Introduction
Often we come across big scandals happening in the Bollywood over the line of filmmaking but the recent trend has observed these controversies in other fields also. Like recently the release of the show “Betaal” on the platform of Netflix was accused of plagiarism from a show that had been released a few years ago name the “Vetaal”. This has reached the Bombay High court. Before going into the intricacies of this controversy let us understand the two terms which will be used throughout that is plagiarism and copyright infringement.
Relevant Concepts to the Issue
Section 51 of the Copyright Act 1957 defined copyright to be infringed as:-
When copyright infringed.—Copyright in a work shall be deemed to be infringed—
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]”
(b) When any person—
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) By way of trade exhibits in public, or
(iv) Imports 2[***] into India, 2[***] into India,” any infringing copies of the work: 3[Provided that nothing in sub-clause (IV) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation.—for the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.
In simple words, the permission has to be obtained while using a thing for which only the owner has the exclusive right. The use of the copied work is different from the method adopted for doing such infringement. It may be direct or indirect or subconsciously done. However to prove such infringement the causal connection between the two said objects have to be established. There are only some permitted actions concerning copyright. There are common law exceptions and statutory exceptions. The latter mainly includes the fair dealing concept. Remedies are available for such infringement. This includes civil remedies which may be for the bifurcated in two preventive civil remedies and compensatory civil remedies. Majorly one is either entitled to injunction or damages. Every right when infringed is subject to some remedy. Another concept that needs to be understood is that of plagiarism. It simply means using some other person’s ideology without even acknowledging him as the source. This amount to theft just like in other forms. The term copyright has a very wide amplitude. It includes original literary works, computer programs, dramatics, musical, artistic cinematographic films, sound recording, and their adaptations. Come into current question latest deal with how Netflix handles copyright based on copyright laws. The major component is that it is dependent upon the services.
The exclusive right of distribution and its limitation to First sale doctrine; The owner can’t have control over its product in the secondary market. Because of such exclusive rights, Netflix has to have permission from the owner, and the process of negotiation does begin. This acts as a third party between the owner and the public. In general terms, we call it the third party license. It involves the transmission of a copyrighted work from some source here Netflix to the public. Every person who believes this work to be unique can get it registered under the said act for prevention of further duplication. A person has an exclusive right over its work.
Current Controversy- Alleged Grounds
“Betaal”first zombie horror space series has been made available on Netflix from May 24 recently. The plot deals with the mission in which to build the highway the natives of the Camper forest are displaced. The city series has been in the controversy on the ellipse ground that it contains plagiarised content from “Vetaal”. An application for copyright infringement has thus been made.
The plaintiff has contended that the show “Betaal” trailer released on May 7 2020 shows many reflections that are incidental to the show “Vetaal”. He was convinced that the copyright of the plaintiff has been influenced by Netflix for its releasing of the show “Betaal”. He contended 13 similarities based on the trailer. He ordered an ad-interim order for the series not to be released based on the registered copyright work “Vetaal”. He believes the storyline of the “Vetaal” is an original transcript of the plaintiff and a fictional story made out on his imagination including the characters, location, props, etc.
The upcoming series of “Betaal” is a case of infringement of the copyright and the content is plagiarized-this is so alleged. There were specific allegations for example the defendants said if it was the original work of the plaintiff how could they have possibly come to know particularly about defendant number 3 who is the author of this web series. This was answered that the plaintiff shared his work with many known and established producers or filmmakers and was also in contact with Netflix through a said person via emails.
It was observed that emails between the second people on Netflix don’t show any link between them. This became one of the reasons that became against the plaintiff. It was difficult to believe that the said work to be copied. Another point that was of the delays and latches. this involved an affidavit that Netflix had which affirmed on May 21 that not only an averment but evidence was also produced to the fact that several prints and online publication from dated July 16,17 of 2019 for the general readership and popular to trade and business of movies and general entertainment carried reports of Netflix original web series called “Betaal”.
The third point of relevance that made the dismissal of the plaintiff claim was that the word “Betaal” found its source in Hindu mythology whereas “Vetaal” is that it has supernatural powers with great prowess.
The interim application stands dismissed. The leave of the court has been shot for the amendment of the application. Due to the outbreak of the COVID-19 pandemic, a nationwide lockdown has been imposed. Because of these 8 weeks, time was granted
The Bombay High court refuses to stay the streaming of the Netflix series “Betaal” on grounds of allegations of copyright infringement. The application has been rejected as of now for damages that will be issued if the said plagiarism is said to be proved.
The issues of copyright infringement are very complex. It becomes difficult to prove that the set copyrighted work was not in my knowledge and I do on my mind application have made the said work. To prove it bonafide why would the court believe? It has in front of it two works that seem too identical. The onus is on both sides to arrive at a set of.
Conclusion
The current controversy between the two shows has found the attention of the court. It is not only the parties who found it difficult to the basis of their claims it is also difficult for the court to decide. On the basis of the evidence, it has to grant either party of the remedies available under the said act.
By-
Vanshika Garg
(Amity Law School, Noida)
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