1. RELEVANT TODAY
T
he Division bench of Delhi High
Court had the opportunity to
deliberate on the aspect of
copyright in future cinematographic work
in the case of Time Warner Vs RPG
NETCOMwherein the Hon'ble High Court
rejected the plea of protection of copyright
in future cinematographic work and opined
as follows:
"that on Reading of the above
provisions of the Act and keeping in mind
the object and purpose behind the Act, it
cannot be said that any right to claim
infringement in a future work exists in any
person before a cinematographic film is
completed. It is only upon completion of
the film that the producer/author of the film
becomes the first owner within the meaning
of Section 17 read
with Section
2(d)(v) of the Act.
As stated before,
a prospective
owner can enter
into an agreement
to assign rights in
a "film" to a third
person but the said
rights are effective
only after the film
is completed and
not before.
Likewise, right to
claim infringement
on the basis of
copyright under
Section 55 of the
"that on Reading of the above provisions of the Act and
keeping in mind the object and purpose behind the Act, it
cannot be said that any right to claim infringement in a future
work exists in any person before a cinematographic film is
completed. It is only upon completion of the film that the
producer/author of the film becomes the first owner within the
meaning of Section 17 read with Section 2(d)(v) of the Act. As
stated before, a prospective owner can enter into an
agreement to assign rights in a "film" to a third person but the
said rights are effective only after the film is completed and
not before. Likewise, right to claim infringement on the basis of
copyright under Section 55 of the Act has been given to an
"owner" as defined in Section 17 of the Act and not to a
"prospective owner". In view of the above it cannot be said
that "films" which have not been conceived or after being
conceived are under production can become subject matter of
an infringement action relating to cinematographic films under
Section 55 of the Act. Existing owners of cinematographic
films cannot under the Act get omnibus interim injunction
order for cinematographic films of which they may become
owners in future. The Act itself does not postulate and give
any such right to the appellants-plaintiffs."
47 AUGUST 2008
Act has been given to an "owner" as defined
in Section 17 of the Act and not to a
"prospective owner". In view of the above
it cannot be said that "films" which have not
been conceived or after being conceived
are under production can become subject
matter of an infringement action relating to
cinematographic films under Section 55 of
the Act. Existing owners of cinematographic
films cannot under the Act get omnibus
interim injunction order for cinematographic
films of which they may become owners in
future. The Act itself does not postulate and
give any such right to the appeliants-
plaintiffs."
US law on future cinematographic work-
Before submitting anything on the US law
on future Cinematographic work; it is
pertinent to refer the relevant provision of
US copyright law concerning the present
matter.
Sec 411 of the Copyright Act 1976
clearly states that no action infringement
can be brought unless the copyright is
registered subject to the conditions provided

2. in Sec106 (A) (a).
Sec 106 (A) (a) only applies to work
of visual art.
It is clearly defined under US law that
motion picture does not fall under the
definition of visual art.
Sec 102 (a) clearly stipulates a
condition that work of authorship to be
eligible for statutory copyright protection,
they must be fixed in any tangible medium
of expression, now known or later
developed, from which they can be
perceived, reproduced, or otherwise
communicated either directly or with the
aid of machine or device.
Nimmer on Copyright states that, "a
live television broadcast is also not a
motion picture, although it does impart an
impression of motion, for the reason that
it is not fixed in any tangible medium of
expression.
Sec 411 (b) states that an
infringement action may be filed, and a
preliminary injunction may be obtained
upon such filing, provided only that a live
transmission with a simultaneous
recordation is contemplated, although at
the time of such filing, the plaintiff's work
has not yet been fixed in the tangible form.
/
RELEVANT TODAY
Thus a
cinematographic
film has three
characteristics.
It has a
sequence of
images, it is
recorded on
material, and it
is capable of
being shown
as a moving
picture.
Columbia Picture industries versus
Robinson wherein the court refused to grant
an injunction extending to copyright in future
films because it was often difficult to identify
the owner or exclusive licensee of film
copyright and it would therefore be
impossible for the defendant to know what
films were covered.
LAW Z AUGUST 2008
After careful examination of the law
pertaining to the present case, there does
not remain even an iota of doubt that at
present US law does not allow any
protection to future cinematographic work.
In US to sue for infringement of
copyright at least, you should have
copyright registration without which you
can't sue and to get registration you have
to deposit the work and you can't deposit
the work unless it is completed.
It is also very clear that infringement
action can only be brought if the work is
fixed in tangible form except the transmitted
work of live performance.
UK law on future cinematographic
work-It is pertinent to examine the CDPA
1988 before making any opinion as to the
UK law on future cinematographic work.
Sec 1 of CDPA 1988 states that
copyright is a property right which subsists
in accordance with this part in the following
descriptions of work-
sound recordings, films, broadcasts or
cable programmes, and
Sec 5B defines film as follows- In this
part, "film" means a recording on any
medium from which a moving image may
by any means be produced.
Sec 171 (2) states that subject to those
savings, no copyright or right in the nature
of copyright shall subsist otherwise than
by virtue of this part or some other
enactment in that behalf.
In Spelling Goldberg productions Inc v
B.P.C Publishing Ltd Court of Appeal laid
down three ingredients of cinematographic
film that are as follows.
"Thus a cinematographic film has three
characteristics. It has a sequence of
images, it is recorded on material, and it is
capable of being shown as a moving
picture."
Only that work could be protected as

3. RELEVANT TODAY
In US to sue for infringement of
copyright at least, you should
have copyright registration
without which you can't sue
and to get registration you have
to deposit the work and you
can't deposit the work unless it
is completed. It is also very
clear that infringement action
can only be brought if the work
is fixed in tangible form except
the transmitted work of live
performance
film, which is recording on any medium from
which moving image may be produced, thus
film can only be protected if it has reached
to the stage where moving image may be
produced
Ifwe draw the conclusion from the above
logic, it becomes quite clear that no
protection as such to the future film is
contemplated under the UK law.
UK law at present does not grant any
protection to future cinematographic work
for the reason that it wants the films to be
recorded on any medium.
Will the partly recorded film be able to
get protection under UK law?
Analysis of the Ratio of this High Court
Judgment- This judgment didn't give
protection to the Time Warner fortheir future
film on this pretext that it is difficult to identify
the owner of the work, for the work is yet to
come in existence and only copyright owner
can sue for infringement under sec 55.
The corollary of the above ratio is that if
the future owner of the future work could be
identified then he could get injunction whether
the work is in existence or not. This would
be the clear violation of the golden rule of
the copyright that copyright exists in
expression not in idea.
The Hon'ble Court should have gone
into Jurisprudence of property to answer
this question whether any body can get
protection for the work not in existence.
The legal conception of property", says
Lord Lindley (a), "appears to me to involve
existence somewhere ... To talk of property
as nowhere is to use language which to me
is unintelligible."
Salmond on Jurisprudence commenting
on Rights in re propria in immaterial things
asserts that the creator has a proprietary
right in the immaterial product of his human
skill and labour. A proprietary right exists in
product and non - existence of product leads
to non-existence of proprietary right
LAW Z 4 AUGUST 2008
because copyright cannot exist in vacuum.
There is maxim on this point that where
there is right there is remedy and where
there is no right there is no remedy yet may
the injury be grievous one. Right to property
could only exist when there is property. How
could any body claim a right to property
concerning a property, which is not yet in
existence
CONCLUSION.- The Hon'ble High
Court rightly didn't give any protection for
films yet to be made but the Hon'ble High
Court should have also observed that if the
defendants infringe the copyright in films in
future then they would be prima facie liable
for punitive damages in addition to
enhanced penalty under Sec 63A of the
copyright act 1957. This observation would
have acted as deterrence to habitual
offender.
- Ritesh Singh •