act of infringement, it cannot be permitted merely because it is claimed to be in public interest.
Infringement defined
When it comes to motion pictures, defining an act of infringement is an improbable task. This was set easier in the case R.G. Anand v. Deluxe Films, wherein the court held that literal imitation of copyrighted work, albeit slight variation, would be an act of infringement or in other words, the copy must be a substantial and material one. Substantial and material copying does not have an exhaustive definition to its credit; it is more a matter of facts and circumstances.
New forms of online film review
Digital platform cannot control who writes the ‘film reviews’ or ‘reviews about the film’. There is a hairline difference between both the expressions. While film review stands for the conventional assessment of a film concerning the plot, performance and other things, the latter expression represents this new form of review about the ideology of the film.
Another feather in the cap is live-reviewing a film through a blog post or via twitter. Live-reviewing, traditionally used as a broadcast platform for real-time events like press conferences, sports events or even Oscars for that matter, has become a mode of publicizing the film action-by-action on the same day of its release. For instance, here is a live-review of the film Kaabil and of Badrinath Ki Dulhania available at firstpost.com. These reviews not only post comments about the film but also include verbatim dialogues and scene-by-scene enaction.
Therefore, if we club all the sources together or take them in isolation, then we have an unprecedented form of online piracy, to which our traditional copyright laws will not apply, as the plot, the twists and essentials of the film are out in the open and ultimately a reader of such reviews, like me, does not watch the film. The guidelines set out in R.G. Anand’s case will be inoperative in such a case because firstly, guidelines pertaining to literal imitation or substantial copying as laid down in the case will not cover such reviews; be in isolation or collective. Secondly, this case held plot and themes as not copyrightable but such reviews, as exemplified above, do not just give away the plot rather they provide action-by-action enaction of scenes in the film which are copyrightable per se.
