Before any major discourse on copyright regime, it becomes very important to know the definition of ‘author’. Who constitutes an author is very essential to understand. The entire regime of copyright law revolves around granting certain privileges to creators of literary, dramatic, musical, artistic works and derivative works like cinematograph films and sound recordings.
Copyright regime was brought in to recognise, incentivise and encourage the beautiful creations of the creators. These creators under the Act are called authors. Section 2 (d) of the Act defines author in each category of works. In case of literary and dramatic work, it is considered to be author, which may be in case of literary work be construed as author and in case of dramatic work be construed as the dramatist.
In case of musical work, the author is the composer and in case of artistic work other than a photograph it is the artist who is considered to be the author. For example, in case of a painting or sculpture, it is the artist which is the painter and the sculptor respectively who will be considered to be the author. In case of photographs, it is the photographer who is considered to be the author.
Derivative works
Two derivative works are also protected under the copyright regime in India. They are cinematograph films and sound recordings. In case of cinematograph films and sound recordings, it is the producer who is considered to be the author.
Difference between Primary and Derivative Works
The confusion
If the whole idea of copyright is to recognise and protect the rights of creators of the aforementioned six categories of works, how justified is it to recognise the producer as the author of films and sound recordings. Are producers the real creators of cinematograph films? Film is something that is the end result of creative inputs of many category of creators, many, of whom gets protection under the primary work category. For example, a composer of the music of the movie or the scriptwriter. However, who transforms the work from a mere script to a live movie. The answer is naturally the director. Sadly, directors are a class that is totally neglected under the copyright Act.
Attempts were brought in to include at least the principal director as a joint author of films before the 2012 amendments to the copyright Act but the producer lobby was too strong to let it happen. Eventually the 2012 amendments did not bring the necessary change to recognise directors as author of films.
Why producers were considered as ‘authors’?
This brings us to the debate between common law and civil law systems so far as copyright is concerned. The civil law countries followed authors’ rights system which gave predominance to the rights of the author, whereas, the common law countries followed the copyright system which emphasised the rights of the person who invested labour and capital while creating a copyrighted work. Hence, if a person is employed by a newspaper, the copyright of the articles written by the person so far as authors right system is concerned will be given to the person, i.e., the author, whereas, in the copyright system, since the newspaper had employed him, the copyright will be granted to the newspaper.
What can be seen in the Indian copyright system is that it has borrowed both from the civil and common law systems. However, largely, the tilt is towards the common law system.
Conclusion
Even though cinematograph films are derivative works, it is important to understand that the whole idea of copyright is to recognise and protect creativity. The copyright regime is justified on the ground of encouraging and incentivising the creative person. On the contrary, the definition of author of cinematograph films only includes producers. Section 2(u) defines producer in relation to a cinematograph film or sound recording as a person who takes the initiative and responsibility for making the work. In the case of Gee Pee Films v. Pratik Choudhary, it was held that responsibility in context to producers mean financial and consequent legal responsibility. If we look into the making of films, it is the director who puts in the creativity. An audience watches the movie from the perspective of a director. Hence, to neglect the contribution of the director is not justified under the copyright Act.