Categories
Blog Hollywood Industry

A GOLDEN KEY? Film Fund serves as common link between some of the region’s most promising stories for the screen

What does a story about an Indonesian school girl with big dreams, a tale of a modern day pilgrim searching for a place to call home, and an account of two miners from Vietnam confronting the ghosts of the past, have in common? The answer: All are exciting new feature film projects developed with the support of the MPA APSA Academy Film Fund.

The Fund, a joint initiative of the Motion Picture Association and the Asia Pacific Screen Academy, aims to encourage and empower creative filmmakers. The films they feel inspired to make may be unconventional in style and content, may be about contemporary or historical social issues that don’t fit within the conventions of a mainstream industry, or may be in jeopardy of attracting uninvited censorship or political restraint.  The filmmakers may be located outside their own country’s commercial film and TV industries, working alongside them or within them.

Yuni (2021) (Source: Asia Pacific Screen Awards)

 

An Indonesian project entitled Yuni attracted the attention of the Fund jury in 2018 because it was the work of a strong female director, Kamila Andini, seeking to explore the thoughts and emotions of a teenage schoolgirl faced with the pressure of regimented social structures around her. As the film’s synopsis says, “Yuni realizes that when her dreams get bigger, the world around her gets smaller.” Driven to resist the push from family and friends to accept a domestic role in an arranged marriage, she struggles to find a way of pursuing her own preference for continuing study at an advanced level. The communal constraints that surround her include the threat of a virginity test at her school for any students felt by teachers to be “at risk” of pregnancy. Her complex responses to these tensions are the substance and strength of the project, and the submission felt authentic, sensitive, and empathetic. Kamila Adani was nominated for Best Achievement in Directing in the 2021 Asia Pacific Screen Awards for her work on Yuni, which now begins a Festival career around the world. Toronto is the first and likely many more will follow.

No Land’s Man (2021) (Image courtesy of Mostofa Sawar Farooki)

 

No Land’s Man from Bangladeshi filmmaker Mostofa Sarwar Farooki was similarly convincing as a project from the heart. Essentially a classic picaresque fable about a man’s journey through a turbulent life, the project partly drew on Farooki’s personal experiences to examine the progress of a modern “pilgrim” – in this case, a lone, stateless man who moves from one country to another looking for legal status and a place he can call home. In his identity crisis, he has no certainty about his name, religion, or nationality.

Farooki’s remarkable debut feature, Television (2012), about a rural village where the community leaders ban television, signaled him to be an innovative artist supremely committed to making his films in his own way, in the face of innumerable obstacles.

With No Land’s Man, after receiving the support of the MPA APSA Academy Film Fund in 2014, the project went on to participate in the Asian Project Market at Busan in South Korea and was chosen as the best project at India’s Film Bazaar. After receiving the grant, Farooki spent some months working with Australian producer Graeme Isaac pursuing Australian finance so that he could film an episode of the story in Australia. While the location shoot didn’t happen, an Australian actress, Megan Mitchell, remained in the cast as a young woman who meets the pilgrim in the USA. The film moved forward dramatically when Indian star Nawazuddin Siddiqui made a personal commitment to join the team as lead actor and co-producer: “I thought this is our film. It is as much my film as it is Farooki’s, and it needs to get made,” Siddiqui said. With its personal origins, sense of social relevance, urgency, and bold narrative structure, the project commanded attention from the MPA APSA Academy Film Fund and is set to travel far internationally after its 2021 world premiere at the Busan International Film Festival.

Truong Minh Quý, Bianca Balbuena & Bradley Liew (Source: IFFR)

 

An international life also awaits Viêt And Nam, a film now in pre-production, which received a grant from the Fund in 2020. With a Vietnamese director, Trương Minh Quý, and Filippino producers, Bianca Balbuena and Bradley Liew, the film is already crossing boundaries. Trương’s project signals its uniqueness and commands attention when he describes his narrative as “lying between documentary and fiction, personal and impersonal, drawing on the landscape of his homeland, childhood memories, and the historical context of Vietnam.” The submission radiated a sense of urgency and emotional depth in facing issues of profound social dislocation and alienation, with characters still haunted by memories of the Vietnam War decades earlier, and inspired in part by the appalling death of 39 Vietnamese, who suffocated in a container lorry in England in August 2015.

Việt and Nam are two miners who work deep below ground, struggling between their love for each other and their conflicting desires for their futures. In their journeys, together and apart, they confront “the ghosts of Vietnam’s past and the uncertainty of its present.” Nam helps his mother search for the remains of his father, a soldier in the war, with endless hope but no success.  He decides to leave his mother and Việt and finds an agent who can smuggle him abroad.

The Fund was not alone in identifying the strength of this project. It also attracted a grant from the prestigious Hubert Bals Development Fund in the Netherlands. The film is due to be completed in 2022.

These three films exemplify the strength of the MPA APSA Academy Film Fund in promoting authentic and diverse voices from the Asia-Pacific region, and in engaging with filmmakers in fundamentally practical ways, through finance and through endorsement. To be backed by the Fund can raise a project’s profile simply through the association with the Fund’s long list of prestigious recipients, beginning with an Oscar-winner, A Separation, by Asghar Farhadi, in the Fund’s very first year of operation.

With jurors drawn from all sectors of the industry across the Asia-Pacific region, the grants carry with them networking opportunities. Bonds are created and connections made. The Fund’s goal is to promote independent filmmakers in cutting-edge work and to expand and enhance the potential for creative artists in the film domain. Audiences worldwide are also beneficiaries, both in the short term when the film is first released domestically and overseas, and also in the long-term as the film moves onto new services and continues to circulate. It cannot be underestimated too, that the Fund, through cinema, is documenting the social history and helping to stimulate understanding and awareness of communal and historical complexities in ways that would not otherwise be possible. The goal of empowering the open-ended exchange of ideas and experiences at home and abroad makes this Fund much more than an industry assistance agency.

This article was originally published on the MPA-APAC website.

Categories
Industry Media OTT

Forging Global Connections For An Optimistic Filming Future

Creative First is delighted to present an interaction with Rick Ambros, international media and entertainment executive, consultant and producer (India, China, SE Asia, US, Europe), and Consultant and Executive Producer for Applause Entertainment, India.

The discussion focused on the transformation of the online curated content (OCC) segment driven by platforms such as Netflix, Amazon, Disney+ and cinema industry trends. Rick explained that the emergence of global OCC platforms has created opportunities for local producers to explore innovative content and storytelling formats which were lacking in the Indian media and entertainment industry. Mr. Ambros highlighted that revolutionary changes have taken place in the content creation space in the last five to six years, fuelled by changing audience preferences in addition to their exposure to global content.This has opened new opportunities for producers in terms of partnerships that can be forged between Indian storytellers/producers and international players.

On whether OCC platforms directly compete with traditional TV/ broadcasting, Mr. Ambros mentioned that in most countries, there are more viewers on broadcast than on OCC platforms, however the trend of cord-cutting is catching up fast, globally. An important reason being that the best content from linear TV is being shifted to OCC platforms in many markets and new content is being made by the studios exclusively for online content platforms. In India, he elaborates, apart from the major changes listed above, American streamers like HBO Max, Paramount+, Apple, etc. are working on their India strategy since it is a crucial market for them; and the 100% FDI approved policy is a lucrative draw for them to explore this market. Rick predicts that, in light of these factors, the OCC boom in India is likely to continue and may be serious competition for linear TV.

 

On the benefits of working with film commissions and the value of production and tax incentives, Mr. Ambros stated that producers do consider various tax incentives that are available to them and many films are greenlit on the basis of these. In India, a more stable policy at a state and central level will attract more producers. While already a popular destination with the diversity of locations available, the scope for India to be a more lucrative filming destination is promising with the right incentives in place.

On the subject of theatrical releases, Rick had an optimistic view and highlighted that the theatrical experience will continue to be unique in it’s own offering and will see positive growth. Rick also spoke about various content and business startegies adopted by global OCC providers.

For more insights please view the video.

Categories
Hollywood Industry

“The Matrix Resurrections” Cast Reflects on Legacy of “The Matrix”

“Have you ever had a dream, Neo, that you were so sure is real? What if you were unable to wake from that dream? How would you know the difference between the dream world and the real world?”

You might recall these lines from the original The Matrix, spoken by Morpheus (Laurence Fishburne) to Neo (Keanu Reeves) in the film that changed the game for not only sci-fi films going forward, but for what was possible to depict on screen. The effects alone would have made The Matrix a major moment in film history, but it was the story of a terrifying reality beneath the glossy, workaday dream-world we all believe is real that captured the attention of millions. Lana and Lilly Wachowski’s The Matrix wasn’t just an epic sci-fi blockbuster that revealed “bullet-time” visual effects technology to the world, it was also a deeply felt story about the human mind, the capacity for every individual to break free from the prison of comforting conformity and see the world for what it really is.

Then, of course, there were the iconic performances. Fishburne, Reeves, and Carrie-Anne Moss, as Trinity, were the film’s stars. But you’ll recall, as you watch this new featurette from Warner Bros. on the legacy of The Matrix, just how many great performers populated Lana and Lilly Wachowski’s film. Hugo Weaving was pitch-perfect as the malevolent Agent Smith, but so, too, was Jada Pinkett Smith’s Niobe and the wisecracking Joe Pantoliano as Cypher. “Buckle your seatbelt, Dorothy, because Kansas is going bye-bye,” Cypher says to Neo, and he was right. Only the rest of us were on that trip with Neo, too.

Carrie-Anne, Moss Laurence Fishburne, and Keanu Reeves standing against brick wall in a scene from the film ‘The Matrix Reloaded’, 2003. (Photo by Warner Brothers/Getty Images)

 

In the new featurette, the cast of The Matrix Resurrections reflects on what the original film meant to them. Original and current stars like Reeves and Moss offer their perspective on how the film changed their lives, while newcomers recall reacting to the film the same way you and I did. “I left the movie theater just knowing things were going to be different in my life,” new cast member Eréndira Ibarra says. “You can’t quantify how much it changed the world,” adds Jessica Henwick, who plays Bugs in Resurrections. “The best and most iconic thing I remember is Neo dodging the bullets,” says Yahya Abdul-Mateen II, who has a big role in the upcoming film.

The cast makes the point that elements of The Matrix have become so deeply embedded in our culture you might forget that they sprung from the film in the first place. Whether it’s a reference to the red pill or the blue pill, or someone simply mentioning “a glitch in the Matrix” to describe something weird happening, the original film really did have a massive, lasting impact. This is why there is so much excitement to see what Lana Wachowski has cooking with The Matrix Resurrections.

Check out the featurette below. The Matrix Resurrections hits theaters on December 22.

This article was originally published on The Credits.

Categories
Hollywood Industry

“No Time to Die” DP Linus Sandgren on Daniel Craig’s Epic Sendoff as James Bond

In No Time to Die, Daniel Craig gets two hours and 43 minutes to show James Bond fans what they’ll be missing once he exits his five-movie run as the world’s most enduring British spy. Following Craig’s every step, car chase, and explosion along the way is Swedish DP Linus Sandgren. “It was important in this film to make sure that we bookend Daniel Craig’s chapter of Bond in an exciting way,” says Sandgren. Acclaimed for his Oscar-winning cinematography on La La Land as well as American Hustle and NASA space epic First Man, Sandgren joined director/co-writer Cary Fukunaga, cast and crew on a globe-hopping seven-month production filmed in Norway, Italy, Jamacia, London, Scotland, and the North Atlantic Faroe Islands.

Co-starring Rami Malek, Léa Seydoux and Ralph Fiennes, and Lashana Lynch as the first Black female 007,  No Time to Die offers plenty of spectacle, augmented in some theaters as the first Bond movie to be filmed partially in IMAX. But Sandgren takes just as much pleasure in capturing smaller moments. Speaking from his home in Los Angeles, Sandgren offers his take on the cinematic virtues of location-hopping, the beauty of handheld camera work, and the pleasures of capturing Daniel Craig’s emotional range in all his Bondian glory.

In the best Bond tradition, No Time to Die hops all over the place. How did all these locations impact the cinematography?

In a global adventure like this, locations give you a great opportunity to travel and put the plot into whatever location fits the story, and the cinematography is crucial for the emotions to come through. That’s how I like to think about it. I don’t like to think of cinematography so much technically. It’s about emotions and feelings. Thrills, joy, laughter, humor, you always try to relate the imagery to these emotions.

James Bond (Daniel Craig) and Felix Leiter (Jeffrey Wright) in
NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2020 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

Another Jame Bond tradition: the big set piece at the beginning usually features 007 in some spectacular action sequence. Here, we open on a mother and daughter in Norway with Bond nowhere in sight. It’s quite a contrast in scenery when Bond then makes his appearance.

We wanted to go from this horrific incident in a cold, icy location where we make you really feel the isolation through the cinematography. And then we cut to [coastal Italian village] Matera, which is hot, sunny, and the complete opposite of the snow. Matera’s this very romantic setting, which we captured by shooting at sunset, through dusk to twilight. Cary was very eager to have the story jump each time to a new place.

Daniel Craig stars as James Bond and Léa Seydoux as Dr. Madeleine Swann in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

Next day it’s the same location but a totally different vibe. How did you achieve that?

The morning starts out very romantic as well, but suddenly changes into the worst location you could be in if you’re being chased because you’re going to hit your head really hard against these hard rocky walls in this location that just a minute ago seemed so romantic. For the chase, the light becomes very bright and harsh scary. We also go from sweeping, picturesque visuals to much more handheld [camera work] which gives us this raw, brutal imagery for the action.

 

Bond’s first mission targets a Cuban nightclub (filmed in Jamaica). What kind of atmosphere did you want to render through your cinematography?

The exotic streets of Cuba we decided to shoot in twilight. Then later at night, they travel out to sea in the boat and we shoot that dark blue, not black night, so you can still have a little bit of light in the sky. Even when something’s monochromatic, it’s always more interesting when there’s color. And a big part of the film’s visual [style] is that we intended it to be colorful.

Rami Malek (Safin) on the set of NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

You shot on actual film stock, which is pretty rare these days. How did that choice affect the way you shaped your color palette?

Nothing was forced on the color during post-production. By capturing everything on film stock, the lighting color temperatures we worked with made each location feel distinct and also helped set the mood we were trying to create for that scene.

Ralph Fiennes stars as M and Daniel Craig as James Bond in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

So what you shot is what you got, as opposed to digital, where filmmakers often modify the color in post-production?

Making No Time to Die, my intention is that whatever we shoot in-camera, on set, should come back the next day and that is what the film should look like ever after. I’m disappointed if it does not look the way I lit it and captured it in the camera. But sure, when I shoot digital, like on La La Land for example, you use look-up tables to create a distinct look and then you proof-process the footage to get a smoother, softer contrast. But in this case, we did our tests, shot on film, and processed our film stock in the normal way.

Rami Malek stars as Safin in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Christopher Raphael. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

 

No Time to Die features a lot of epic wide shots. What format did you use?

We shot anamorphic 35 mm as the base for our story, and then we filmed certain sequences with IMAX cameras. If you see these scenes in an Imax theater, the image opens up below and above your head as a way of giving the audience an additional experience of immersive-ness.

You’ve previously worked with intense actors like Ryan Gosling in La La Land and Christian Bale in American Hustle. Viewed through your lens, what is it that makes Daniel Craig so appealing as a screen presence in this, his final Bond film?

He has such a range. Daniel can be charming and witty but he also has the ability to kill a lot of bad guys. And then he can also be very soft or emotionally sensitive. The thing Daniel brings to the Bond franchise is this depth of emotion, where he’s able to express loss and grief and love. As a cinematographer, I’m always thinking “What is this scene about?” Sometimes it can get so emotional that you almost want to be a little bit behind the actor in certain scenes because you want to be respectful and watch him in a more effective way than if you have him looking right into the camera.

Daniel Craig stars as James Bond in NO TIME TO DIE, an EON Productions and Metro-Goldwyn-Mayer Studios film. Credit: Nicola Dove. © 2021 DANJAQ, LLC AND MGM. ALL RIGHTS RESERVED.

With five Bond movies now under his belt, Daniel Craig at this point probably serves as an all-around creative partner as well as an actor.

Definitely. He’s very much a filmmaker, involved in discussions on set. And as an actor, he’s very professional. Daniel knows where the cameras are, he knows where to face himself to catch the light in his eye to look more heroic.

Yet he never seems self-conscious. When Daniel Craig shifts into fight mode, do you approach the camera work differently from his more intimate scenes?

When Daniel’s in danger, we oftentimes work with handheld cameras. He picks something up. Cut. There’s a gun. Cut. He’s smart, swift, and very effective.

No Time To Die is in theatres on November 8.

This article was originally published on The Credits.

 

Categories
Industry Piracy Uncategorized

There will never be a legal ‘celestial jukebox’ to compete with piracy

For more than twenty years and counting, media piracy apologists have repeated some variation of the argument which says, “People are willing to pay for content as long as it is made conveniently available at a fair price.” And while that may sound reasonable in a Tweet or a sound bite, what it actually implies is something quite unreasonable—namely, that the legal streaming paradigm should compete with pirate services by offering most if not all the world’s media fare on one platform at a “low” all-you-can-view price.

Even if that goal is not quite what people think they mean when they repeat the “willing to pay if…” trope, it is the only logical extension of the argument because that would be the only way in which a legal model could possibly mimic a pirate model. But it’s not going to happen. The “Celestial Jukebox” is untenable in a legal framework, especially for filmed entertainment on a global scale.

A single-stream distribution model that would function like one of the pirate subscription services is not economically viable; it would not be achievable without overturning antitrust laws globally; and it would not be desirable because such a monolithic regime would only stifle the diversity of material being produced.

Many viewers perhaps fail to appreciate that we are currently enjoying a golden age in motion picture entertainment. In fact, there has never been a period offering a more diverse range of material for our many screens.

The multi-platform producer/distributor phenomenon enabled by streaming technology obviated the demand to satisfy median viewer tastes where access was limited to a handful of linear, broadcast TV networks. Instead, models like Netflix and Prime have fostered new opportunities to take creative risks in both style and substance, and by contrast, the desire for a single source “jukebox” is culturally regressive because it would render all that experimentation economically untenable. Even if it were legal.

Antitrust laws would prohibit, for instance, the Hollywood studios from collaborating on a single-platform distribution system. And that’s a good thing because, in case anyone hasn’t noticed, network effects in online markets produce monopolies. And it is folly to wish for more consolidation across all media industries.

Shifting the competition paradigm from a network subscription model to one in which each title competes for a share of a combined subscription pool would lead to greater reliance on data by the largest entities to the detriment of smaller producers.

This is not to ignore or underestimate the existing power of the major producers (including Netflix and Prime) relative to independent creators, but a shift toward distribution consolidation and greater reliance on data processing would only amplify those disparities.

In 2018, indie music distributor John Svanberg wrote the following about data-driven perspectives in the Spotify model: “With tireless data mining, the streaming services and major labels become more risk averse. The major labels use streams and social media clout as hard currency in their scouting process in order to make as safe bets as possible, which arguably leads to more innovative music being overlooked due to its out-of-comfort-zone nature.”

Yet, paradoxically, some consumers and pundits suggest that content and network diversity itself is a reason to choose piracy as an alternative. As Michael Beausoleil wrote in a February 2021 blog describing consumer trends:

Too many options leads to frustration. Too much frustration leads to piracy. Yes, the number of streaming options is allowing piracy to gain in popularity. A recent study found that 70% of people believe there are too many streaming options and over 85% feel streaming is getting too expensive. Stealing content certainly isn’t too expensive, unless you get hit with a hefty fine.

Beausoleil does not advocate piracy per se, and his portrayal of consumer frustration, often referred to as “subscription fatigue,” does hit a nerve. I have several subscriptions myself and not nearly enough time to watch everything of potential interest. So, why not get one of those cheap TV boxes, download an app, and pay a lower monthly subscription fee to a pirate operation? I could access all the programming I currently get, plus quite a bit more, while paying less every year.

So, why not do it? For me, the answers to that question are myriad—even without the risk of fines—but it is clear that piracy is still perceived by millions of consumers around the world as a harmless option.

To date, studies indicate that many viewers are not deterred from piracy by the fact that they have a 30% chance of infecting their networks with malware. Neither are they put off by the consideration that media piracy supports an array of other criminal enterprises including identity theft, privacy invasions, and even acts of terrorism. And few consumers have ever been persuaded by evidence that piracy really does cause financial harm to many creators of works.

Further, it is notable that even though legal music streaming comes close to providing an all-in-one “jukebox” experience, these services have not yielded a consistent reduction in pirate habits among consumers.

Rolling Stone reported that during the COVID-19 shutdowns, there was a spike in “old school” download piracy of music, and Music Business Worldwide reported that in pre-COVID years between 2016 and 2019, the UK saw stream ripping of music increase by 1390%.

So, whatever rationales explain the ebb and flow of traffic to pirate alternatives, it seems clear that the existence of the “jukebox” itself is not sufficient to maintain constant ebb.

Understandably, when the consumer views streaming technology in isolation, the idea of a single platform seems attainable. The legal producer/distributors could, as a purely technical matter, approximate what the pirates are doing. But even if the financial model could sustain anything close to the spectrum of material we currently have available, a pirate model could never be replicated in a free market—let alone among competing markets worldwide—without extraordinary levels of regulatory overreach.

A subscription-based pirate streaming app accesses stolen material which is stored on servers operating illegally around the world, and it distributes that content without paying fees to any producers of the work.[1]

Thus, to imitate pirate-like access in a system that actually pays the people who make movies and TV shows would require sweeping government mandates and international agreements that overturn a constellation of legal regimes, including abrogating antitrust laws, for the sole purpose of bringing all motion picture distribution into a monolithic, worldwide streaming system.

Even if that were to happen (and it will not), there is no reason to assume that such a radical approach would provide viewers with a better experience offering the same scope and quality of programming that is available today. On the contrary, homogenized, state-regulated models tend to produce homogenized, state-regulated products. And still, piracy would persist because the pirate who pays zero for the content it distributes can still turn a profit, even if the new “jukebox” were to cut into some margin of its market share.

In terms of overall convenience, interfaces like Prime and AppleTV come pretty close to providing a single source experience because they enable search across all titles on all the networks available through those portals. In that vein, we may see new bundling options offered through ISPs et al in coming years, but it is unrealistic to expect that we will eventually pay one fee into a single, legal, worldwide streaming service.

So, if the consumers currently pirating are waiting for the Celestial Jukebox before they are willing to abandon piracy, then it is fair to say that those consumers are not going to abandon piracy. As such, efforts to mitigate piracy through law enforcement should come as no surprise to anyone.

This article was originally published on Content Café.

Categories
Copyright Industry

Thank You Professor! “Explaining” Section 230 to Canadians

Unabashed booster of—and apologist for—Section 230 of the 1996 Communications Decency Act (CDA), Eric Goldman, recently published an encomiumto help Canadians understand a crucial US law that’s become a flashpoint for heated discussions” (according to the introduction to Goldman’s article distributed by the Santa Clara University School of Law). It was initially released through the Centre for International Governance Innovation (CIGI), a prominent Canadian think-tank at the University of Waterloo. Goldman is Associate Dean and Co-Director of the High Tech Law Institute at the university, which is located in the heart of Silicon Valley). Thanks to Goldman, we poor benighted Canadians can finally begin to fully comprehend how fortunate we are that the new NAFTA (USMCA, called CUSMA in Canada) requires each country—that is the US, Canada and Mexico—to maintain legal rules that, in Goldman’s words, “resemble Section 230”. That provision in CUSMA is Article 19.17. More on the CUSMA treaty language below. But first….

What is Section 230?

Section 230 of the CDA provides that internet intermediaries (internet platforms, websites, social media services) are not liable in civil law for content posted by users. The law was originally passed in order to provide platforms with the means to control illegal or harmful content. As I wrote in an earlier blog post (“Section 230 is Dangerous–Keep it Out of Trade Negotiations”), the problem arose because an online website, Prodigy (no longer in existence) was successfully sued because it had not moderated an online posting put up by a user that allegedly defamed the plaintiff. The court considered that because Prodigy had the ability to moderate the content and did so on occasion, (but not in this case), it was a “publisher” (like a newspaper) and was thus liable for defamation. On the other hand, other websites that made absolutely no attempt to moderate content on their platforms, whether the content was objectionable or not, were considered “distributors” and were off the hook. There was thus no incentive for online platforms to lift a finger to remove obscene, defamatory or content that would be objectionable to children, one of the early concerns about the spread of online content.

The solution was Section 230, which provided, in the words of (now Senator) Rod Wyden, one of its architects, both a sword and a shield. The sword was the ability to take down objectionable content; the shield was immunity from prosecution for doing so. However, over the years its intent has become badly distorted through a series of rulings by various US courts to the point where today the legislation is interpreted as a blanket exemption from responsibility for digital platforms for any content posted by users.

Abuses enabled by Section 230

The misapplication of Section 230 is largely responsible for a general lack of accountability on the part of internet intermediaries for any content that they host, distribute or enable, allowing them to refuse to take action against user-generated abuses. This has led to a litany of abuses without legal remedy against the platforms that turn a blind eye to, enable or even promote, harmful content such as sexual exploitation of children, illegal gambling, false and harmful information, revenge porn, hate speech and so on. It is so wide-sweeping that it has allowed services like AirBNB to thumb its nose at municipalities seeking to enforce bylaws against temporary rentals because the illegal listings were posted by users. (There are limited exceptions to platform immunity under Section 230, namely copyright infringement and, since passage of the SESTA/FOSTA legislationin 2018, sex trafficking, a carve out vigorously opposed by most of Silicon Valley).

Tech platforms love Section 230, as do those who use the content to abuse others, promote illegal activities or spread conspiracy theories. Responsible content producers would like to see some accountability on the part of the platforms. Governments too are grappling with the issue of how to prevent the internet from becoming a law-free zone and to hold businesses that profit from user-generated content to account for the content they distribute and promote.

Because of the many abuses, Section 230 has come under increasing scrutiny in the US. Ironically, when it came under attack by the Trump Administration, it was not because of lack of content moderation by the platforms, but rather because they had—finally and under extreme provocation owing to the proclivity of Trump and his supporters to stretch the truth—exercised some control over the content propagated through their services. This infuriated Trump supporters who accused the platforms of political bias and threatened to bring changes to Section 230. As I commented at the time, (“Reforming Section 230 is the Right Idea—But Not When Done in the Wrong Way for the Wrong Reasons”),

Trump has decided to use Section 230 in order to take personal revenge on Twitter, not to reform it or to address the fundamental issues inherent in the abuse of its immunity provisions by internet intermediaries who have used it to avoid taking down clearly harmful content. By making this allegedly about “silencing conservative voices”, Trump has in effect hijacked the issue of Section 230 reform.”

Of course it didn’t happen, and for several months now we have all been spared the daily torrent of personal, misspelled, vindictive and inaccurate tweets from the former president. For now, Section 230 in the US remains unchanged.

Goldman’s “Five Things to Know”

However, Goldman and his Canadian fellow-cyberlibertarians such as Michael Geist at the University of Ottawa are big fans of Section 230. During the CUSMA negotiations, Geist joined with a number of American academics to write a letter to the chief trade negotiators of the three countries urging the inclusion of a Section 230 provision in the Agreement. He also publicly urged Canadian negotiators to cave in and give the US “a win” on this point. For Goldman and Geist and others of their ilk, Section 230 is the foundation of the internet, enabling free speech, competition, innovation, democracy and more. In his panegyric to Section 230, written for Canadians, Goldman cited “Five Things to know about Section 230”. These are;

  1. Internet Exceptionalism and Section 230
  2. Section 230 Enhances the First Amendment
  3. Section 230 Enhances Competition
  4. Section 230 is the Law in Canada (But Not Really)
  5. Gutting Section 230 Won’t Make the Internet Better.

Let’s examine these assertions and deconstruct the arguments just a bit.

Internet Exceptionalism

With regard to internet exceptionalism, Goldman argues that although the internet is treated differently from and more favourably than other media, Congress got it right when it passed Section 230. He is happy to see the laws governing libel, defamation, hate speech and the other checks and balances that society has imposed on those who are granted the privilege to publish and disseminate information suspended when it comes to the internet. It all seems to hearken back to John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace”, the mantra of the Electronic Freedom Foundation, a collection of bilious assertions that the internet is beyond the regulations of governments and not subject to national laws.

The First Amendment

Does Section 230 enhance the First Amendment, the “free speech” provision in the Constitution of the United States? First, we have to ask, “does the First Amendment put any limits on free speech?”  The answer is, “of course it does.” The First Amendment does not protect a number of forms of speech, such as obscenity, defamation, perjury, blackmail, incitement to unlawful action, and true threats. The courts have an important role in enforcing these reasonable limitations, but according to Goldman, Section 230 contains “important procedural advantages” that allow courts to dismiss lawsuits over third party lawsuits quickly and relatively cheaply. Put another way, Section 230 hobbles the courts from exercising their responsibility to ensure that free speech is exercised in a way that does not harm others.

Section 230 and Internet Competition

Does Section 230 enhance competition? In Goldman’s upside-down world it does because it keeps the door open to new entrants who don’t have to worry about investing resources in anything as wasteful as content moderation. And we have the proof that this policy increases competition, right? I mean, look at the robust competition that Facebook and Google have to deal with. Or did I miss something?

Is Section 230 the Law in Canada?

According to Goldman, Section 230 is sort of the law in Canada. This is because the new NAFTA (which I will call USMCA/CUSMA hereafter) contains Article 19.17 that says, in part;

“…no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”.

According to Goldman, “when Canada ratified CUSMA it committed to providing Section 230-like immunity against internet service liability for third party content”.

However, in USMCA/CUSMA there is an important footnote that reads;

a Party may comply with this Article (19.17) through its laws, regulations or application of existing legal doctrines as applied through judicial decisions”.

In other words, Canadian case law will continue to apply and there is no explicit requirement to create safe harbours in Canada for interactive service providers under this provision. I discussed this in detail at the time in a blog posting labelled “Did Canada get “Section 230” Shoved Down its Throat in the USMCA?”

Goldman argues that Section 230 is the law in Canada but, with respect, that is a highly debatable claim. It’s a brave move for a non-legal practitioner to challenge a Dean of Law at a prominent university on a point of law but even little ol’me knows that a law is not a law unless it has been enacted into legislation. In Canada that is done by an Act of Parliament. True, Canada ratified the USMCA/CUSMA and, as part of the process of so doing, introduced a package of legislative amendments (Canada–United States–Mexico Agreement Implementation Act) to effect changes to various Canadian laws as required by the CUSMA treaty. For example, as part of this legislative package, there were amendments to a variety of statutes ranging from the Fertilizers Act to the Copyright Act and Special Import Measures Act to the Customs Tariff.  But were there any legislative amendments related to Article 19.17 of CUSMA? There were not. There is no new law in Canada establishing Section 230-like immunities for internet platforms—thankfully.  Secondary liability continues to apply in Canada as I discussed in greater detail in here (Will Article 19.17 of the USMCA/CUSMA Influence Canadian Court Proceedings? (The Long—or Short?—Arm of Section 230).

Canada’s “commitment” in the CUSMA was carefully worded, preserving maximum flexibility for Canadian legislators and legal practitioners. I like to think that this was not an accident but by design and is a credit to the Canadian negotiating team who resisted misplaced US demands to “sign on” to Section 230.

Will Changing (“Gutting”) Section 230 Improve the internet?

Goldman argues that removing the dangerous parts of Section 230 will not improve the internet. In his view, since people have been nasty to each other for centuries, changing Section 230 to put the onus on the platforms that disseminate this personal bile won’t change anything. Yet because of the ugly side of society, we have laws to restrain this kind of behaviour in the offline world. We have laws to protect innocent victims. We impose reasonable restraints on unfettered freedom of expression and dissemination of libellous, defamatory and obscene materials everywhere—except on the internet. Goldman would like to keep it that way. He states that “Section 230 reform will accelerate the end of the Web 2.0 era”. This, apparently, will lead to a predomination of “privileged voices” and will exclude “niche non-majoritarian interests” (like those people who spread misinformation, conspiracy theories and indulge in vile personal attacks). So, yes, Professor, changing Section 230 will improve discourse on the internet.

Section 230 in the US

Apart from the attacks on Section 230 by Donald Trump and his acolytes (because the platforms finally exercised a modicum of content moderation), there have been wide criticisms of this legislation because of how it has enabled online abuse. In fact, it almost didn’t make it into the USMCA, since Nancy Pelosi and the Democrats finally woke up to what they were supporting. Pelosi tried to get the Trump Administration to drop Article 19.17 as part of the last-minute deal-making with Congress to get approval of the Agreement, but it was too late in the process. However, the Democrats did succeed in getting a statement from the hi-tech industry acknowledging that inclusion of Article 19.17 did not prevent the US from amending Section 230 in future. Advocates of Section 230 were hoping that its inclusion in the USMCA meant that it would be “baked in” forever and could not be touched by Congress. Given the tepid support in Congress for Section 230, Goldman is right to conclude that even if Canada did not abide by Article 19.17 by passing future legislation that negated it, the US would be most unlikely to object. In fact, he admitted as much in a podcast with Michael Geist that I wrote about earlier this year when he said, with respect to Congressional intentions to modify Section 230 despite Article 19.17 of the USMCA;

“Congress will absolutely blast forward with efforts to tinker with Section 230 even if that would also contravene the USMCA…I don’t know who really plans to abide by it, and if no-one plans to abide by it, I don’t understand what the point was”.

The Future of Section 230

How true. So why the primer on Section 230 just for Canadians? It is not part of the corpus of Canadian law, it is an outdated provision that is in serious need of revision in its homeland, the US, and it is not going to constrain the Canadian government from holding internet platforms responsible for online harms that they distribute if they fail to takedown such material when notified. Eric Goldman, Michael Geist and their friends in the Electronic Frontier Foundation (EFF) can continue to beat the Section 230 drum, but that drumbeat is sounding increasingly hollow, in Canada as in the US. Let Section 230 stay where it is in Canada, effectively buried.

This article was originally published on Hugh Stephens Blog.

Categories
Copyright Industry Intellectual Property Media Piracy

IPRMENTLAW WEEKLY HIGHLIGHTS (September 21st to September 26th)

Twitter appoints personnel in compliance of with new IT Rules

Twitter has appointed Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer in compliance of IT Rules, 2021. Twitter has appointed these individuals as employees and not ‘contingent workers’ and has also provided names of the said appointed personnel and their respective positions.

This development comes in a petition filed by Amit Acharya stating that Twitter being a ‘significant social media intermediary’ as laid down under the IT Rules, 2021, must ensure compliance with statutory duties imposed upon it by the provision of these rules.

The matter is now fixed for hearing on October 5, 2021.

Bengaluru e-gaming companies plan to challenge ban decision

An amendment to the Karnataka Police Act shall outlaw online gambling and ‘games of chance’. The key concern of various governments with regards to gaming comes through the apprehension that it promotes gambling, however, in the past, there have been judgements that approve ‘skill based gaming’ against ‘chance based games’.

The ban will affect approximately 100 gaming companies operating from Bengaluru.

ASCI dismisses advertisement plagiarism complaint by Amul

A complaint was lodged by Amul Macho alleging that the Lux Cozi advertisement starring Varun Dhawan was a ‘complete copy’ of Amul’s advertisement released in 2007. Amul sought immediate action against Lux on the grounds that the advertisement unfairly took advantage of the brand equity, reputation and goodwill generated by Amul Macho brand.

In response, Lux contended that the complaint seemed to have been initiated with an intention to malign Lux’s reputation in the eyes of public and waste the time of the Consumer Complaints Council (CCC), adjudicatory body of the ASCI. It also pointed out a list of dissimilarities to show how the concept, theme and expression of both advertisements were in complete contrast to each other and hence, there can be no scope of similarity whatsoever.

Lux also informed the CCC that Amul’s advertisement had been a subject of controversy soon after it was released in 2007 on account of its “objectionable and indecent content”, and was banned by the Ministry of Information & Broadcast across all mediums.

Observing that both advertisements barely had any similarities between them, the CCC held that Lux’s advertisement was not in contravention of the ASCI code and rejected Amul’s complaint.

Google moves Delhi High Court against confidential report leak

A writ petition was filed by Google before the Delhi High Court alleging leak of an interim fact finding report relating to an ongoing investigation into Google’s Android smartphone agreements.

The report does not reflect the final decision of the CCI.

Marvel sues to keep rights to Avengers character from copyright termination

Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time.

The litigation figures to focus on the “Marvel Method,” a loose collaborative working atmosphere where initial ideas were briefly discussed with artists responsible for taking care of the details. The Marvel Method has been the subject of prior litigation, almost a decade ago, in August 2013, the 2nd Circuit Court of Appeals affirmed a lower court’s ruling that determined Kirby’s heirs couldn’t wrest back his share of rights to the characters because the former Marvel freelancer had contributed his materials as a work made for hire.

The Kirby case was then petitioned up to the Supreme Court, with the late Ruth Bader Ginsburg signaling some interest in taking up the case. Marvel at the time fought hard against any high court review, and before the justices decided, the case was settled.

If the plaintiffs win, Disney expects to at least hold on to at least a share of character rights as co-owners. The studio would have to share profits with the others. Additionally, the termination provisions of copyright law only apply in the United States, allowing Disney to continue to control and profit from foreign exploitation.

Criminal complaint filed against Javed Akhtar

The complaint is against Javed Akhtar’s statement linking RSS to Taliban. Joshi, the Mumbai lawyer, heard Akhtar on a talk show and felt that the alleged statement were meant to defame and vilify the Hindu community.

Joshi’s statement read, “Statements made by the accused is well planned, thought and calculated defamatory statements to defame RSS and discourage, disparage and misguide the people who have joined RSS or who would like to join the RSS and belittle the RSS in the eyes of common public. There was a well planned motive of the accused to defame RSS.”

Joshi has even prayed for investigation for offences of defamation which are punishable under the IPC Sections 499 and 500. The complaint will be heard on October 30.

Plagiarism claim against song titled ‘Teri Mitti’

Writer Manoj Muntashir has refuted all allegations of him having copied the Teri Mitti song from ‘Kesari’ from a Pakistani song.

Muntashir claims that issues have cropped up against him due to a video made by him on the Mughals where he has used strong words against them, referring to them as glorified dacoits.

Plea moved in Delhi High Court seeking withholding of ‘The Conversion’ release

The Petitioner body has submitted that it had sent a representation to the Ministry of Information and Broadcasting and also to YouTube complaining about the biased and communal content shown in the trailer of the film and had also requested to remove the trailer and withhold the release of the of the film, but it didn’t receive any response.

The matter was heard today by a Bench of Chief Justice DN Patel and Justice Jyoti Singh however, it was adjourned as the counsel for Petitioner, appearing through video conference, was inaudible.

The Court has now adjourned the matter for hearing on October 1, 2021.

De Minimis Defense Doesn’t Protect Minimal Use of Concededly Infringing Material

Richard Bell took a photo of the Indianapolis skyline and published it on various websites. Eleven years later, he registered the photo with the US Copyright Office. Bell later conducted an online reverse image search of his photo to identify potential infringers and subsequently filed more than 100 copyright infringement lawsuits.

Bell sued Wilmott for copyright infringement in 2018, asserting that Wilmott infringed his right to “display the copyrighted work publicly” by making it accessible to the public on Wilmott’s server. The district court granted summary judgment to Wilmott on the de minimis use defense.

The Ninth Circuit rejected the district court’s finding that Wilmott’s infringement was a “technical violation” because Wilmott did not know the photo was still on its website. The Ninth Circuit also found that there was no place for an inquiry into whether there was de minimis copying because the “degree of copying” was total since the infringing work was an identical copy of the copyrighted photo.

This article was originally published on IPRMENTLAW.

Categories
Hollywood Industry

Emmy Winner Jessica Hobbs on Why Directing “The Crown” is a Royal Treat

The 73rd Emmys shined bright over the weekend with a number of fresh faces taking home a statue, including Michaela Coel accepting the Emmy for Outstanding Writing for a Limited or Anthology Series in a rousing speech for I May Destroy You. It was the first time a woman of color won the award.

The Crown director Jessica Hobbs was also among the newly enshrined during the live broadcast, winning the Outstanding Directing for a Drama Series category for the season four finale of the beloved Netflix series. The episode “War” chronicles Diana’s unraveling marriage to Prince Charles and the dichotomy of their relationship while Queen Elizabeth asks Prime Minister Margaret Thatcher to step down in a scene with such stirring intensity you could cut with a knife.

Below, Hobbs shares her insight into the episode and what makes the series so special.

There always seems to be a bit more pressure when directing a season finale. You’ve done so the last two seasons of The Crown. Do you look at them any differently or try to ignore that notion altogether?

One of the joys of directing The Crown is how self-contained each of the episodes are. Peter Morgan (creator/writer) is very encouraging about approaching each episode as if it’s a stand-alone film. Having said that, with the finales I do find that I approach them differently. The responsibility, and desire, is to complete the season for the audience in a way that delivers on the overarching themes set up in the writing.

Margaret Thatcher (GILLIAN ANDERSON). Filming Location: Wrotham Park. Photo: Des Willie/Netflix.

 

In Season 4, this was the culmination of the two challenging females that the Queen comes up against – Margaret Thatcher and Diana. In the finale, one was going to exit, permanently, and the other was preparing to start a personal war. I wanted to truthfully reflect the Queen’s discomfort in saying goodbye to Thatcher. I love the way that Olivia and Gillian played that final scene. It was disquieting in the best way.

For the very ending, I felt that isolating Diana and slowly closing in on her face would help us understand how isolated she felt at that moment. Deciding to shoot Diana like that – with the obliviousness of the Queen and the other family members around her – was a deliberate choice to catapult us into season 4. Philip felt he’d told Diana she was not the ‘center,’ but I wanted our audience to know she was the impending ‘war.’

Picture shows: Princess Diana (EMMA CORRIN). Photo by Des Willie.

 

“War” is all about power and Diana specifically sees how much impact she has on issues. How did you want to approach her People’s Princess persona in the episode?

It was very important to allow the audience to experience the sheer wattage and personal power that Diana’s natural empathy allowed her. And at the same time, as in war, there’s isolation, loneliness, and a wobble towards madness can come with it. I found it incredibly moving to show that Thatcher felt that without her job, her status as PM, she would be ‘nothing.’ The Queen won through sheer staying power. She is irreplaceable. But reflecting Diana’s need to be “seen” to have a place in the family – that competition was always going to lead to an all-out war. Diana’s connectivity with people. Her natural empathy and her need to reach out. I wanted us to reflect that– she gave the people what they wanted. A fairytale, a princess. But I also felt that with being the “People’s Princess” there was a cost. She was adored by the public and shone when surrounded by them – and that only reflected her own sense of isolation and loneliness.

The Crown S4. Picture shows: Diana Princess of Wales (EMMA CORRIN). Filming Location: Military Hostel Front, Malaga

 

PICTURE SHOWS: Queen Elizabeth II (OLIVIA COLMAN). Filming Location: Lyceum Theatre

 

What stands out about The Crown is its scale. But it’s done so in a way that isn’t gratuitous. How do you approach things visually to keep things grounded?

I love that you say that it’s not done in a way that’s gratuitous! It’s something I intensely focus on. It’s allowing the audience to experience the scale of the lives the Royal Family lead without it being self-conscious. These homes, castles, jubilees, public crowds are extraordinary to those of us who lead ordinary lives but not to our characters – to them they are just ‘work’ and ‘home.’ What I love is to continually push to find ways to allow the audience to experience these lives by keeping it visceral and building on the sensation of what it must be like to live as the Royals do. Being casual about the opulence and formalities allows you to have fun with where you take the audience.

 

Olivia Colman and Tobias Menzies in ‘The Crown.’ Courtesy Des Willie / Netflix

 

The Crown has such a fantastic cast. How do you like approaching things in order to try new things?

The Crown has a generous schedule which does provide the kind of directorial room for you to take risks and push the experience for the audience. It’s been such a gift to take one cast through two seasons and then to start an entirely new cast off in these last seasons. It’s always challenging for the new cast to walk in the shoes of those who have played the roles before them. I did find there was a joy and freedom for our cast who developed from Season 3 into Season 4.

How so?

Each of them gained confidence and surety about who they were portraying. And this also meant we could push the filming to find those magical unexpected moments of reflection. I always love shooting a little off-script, allowing a bit of emotional anarchy and surprise to find its way into the filming. It’s a huge privilege to work with a writer that encourages that kind of directorial risk-taking.

Picture shows: Priness Diana (EMMA CORRIN) and Prince Charles (JOSH O CONNOR) Photo by Ollie Upton

 

What makes the series so unique to go back to?

There’s an extraordinary team behind it who gives you incredible support. Hands down, these are the best producers I’ve ever worked with. Peter Morgan is brilliant, generous, and funny. You’re encouraged to push your individual point of view and because the scripts are muscular and sparse there’s amazing freedom in your translation of the material. I love working like this, it pushes you to be risky, expansive, and authorial – what director wouldn’t want more of that!

Featured image: LONDON, ENGLAND – SEPTEMBER 19: Jessica Hobbs celebrates winning the Emmy award for ‘Outstanding Directing for a Drama Series’, at the “The Crown” 73rd Primetime Emmys Celebration at Soho House on September 19, 2021 in London, England. (Photo by Gareth Cattermole/Getty Images)

This article was originally published on The Credits.

Categories
Copyright Industry

REVISITING SETTLED TENETS OF INDIAN COPYRIGHT LAW: ALLAHABAD HC’S REFUSAL TO STAY RELEASE OF THE FILM ‘CHEHRE’

The Allahabad High Court’s recent decision in Uday Prakash v. Anand Pandit and Anr. [FAO (D) 432/2021; Order dated 27th August 2021] was particularly illuminative with respect to certain established principles under Indian copyright law, while also shedding light on the procedural requirements in a quia timet action and applications for temporary injunctions. The Court herein was hearing an appeal from an Order of the Ld. District Judge, Ghaziabad, wherein the Plaintiff-Applicant’s application for temporary injunction on account of infringement of copyright was rejected. A summary of the brief facts followed by the Court’s findings and a brief reflection / analysis of the same is provided below:

BRIEF FACTS

The Plaintiff had instituted a suit before the District Judge, Ghaziabad, for infringement of copyright owned by the Plaintiff relating to a literary work titled ‘Highway-39’ (“Plaintiff’s Work”), which he had also gotten registered on 16.07.2007 with the Copyright Office at New Delhi under Registration No. L-28822/2007. The Plaintiff claimed to have discussed the Plaintiff’s Work with a Mr. Mazhar Karman, as he had assured the Plaintiff that he will show the Plaintiff’s Work to a few prominent producers in the film industry, which included Defendant No. 1.

The Plaintiff further claimed that, in June 2019, he came to know from ‘reliable sources in the film industry’ that Defendant No. 1 was producing a movie titled ‘Chehre’ (“Impugned Work”) which is very similar to the Plaintiff’s Work. Defendant No. 2 is the director of said movie, and was accordingly impleaded in this suit as well. The Plaintiff sent a cease-and-desist legal notice to the Defendants on 14.06.2019, asserting that the Impugned Work infringes copyright in the Plaintiff’s Work and accordingly seeking stoppage of production of the Impugned Work. However, the Defendants replied to said notice on 29.06.2019, wherein it wholly denied any copyright infringement by the Impugned Work.

It is also notable that in the Written Statement filed by the Defendants, a similar stance was adopted and it was asserted that the Plaintiff’s Work was devoid of ingenuity / originality and was merely an adaptation of the novel, ‘A Dangerous Game’, by Friedrich Durrenmatt. It was further contended that the Plaintiff’s suit was merely a quia timet action (as the Impugned Work was not to be released in February 2020, as was alleged by the Plaintiff), which was founded on unreliable sources and erroneous apprehensions.

Asides from the overarching issue of infringement of copyright in the Plaintiff’s Work, the Court in this appeal was also dealing with / revisiting the following pertinent legal issues:

  • Is the Defendant obligated to provide access to the allegedly infringing work (herein, the script of the Impugned Work) to the Plaintiff, in order to allow the latter to substantiate its claims of infringement of copyright?
  • What are the appropriate legal principles to be applied while dealing with a quia timet action, specifically when such action is purportedly instituted on the basis of tenuous apprehensions?
  • Can the Defendant be deemed to have ‘access’ to the original work on the basis of merely vague assertions to that effect?

FINDINGS OF THE COURT

At the outset, the Court reiterated the settled legal principles to ascertain whether a prima facie case for infringement of copyright, in an application for temporary injunction, is made out. Namely, the Plaintiff’s Work must be shown to be an original work, the Defendant should have had access to the same and the Impugned Work must be shown to be substantially similar to the Plaintiff’s Work. The Court then proceeded to apply this criteria to the instant factual matrix, and observed as follows:

“28. Now, the question whether a prima facie case is made out, is intrinsically connected to the cause of action regarding infringement of the copyright alleged. It is true that in order to establish a prima facie case, in an action for infringement of copyright, there have to be pleadings to establish that the literary work, of which the plaintiff claims infringement by the defendants should be shown to be the plaintiff’s original literary work, in the sense that the work is at least original rendition of a known theme with the plaintiff producing it, employing his knowledge, labour and skill. In addition, it has also to be established that the defendant had access to the plaintiff’s work, and that the offending script is substantially similar to the plaintiff’s script. Here, there is no doubt about one fact that the plaintiff holds a copyrighted work. But beyond that, the pleadings are utterly vague. There is an assertion to the effect that the plaintiff discussed the copyrighted work with Mazhar Kamran, but it does not say that he showed the copyrighted work to Kamran or handed it over to him. Therefore, there is a very vague case pleaded about the intermediary who could have possibly palmed off the copyrighted work to the defendants, on coming to know of its contents. A mere discussion of a work involving intellectual intricacies with another is not a case enough to impute that other with knowledge of its contents; and knowledge good enough to share it with a third party. The pleadings, therefore, are woefully vague about the access of the defendants to the copyrighted work.

29. The next assertion in the plaint that the plaintiff was given information about defendant no. 1 producing the feature film, that is essentially similar to the copyrighted work, is also utterly vague. It is set out in Paragraph no.5 of the plaint. The plaintiff does not name the source through which he came to know that the feature film is based on a script that is a plagiarized version of the copyrighted work. The terms employed in the relevant pleadings are “reliable source/sources from the film industry” which can hardly go to make for a prima facie case or a triable case for the grant of a temporary injunction in an action for infringement of copyright.

30. There is another issue which is required to be addressed. It is connected to the fundamental issue about whether the plaintiff at all had a cause of action to proceed for infringement with the kind of allegations that find place in the plaint. Prima facie, the plaintiff never had occasion to see what the contents of the script leading to the feature film were, the movie having not been released as yet and certainly not until time the suit was filed. The plaintiff has inferred that it is a copy of his work on the basis of some hearsay, that he has expressed through vague allegations in the plaint, describing them as reliable sources from the film industry. The entire action is, therefore, based on the plaintiff’s conjecture. This cannot be the basis of an action for infringement of copyright.”

In conjunction with the aforementioned observations, the Court also stated that in a quia timet action, the evidence about threat of injury should be tangible and concrete and cannot be based off bald assertions and hypothetical facts. That is to say, the burden of proof in a quia timet action is much heavier than in a case where an actual injury has already occurred. Although the Plaintiff tried to rebut the Court’s findings in this regard by asserting that the potential threat of injury has become increasingly potent in light of the impending release of the Impugned Work, the Court rebuffed this contention as the Plaintiff had still failed to make out a prima facie case on the similarity between the two works. It was reiterated herein by the Court that the Plaintiff’s case was built on mere hearsay and conjecture, and such vague pleadings do not meet the requisite threshold to make out a prima facie case of infringement of copyright.

At this juncture, the Court also dealt with the Plaintiff’s contention that its failure to further substantiate its pleadings must be attributed to the Defendant’s refusal to provide access to the script of the Impugned Work, as in the absence of proper access to said script the Plaintiff could not provide an in-depth comparison of the alleged similarities between the two works. The Court opined that such refusal on the part of the Defendant was an ancillary issue, with the suit more likely to fail or succeed on the questions of whether the Defendant had access to the Plaintiff’s Work in the first place and whether an ordinary person upon comparing the two works would conclude that the latter work is a copy of the former. Relevant observations in this regard are reproduced below:

“39. Therefore, the question that is required to be addressed is not about the burden of proof, or so to speak, the defendants’ burden as the plaintiff claims, once they (the defendants) opposed the application for discovery to disclose the contents of the script that is the basis of the feature film, but whether the plaintiff has a triable case pleaded on the parameters of an action for infringement. It has already been held that there is absolutely vague pleading to show that the defendant could have had access to the copyrighted work. The Court in Mansoob Haider no doubt, has said that failing on the point of access, the plaintiff can still succeed, upon showing that on a comparison of the two works, an ordinary person would inevitably conclude that defendants had copied the plaintiff’s work. There is some doubt whether access has to be necessarily proved, but assuming that it is required to be proved, it would still be necessary for the plaintiff to plead and show that an ordinary person, in comparing the copyrighted work and the feature film, would inevitably come to the conclusion that the latter is a copy of the former.”

Pertinently, the Defendant had agreed to place upon the copy of its script before the Court (although the Plaintiff was still denied access to the same). Therefore, the Court was able to undertake a comprehensive assessment of the two works and to compare similarities (if any) between these works. Upon doing so, the Court agreed with the Defendant’s contention that the works are inspired by the novel, ‘A Dangerous Game’, which thus constituted the underlying idea behind both works. However, as per well-settled principles copyright law, what is material is the treatment / expression of this idea in the two works. Keeping this in mind, the Court finally found that the common theme / idea behind the two works has been expressed in a materially different and distinct manner, and thereby no case for copyright infringement can be made out at this interim stage. The Court did however expressly remark that its observations pertain to the temporary injunction alone, and a final expression on the similarities of the two works could only be delivered after trial has been conducted. The Court also briefly remarked on the potential remedies to be provided to the Plaintiff, in case he succeeds in trial, and also directed the lower court to expedite trial in the instant suit. The Court’s final observations are reproduced below:

“54. There is, thus, prima facie a materially different and distinctive development and treatment of the same theme in both the scripts. In the prima facie opinion of this Court, there is, apart from the fundamentals of the basic theme that appear to have come from a common source, no such distinctive feature in the copyrighted version that have been prima facie plagiarized. It must be remarked here that whatever comparison has been done, is not, in any manner, a final expression of opinion on merits about the distinctive similarities or the dissimilarities. That is something that has to await trial, where wholesome evidence would now be led. All the remarks here are limited to the decision of the temporary injunction matter and nothing more.

55. Now, a still further issue that is required to be examined is what would happen if at the hearing, the plaintiff were to ultimately succeed. Would damages alone be recompense enough? There is relief sought by way of a decree for rendition of accounts of the advance amount received by the defendants from the distribution companies, television channels, OTT platforms, television networks by selling distribution rights/ streaming rights of the feature film, infringing the plaintiff’s copyright. The said decree would entitle the plaintiff, if he succeeds, to proportionate proceeds on account, as may be determined that the film earns. But, apart from that, if the copyright is ultimately held to be infringed at the trial, monetary compensation may not be recompense enough. It is, therefore, to be ordered that if the plaintiff succeeds, all further displays of the feature film shall have to carry an acknowledgment, suitably to be displayed that the movie is based on the copyrighted work, which is the plaintiff’s authorship. Also, the trial of the suit is to be expedited. Since the learned District Judge is hearing the suit himself, he will proceed with the suit, fixing one date every week and endeavour to conclude the trial within four months.”

 CONCLUDING REMARKS

The Allahabad High Court’s decision is certainly a well-reasoned and comprehensive one, which delves extensively into settled tenets of Indian copyright law and reinforces the same. The idea-expression dichotomy drawn out in the instant case is in line with the findings of the Supreme Court in its seminal judgment in R.G. Anand v. Delux Films and Ors. [(1978) 4 SCC 118], and the Court’s detailed breakdown of the similarities (or lack thereof) between the two works is premised upon this dichotomy as well, on the basis of which it ascertained that a prima facie case has not been made out by the Plaintiff.

Additionally, the Court’s decision to not draw an adverse inference against the Defendant’s refusal to produce its script for the Plaintiff’s perusal is also prudent in light of this particular factual matrix, as there was no cause of action made out in the Plaintiff’s vague pleadings which could have been relied upon to compel the Defendant to disclose the script of its Impugned Work (which would have certainly had adverse commercial implications for the Defendants, given the massive scale of the Impugned Work and the numerous stakeholders involved in the production and distribution of such feature films). This aspect of the decision was also intrinsically linked with the Plaintiff’s failure to prove that the Defendant had access to the Plaintiff’s Work, thereby underscoring the importance of proving ‘access’ to an original work in a suit for infringement of copyright.

All-in-all, this decision of the Allahabad High Court helps fortify settled tenets of Indian copyright law while also providing further clarity on the relevant factors to be accounted for by a court of law while dealing with alleged copyright infringement (at the interim stage) in a quia timet action.

This article was originally published on IPRMENTLAW.

Categories
Blog Industry Media OTT

Here to co-exist: Broadcast during the Covid-19 pandemic

In this insightful interaction, Mr. Nagpal, MD & CEO, Tata Sky, shares his views on the ever-evolving nature of broadcast, how the sector adapted to the changes brought about by the Covid-19 pandemic, the demographic trends in India’s consumption patterns, and Tata Sky’s strategy going forward. He also shares engaging anecdotes from his extensive travels and experience in the sector.

On the evolving landscape in the broadcast sector, he said that it is this dynamic quality of the sector that makes it an exciting place to be, and that there hasn’t been a time when the broadcast sector wasn’t challenged or professed to be defunct in the future.

Commenting on the ways in which the sector adapted to the pandemic, he said that the broadcast sector was able to serve customers because it was in the process of digitising query-handling processes online before the pandemic struck. A major change that resulted from the pandemic was customer care executives taking calls from home, he remarked.

Regarding consumption patterns of the DTH consumer, Mr. Nagpal stated that the DTH consumer is no different from the cable, YouTube, or any other consumer, and likes to be entertained. He further explained that when there’s a major event like a cricket match or the election results are coming out, there is a certain shift from entertainment to that event, but the core entertainment segment still exists since not every consumer makes the switch.

When it comes to installations and sign ups, there are more subscribers coming in from villages than from cities. According to him, there are two reasons for this: one, the number of people living in villages in India consist of 65-70% of the population, and second, DTH is more amenable for villages since a tower connects 10 or more villages, while wire connectivity is a difficult task to establish in such conditions. Further, South India is a major contributor in new additions to installations since the South has always seen more film production and entertainment addiction, he observed.

Speaking about the opportunities for Tata Sky in the coming future, Mr. Nagpal said the fact that out of 280 million households in India, 100 million still don’t have access to a television is in itself a great opportunity. Further, converting a portion – if not all – of the 40-45 million homes that watch Free to Air, to paid subscribers remains a goal for the near future for Tata Sky.

Expressing his views on regulation, Mr Nagpal feels that there is a need for transparent dialogue between the regulators and industry players, with the aim to find a middle path. This transparency in discussions, which is currently missing according to him, is needed for both parties to do their jobs well.

Tata Sky’s latest offerings combine DTH viewing and OTT viewing both via a single device. When asked if this was a form of cord cutting, Mr Nagpal said that in India, television and OTT will always be “ands”, not “ors”. Elucidating further, he said with the changing digital landscape, some customers who have signed up for OTT have given up on a TV connection, but it is important to note that not all of those customers have done so.  Given that it isn’t cord cutting in the true sense, it only makes sense to adapt to distributing on-demand content if the Tata Sky customer wishes to watch it.

On Tata Sky’s encryption standards and preventive measures taken to tackle piracy, he revealed that the signal transmitted from Tata Sky is encrypted in a manner that it cannot be decrypted unless authorised by someone at the company. Further, in the event of someone trying to retransmit the signal, fingerprinting mechanisms such as the 8-digit alphanumeric code help in identifying the rogue connection and stopping it. Tata Sky takes piracy very seriously and is committed to prevent any infringement of content belonging to rightful owners, Mr. Nagpal maintained.

Speaking of traveling to customers’ homes – especially in villages – despite being in the broadcast sector, Mr. Nagpal said that broadcast is actually Faster Moving Consumer Goods and that it is important for broadcasters to meet with customers to figure out customer desires yet unfulfilled by the sector: “We first discover customer need and then use technology to create products and processes to fulfil them,” he stated.

For more insights, view our video with Mr. Harit Nagpal.