Indian Journal of Arbitration Law PDF

Indian Journal of Arbitration Law
Volume I, Issue 1 1 | P a g e
THE SCOPE OF COPYRIGHT ARBITRATION IN THE INDIAN FILM INDUSTRY
Meghna Agarwal & Nishtha Gupta
I. Introduction
With the advent of globalisation and merging borders, the scope of arbitration as a dispute
resolution mechanism has increased manifold. Various industries are realising its significance in
resolving disputes in a cheap, amicable, efficient and speedy manner. Indian film industry is a
multi-million dollar industry, with the most expensive productions amounting to 100 crore
rupees (approximately USD 20 million). Today, the Indian film industry is the highest producer
of movies, producing approximately one thousand movies annually1. It provides employment to
over two million people. By 2001, India’s entertainment industry had attained 30% growth in the
economy.2 This gigantic industry faces a plethora of legal disputes each day. However, the cases
which involve complex issues of copyright, performance rights and distribution rights are rarely
pursued as the Indian legal system cannot guarantee any efficacious remedy in such matters
whereas arbitration, on the other hand, can play a crucial role in solving these disputes.
Bollywood is often accused of copying films, scripts, music or ideas from domestic as well as
international cinema. Some are inspired, some are copied, and some are adapted while others are
sheer replication of the original work. Few notable examples include "Mere Yaar Ki Shaadi Hai"3
which can be termed as a cultural copy of “My Best Friend's Wedding”4, “Wanted”5, which copied
“Pokiri”,6 “Kaante”7, which was the Indian version of “Reservoir Dogs”8 or “Ghajini”9, which took
 Presently pursuing law as V year student in National Law Institute University, Bhopal.
 Presently pursuing law as V year student in National Law Institute University, Bhopal.
1Stefan Lovgren, Bollywood: Indian Films Splice Bom.bay, Hollywood (July 1, 2012),
http://news.nationalgeographic.com/news/2004/01/0121_040121_bollywoodfilms.html.
2UK Film Council, The Indian Media and Entertainment Industry (June 11, 2012),
http://www.ukfilmcouncil.org.uk/filmindustry/india/.
3 Mere Yaar Ki Shaadi Hai (Yashraj Movies 2002).
4 My Best Friend's Wedding (TriStar Pictures 1997).
5 Wanted (Eros International & Sohail Khan Productions 2009).
6 Pokiri (Vaishno Academy 2006).
7 Kaante (White Feather Films 2002).

THE SCOPE OF COPYRIGHT ARBITRATION IN THE INDIAN FILM INDUSTRY
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inspiration from “Memento”10. The music industry is also not untouched by this phenomenon.
The evident examples include the copying of “Pungi” song by Pritam11 from a music composition
of an Iranian band and songs of film “Ashiq Banaya Apne” composed by Himesh Reshammiya.
Until now, the mainstream Indian film industry escaped litigation suits due to lack of awareness
amongst the Hollywood or foreign film or music industry and lack of profit in a suit instituted
though Indian legal system. Bollywood is now being viewed as a lucrative market by the foreign
producers. They have started investing in the Indian film industry and are likely to pursue legal
suits against the Indian film producers. Earlier, Hollywood, Bollywood and Kollywood had
separate and distinct audience, one being unaware of the other. With merging borders and
technological advancement, Bollywood and other industries have come closer now and Indian
audiences also acknowledge foreign movies and music.
The Hollywood producers are also aware of these copyright infringements; however, they
choose not to initiate litigation as it would require great amount of time, money and energy.12
Nevertheless, recently some Hollywood producers have pursued legal suits against Indian film
makers. Fearing possible litigation, the Indian film producers have started purchasing music and
film rights of the original work. These contracts deal mainly with copyright issues. It is
contended that the breach of such contractual obligations will attract litigation and would cost
time and money to the parties in dispute. Moreover, since the Indian Copyright Act favours
imitation over originality, it is difficult for this evolving law to do complete justice to the pleader.
A viable alternative would be to incorporate arbitration clauses in these contracts. This would
not only save the parties time and money but would also ensure that their reputation in the
market remains unharmed, leading to a win-win situation for them. Thus, arbitration is an
effective solution to create a balance between the rights of the creator as well as the rights of the
purchaser. If drafted carefully, the agreement can protect the sanctity of the original work,
creating a well-defined demarcation between imitation and inspiration in the industry.
8 Reservoir Dogs (Miramax Films 1992).
9 Ghajini (Geetha Arts (India) & Reliance Entertainment (Overseas) 2008).
10Memento (Summit Entertainment (USA) & Pathé (UK) 2000).
11Bansal Robin, Pritam To Take Legal Action Against Iranian Band (June 10, 2012),
http://www.hindustantimes.com/Entertainment/Bollywood/Pritam-to-take-legal-action-against-
Iranian-band/Article1-832141.aspx.
12Badam Ramola, Is Bollywood A Hollywood Clone? (July 3, 2012),
http://www.cbsnews.com/stories/2003/06/04/entertainment/main557012.shtml.

Indian Journal of Arbitration Law
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The arbitration mechanism comes as a blessing in disguise for the Indian filmmakers who play a
safe bet on successful works in the field. They usually defend their lack of creativity by shields of
financial uncertainty, insecurity of success and adaption of western values in the Indian society.
Arbitration, in general terms, is a settlement presided by a third party on a dispute between two
or more conflicting parties. The resolution is based on a case by case approach with many types
of relief accessible such as monetary compensation, specific performance and restitution,
injunctions and declaratory suits. To support the international economic development and adapt
to the emerging global scenario, the Arbitration and Conciliation Act, 1996 was enacted. The law
provides a cheap, efficient and speedy alternative to litigation. The present Act applies both to
international and domestic arbitrations, unlike the UNCITRAL Model Law. It, further, goes
beyond the UNCITRAL Model Law in the area of minimizing judicial intervention13.
The arbitration mechanism helps in reducing the risk of transactional commerce and improving
international economic relations. While entering into a business relationship, the business houses
do not foresee its failure. However, no agreement is perfect and unforeseen contingencies may
occur anytime. To deal with such circumstances, it is important to enter into arbitration
agreements. These agreements ensure reliability, pragmatism, promptness and fairness in the
process of dispute resolution.
A process like arbitration assumes special importance for a developing country like India. If
India could develop a strong arbitration base, then it would take care of the speedy disposal of
copyright cases, thus allowing filmmakers or music composers to efficiently protect the rights
over the original work. It would also provide them with an easy recourse at their disposal.
Choosing litigation as a settlement process is a complex and tedious procedure followed in
courts that requires signing and registering numerous documents, even for instituting a simple
suit.14 In a country like India, where the courts are filled with backlog cases, proceedings are
time-consuming and matters go on for years, with the film-making industry involving millions of
dollars, pursuing copyright litigation would be a daunting task. The copyright law in India is
liberal in its construction of the definition of ‘copyright’ itself ; ADR in such situation comes as
an efficacious remedy for the parties that cannot afford to lose time in ‘avoidable litigation’ and
13 S K Dholakia, Analytical. Appraisal of the Arbitration and Conciliation (Amendment) Bill, 2003, 39 ICA’s ARB.
QUAT. 3 (2005).
14 Law Commission of India REP. NO. 131, at 7 (1988).

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are eager to settle the matter, forget it and move forward in their respective pursuits without any
waste of time.15
Another key point in the copyright issues is confidentiality. Since Indian filmmakers are alleged
with charges of copying the plots, ideas and music from their original creator, it can be a matter
of goodwill and market reputation for the maker and can place work, worth millions of dollars,
at stake. The claim could make or break one’s professional existence in the industry. Hence,
confidentiality and privacy are the biggest advantages of arbitration, together with party
autonomy, speed and informality that makes it a better alternative dispute resolution mechanism
for Indian filmmakers. Privacy is a deeply established custom in arbitral proceedings which
concerns the right of the parties to not divulge confidential facts or any other information to
third parties and not to make the dispute public which is a legal obligation on the part of their
representatives and the arbitrator. Arbitration is essentially a private dispute settlement
mechanism that does not attract media attention or hurt the feelings or reputation of the parties.
The paper makes an attempt to investigate the possible legal discourse in the current scenario to
settle the dispute wisely by opting for an arbitration agreement for buying rights of the movie or
music. It further observes the effect of litigation in the light of recent legal controversies
surrounding Bollywood. It also analyzes how arbitration can rescue the producers, directors,
writers and music composers of Indian film industry, if they choose to incorporate arbitration
clauses in the contracts entered by them to buy the rights in the original work.
II. Copyright Laws in Indian Film Industry
Bollywood has time and again copied and imitated film scripts from both national and
international cinema. The recent controversy between Kollywood and Bollywood surrounding
Ladies v. Ricky Bahl is yet another example.16 In cases involving copyright issues, the producers
can take benefit of various legal provisions under the Indian Copyright Act, 1957 to escape
liability.
15G Gandotra, “Arbitration and Conciliation Act, 1996: Need for a few Amendments”, 51(1) SEBI & CORPORATE
LAWS 188 (2004).
16“Naan Avan Illai”, a hit Tamil movie in 2007; a lawsuit was filed in Madras High Court on 8 December
2011.