By SHAIWAL SATYARTHI
Copyright is a property right. Although it differs from most other forms of property in that it is intangible, it nevertheless has the essential elements of property and is governed by the principles of property ownership
The Berne convention appears to leave a total Freedom to signatory states.[1] There is no definition of the term author in the convention and its usual meaning is still the subject of controversy.[2] In addition, when it comes to cinematographic works, the convention clearly avoids the questions of authorship and original entitlement to copyright and tackles film protection in terms of ownership.[3] This compromise indicates that a conventional concept of the author as the 'natural person who has made the work[4] could be departed from in relation to cinematographic works and that the producer, individual or body corporate, employer or commissioner, could be granted authorship by signatory states.[5]
However in UK, for films made from July 1, 1994 onwards the directive requires the Principle director of a film to be considered one of its authors. Film making, has today acquired an irreversible status as an art - form and the Directive acknowledges the clear case of Directors to be treated as authors. The acceptance of their case revolves one of the major conflicts between British copyright and continental author's rights.[6]
Almost all author's Rights system have now reverted to a system of creative authorship for films, which will be described in detail below. Although the list of film co-authors varies, the film director is the only contributor who is always recognized as the author or one of the authors of the film. It is important to note, however, that pre-eminence of the film director over other contributors is a recent phenomenon. It can be seen as a consequence of the ideas on film authorship developed in the 1950s in France.
Following the success of sound movies, in the 1930s and the 1940s, the director as creator became secondary to the writer. This conception of the director as a mere technician was clearly adopted in Europe in pre-war case[7] law and legal literature. In this respect it is interesting to observe that, under the list of co-authors set by the Italian Copyright Act of 1941 and the French Copyright Act of 1957, the director comes last, the first author mentioned being the scriptwriter. Then, so called auteur theory initiated by French film critics came in lime light.[8] To a large extent, the theory itself appears to be a late application to film studies of the concept of romantic authorship. But if by attention to the inclusion of Hollywood cinema the theory was beneficial to film studies, the rise in importance of the director was detrimental to other contributors, especially scriptwriters. The director was to emerge as a leading figure in the eyes of film critics and remains so for the public today, despite attacks of later film studies theories.[9] Clearly a film is now defined by the name of its director, whereas before the 1990s it was defined by the name of the scriptwriter, the acting star or the producer.
Almost all author's Rights system have now reverted to a system of creative authorship for films, which will be described in detail below. Although the list of film co-authors varies, the film director is the only contributor who is always recognized as the author or one of the authors of the film. It is important to note, however, that pre-eminence of the film director over other contributors is a recent phenomenon. It can be seen as a consequence of the ideas on film authorship developed in the 1950s in France.
Following the success of sound movies, in the 1930s and the 1940s, the director as creator became secondary to the writer. This conception of the director as a mere technician was clearly adopted in Europe in pre-war case[7] law and legal literature. In this respect it is interesting to observe that, under the list of co-authors set by the Italian Copyright Act of 1941 and the French Copyright Act of 1957, the director comes last, the first author mentioned being the scriptwriter. Then, so called auteur theory initiated by French film critics came in lime light.[8] To a large extent, the theory itself appears to be a late application to film studies of the concept of romantic authorship. But if by attention to the inclusion of Hollywood cinema the theory was beneficial to film studies, the rise in importance of the director was detrimental to other contributors, especially scriptwriters. The director was to emerge as a leading figure in the eyes of film critics and remains so for the public today, despite attacks of later film studies theories.[9] Clearly a film is now defined by the name of its director, whereas before the 1990s it was defined by the name of the scriptwriter, the acting star or the producer.
On the other hand the British government indicated that it would implement this obligation by creating an admixed, author-cum-neighbor, copyright for films. If this proves to be the manner in which the Duration Directive is incorporated into British Law, copyright in film will be given jointly to the producer and to the principal director. This must count as the ultimate hybrid among intellectual property rights and it demonstrates a thoroughly British determination not subscribe to the author's right-neighboring right dichotomy.[10]
If one puts on one side the correlative enhancement of term the impending change in the director's copyright status may be of greater ideological than practical consequence. In the first place, the principal director's entitlement is subject to the general rule that works created in the course of employment are prima facie the property ab initio of the employer, and, secondly, even directors who are commissioned rather than employed must normally expect to assign copyright to their producers, if they have an extraordinary reputation they may contract to do this on royalty-sharing or other special terms. The additional prestige which directors may derive from attaining the rank of author is subtle. Over time if it may well contribute to their earning power as a class but they are likely to be helped at least as much by collective action, either in the form of trade union pressure or the institution of collecting societies to enforce their rights directly against users.[11]
However in Australia also, the Australian Copyright Council had made his submission on film director’s copyright.[12] They support the recognition of film director's authorship in relation to the economic rights in a cinematograph film. Their proposal is as follows-
1. where a film has a Principal director, the Principal director be deemed to be the author of the film
2. for some films, there may be no principal director
3. where there is a principal director, the copyright in the film would be first co-owned by:
(i). the director, or the director's employer, or the assignee of the director's future copyright interest, and
(ii). the maker, or the person who commissioned the maker to make the film, or the assignee of the maker's future copyright interest.
4. Where there is no principal director, the copyright would be first owned solely by the 'maker' or the person who commissioned the maker to make the film, or the assignee of the maker's future copyright interest;
5. In some cases, the same person may be the first owner of both the maker's interest and director's interest
6. The current definition of 'cinematograph film' would remain
7. In addition to the current bases on which copyright may subsist in a film, copyright would also subsist if the director were a citizen or resident of Australia, or of a country listed in the International Protection Regulations.
8. If the film has a Principal director, the period of protection would be the life of the director plus 50 (or 70) years; in other cases, the period of protection would be 50 (or 70) years from first publication
9. The rights applying to films would remain the same as would the exceptions to those rights; and
10. The new provisions would apply to films made after amending legislation.
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1. where a film has a Principal director, the Principal director be deemed to be the author of the film
2. for some films, there may be no principal director
3. where there is a principal director, the copyright in the film would be first co-owned by:
(i). the director, or the director's employer, or the assignee of the director's future copyright interest, and
(ii). the maker, or the person who commissioned the maker to make the film, or the assignee of the maker's future copyright interest.
4. Where there is no principal director, the copyright would be first owned solely by the 'maker' or the person who commissioned the maker to make the film, or the assignee of the maker's future copyright interest;
5. In some cases, the same person may be the first owner of both the maker's interest and director's interest
6. The current definition of 'cinematograph film' would remain
7. In addition to the current bases on which copyright may subsist in a film, copyright would also subsist if the director were a citizen or resident of Australia, or of a country listed in the International Protection Regulations.
8. If the film has a Principal director, the period of protection would be the life of the director plus 50 (or 70) years; in other cases, the period of protection would be 50 (or 70) years from first publication
9. The rights applying to films would remain the same as would the exceptions to those rights; and
10. The new provisions would apply to films made after amending legislation.
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References:-
[1] Allen Kent and Harold Lancour, Copyright: Current viewpoints on History, Law, Legislation, London and New York, R.R. Bowker Co. 1972 at p. 8
[2] Supra note 59 at pp. 630 - 631.
[3] Art. 14bis 2(a)
[4] R. Ricketson, The Berne Convention on the Protection of Literary and Artistic Works, London, Kluwer Publication, 1987, p. 159.
[5] Ibid.
[6] Peter Graham (ed.), The New Wave, London, Secker & Warburg,1 968 at p. 342
[7] Guerlais V. Roubaud, Gazette do palais, 936, IP p. 691 as cited in Pascal Kamina, "Film Copyright in the European Union", Cambridge, Cambridge University Press, 2002 at p. 155.
[8] Peter Graham (ed.), The New Wave, London, Secker & Warburg,1 968 at pp. 17-23.
[9] Ibid at p. 156
[10] Ibid at p. 342
[11] Ibid.
[12] "Submission on Film Director's Copyright" available at http://www.copy right.org.au
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[1] Allen Kent and Harold Lancour, Copyright: Current viewpoints on History, Law, Legislation, London and New York, R.R. Bowker Co. 1972 at p. 8
[2] Supra note 59 at pp. 630 - 631.
[3] Art. 14bis 2(a)
[4] R. Ricketson, The Berne Convention on the Protection of Literary and Artistic Works, London, Kluwer Publication, 1987, p. 159.
[5] Ibid.
[6] Peter Graham (ed.), The New Wave, London, Secker & Warburg,1 968 at p. 342
[7] Guerlais V. Roubaud, Gazette do palais, 936, IP p. 691 as cited in Pascal Kamina, "Film Copyright in the European Union", Cambridge, Cambridge University Press, 2002 at p. 155.
[8] Peter Graham (ed.), The New Wave, London, Secker & Warburg,1 968 at pp. 17-23.
[9] Ibid at p. 156
[10] Ibid at p. 342
[11] Ibid.
[12] "Submission on Film Director's Copyright" available at http://www.copy right.org.au
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