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Vanderbilt Journal of & Law

Volume 7 Issue 2 Issue 2 - Spring 2005 Article 4

2005

Copyright Infringement in the Indian

Rachana Desai

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Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons

Recommended Citation Rachana Desai, in the Indian Film Industry, 7 Vanderbilt Journal of Entertainment and Technology Law 259 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss2/4

This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Copyright Infringement in the Indian Film Industry

By Rachana Desai"

On July 7, 1896, 's first India, unlike America, has several cinematographic film was shown in film industries. This Note focuses on the .1 Today, India's mammoth film largest of these industries: , the industry produces more movies than any center of language cinema. In recent other country in the world and employs years, nearly eight out of every ten over two million people. 2 In 2001, India's Bollywood scripts have been "inspired" by entertainment industry (which includes one or more . 7 Previously, film, music, , radio and live this widespread problem was not visible to entertainment) was one of the fastest those outside of India. The emergence of growing sectors of the economy, the and better global experiencing over a 30% growth. 3 Cable communications, however, have made television generated the most revenue, Westerners more aware of the cultural copy followed by television , film situation in India. In 2003, best-selling and television production.4 The film fiction writer Barbara Taylor Bradford brought a copyright infringement "To date, no Hollywood suit against Sahara studio has attempted to allegedlyTelevision for

enforce~television its copyrights making a against Bollywood" series out of her , A Woman of 8 Substance. industry, on average, produces After winding through the legal system, the approximately 1,000 movies annually,5 sells Indian Supreme Court refused to uphold a about six billion tickets and grosses more lower court injunction against Sahara and than $72 billion globally. 6 Until recently, allowed the television show to go on the air.9 however, the Indian film industry received Bradford, although frustrated by her loss, very little international acknowledgment. chose not to pursue the matter further.10 This lack of recognition may have In light of this case, the following contributed to the longstanding practice of question arises: what implications does the producing "cultural copies," as opposed to Bradford case have for the protection of original works. A cultural copy is nearly a foreign copyrights in India? To date, no direct copy of a movie or other from Hollywood studio has attempted to enforce one cultural to another. its copyrights against Bollywood. 1 With the attention garnered by the Bradford case and FILM &TV

the increased globalization of entertainment, WTO is fairly new, its predecessor, the however, American studios are more likely General Agreement on Tariffs and Trade to become aware of copies of their films. It (GATT) was signed in 1948.16 In contrast to is inevitable that this awareness, coupled with the WTO, the GATT's mandate was strictly the financial success of many of Bollywood's limited to trade issues. 17 The WTO is copies, will lead some American controversial because it expanded upon the to bring suit in India. GATT to include services and intellectual Part II of this Note explores the "if a perso n's copyright was World Trade violated in ai nother country, the ( W T 0 ) copyright ho Ider would have no framework for dealing with recourse other than enlisting their copyright and native countr taking the the governing y's help in laws and cases ( case to the International Court of) in India. The Trade-Related Justice (ICJ)" Aspects of Intellectual Property Rights (TRIPS) is the property agreements. 8 Perhaps most current international agreement on distressing to its critics, however, is the fact copyright. This section explores the debate that the WTO also covers certain health and leading up to the promOlgation of the environmental regulations that can be agreement and the provisions of the interpreted as trade barriers. 19 agreement itself. It also addresses the The WTO makes decisions through a Copyright Act of 1957, the domestic law consensus of its member states.2" Unlike relevant to this discussion. Finally, this section other international , an examines Bradford v. Sahara Television, which executive board or other type of is the most recent case involving a foreigner organizational head does not control it.2' The attempting to enforce her copyright member retain all decision-making protections in India. 2 Part III of this Note power.2 2 All states have equal representation; illustrates the extent of the cultural copy no one state has veto power. 23 The problem in Bollywood and provides specific International Monetary Fund and the World examples of possible copyright infringement. , on the other hand, give weight to a It explores possible results and roadblocks in 's vote based on its standing within the light of the applicable domestic and international economic system. 24 Over three- international law and the implications of the fourths of WTO member nations are Bradford case. designated by the United Nations as "developing" or "least-developed" countries.25 Perhaps this fact, combined with I. International Law the decision-making mechanism, explains the inclusion of special provisions for these A. Overview of WTO countries providing, among other things, The World Trade Organization was longer time for compliance, infrastructure created by the 1986-94 Uruguay Round support and ways to increase trade 26 negotiations and is comprised of 146 member opportunities in all WTO agreements. nations. 13 Its members account for nearly 97% of global trade. 14 The main purpose of B. The TRIPS Debate the WTO is "to help trade flow smoothly, WTO member nations are divided into freely, fairly and predictably."' ' Although the three categories: developed nations,

Spring 2005 Copyright Infringement in the Indian Film Industry developing/transitional nations, and least- minimum levels of protection for the IPR of developed nations. 27 The United Nations has other member states.3 9 Each member state designated forty-nine countries as being least- should, with respect to IPR, treat the citizens developed; thirty of these are WTO of other member states just as it would its members. 28 There is no set definition for the own citizens.40 This principle is known as ' 41 other categories. Rather, each remaining "national treatment.' The rules set forth at 29 member declares its status. the World Intellectual Property It is useful to think of the debate over Organization's Convention for the TRIPS in terms of these distinctions as well. Protection of Industrial Property (dealing Developed states, like the , are with patents, industrial , etc.) and the generally the ones pushing for stricter Berne Convention for the Protection of international protection of intellectual Literary and Artistic Works (dealing with 4 2 property rights (IPR) because they produce copyright) bind all of the WTO states. and export most of the world's intellectual TRIPS incorporates Article 12 of the Berne property.30 Developing states, such as India, Convention, which provides that "[a]uthors favor increased international protection, but of literary or artistic works shall enjoy the also need stronger domestic protection to exclusive right of authorizing adaptations, encourage their own industries to devote arrangements and other alterations of their resources to intellectual property works.."43 The copyright term of protection development. 3' Finally, least-developed is the life of the author plus fifty years, states, because they are net importers of although there are some provisions for shorter intellectual property, generally attempt to terms of protection.44 Article 12 also provides weaken copyright protections. 32 Thus, the that, when the term of protection is not based debate over TRIPS juxtaposes the first two on the life of a human being (e.g., when the groups against the third. author is an institution or corporation), then The WTO's Uruguay Round of trade the term of protection must be at least 50 talks eventually culminated in several years.4" TRIPS, like the Berne Convention agreements, one of which was the agreement before it, protects expressions but not "ideas, on Trade-Related Aspects of Intellectual procedures, methods or operation or 4' 6 Property Rights (TRIPS). 33 Signed in mathematical concepts as such. Marrakesh in April of 1994, TRIPS marked the first significant inclusion of IPR in a trade D. Enforcement and Dispute agreement. 34 The Uruguay Round Settlement agreements took effect on January 1, 1995. TRIPS surpasses other intellectual Developed nations had one year from that property agreements because it has a viable 35 date to bring their laws into compliance. enforcement mechanism. The major Developing countries had five years, while problem with the Paris and Berne the least developed countries had eleven Conventions is that they lacked the ability to years.36 Since TRIPS is not self-executing and enforce compliance. 47 Professor David claims cannot be brought on the basis of Nimmer opines that, under the pre-TRIPS TRIPS in domestic courts, all WTO member framework, if a person's copyright was nations must pass domestic laws that comply violated in another country, the copyright with the agreement. 37 This Note examines holder would have no recourse other than standards, enforcement, and dispute enlisting the native country's help in taking settlement as the major facets of the the case to the International Court of Justice agreement. (ICJ). 48 This is due to the Berne Convention's failure to create a private cause of action C. Standards provision.4 9 Even this recourse, however, is Among other things, TRIPS deals with largely illusory, since, as of the date of this copyright, trademarks, geographical Note's publication, no copyright case has indications and patents. 3 The agreement ever been brought before the ICJ.' 0 Instead mandates that all WTO members create of relying on the ICJ, TRIPS links

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enforcement to judicial mechanisms within timetable where a typical case, including member nations and to the WTO's dispute appeals, should take no more than fifteen 51 settlement framework. months. 62 Under the GATT, dispute rulings were adopted yk~ c~c, 63 "By tying copyright violations Thus, one dissenting vote to the imposition of trade could block a

the country sanctions, TRIPS hopes to L ruling, meaning so against which encourage the re spect of the ruling was levied could global copyrights" simply vote it down.64 A DSU panel's ruling, Part III of TRIPS lays out civil and however, is adopted unless a consensus of 65 criminal enforcement procedure as well as WTO members objects to the ruling. available remedies. 52 The enforcement The first step to dispute resolution provisions aim to ensure that all member under the DSU is consultation between the nations have some sort of enforcement countries involved in the dispute. 66 A panel mechanism within the country that maintains is appointed only if the countries cannot due process, does not unnecessarily create reach a solution on their own. 67 The panel trade barriers, and has some method for consists of members from the Dispute judicial or administrative review. 53 Although Settlement Body 6 and has the power to hear it mandates an internal enforcement the complaint, gather evidence, and issue a mechanism, TRIPS is unclear as to exactly report.69 Unless it is rejected by a consensus 70 what measures a developing nation must take of members, the report becomes a ruling. to facilitate internal enforcement. 54 For Either side has the to make an appeal 7 example, the agreement says, "nothing in this to the WTO's permanent Appellate Body. ' [p]art creates any obligation with respect to The losing state then has a period of time to the of resources.15 This correct the problem and bring its laws into indicates that developing nations need only compliance. 72 If proper action is not taken, to exercise "good faith" efforts to comply the complaining state may ask the WTO to with TRIPS.56 Also, a state is not required to allow it to impose sanctions. 73 Ideally, the create a judicial system for IPR "distinct from sanctions should be in the same sector as the 57 that [of I the enforcement of law in general." dispute. If the Dispute Settlement Body For a country whose regular judicial system deems that to be ineffective, then it may is unable to provide even the minimum due authorize cross-sectorial sanctions. 74 The process requirements, it is unclear whether crucial point of the external enforcement it is excused from the requirement to update provisions is the availability of cross-sectorial its judicial system in accordance with TRIPS retaliation. 75 Professor Nimmer provides a 58 standards. useful hypothetical: "[If] Korea is adjudged Disputes arising under TRIPS between a copyright violator [by the panel], then WTO members are subject to the WTO's Korea must proceed to honor copyrights in Dispute Settlement Understanding (DSU). 59 the American movies. If it does not do so, Prior to the Uruguay Round, disputes were the United States is permitted to slap a settled under the GATT framework.60 Since punitive tariff on the importation of 76 the GATT procedures did not contain any Hyundai's from Korea." fixed timetables, some cases languished Thus, countries are compelled to indefinitely in the system. 61 The DSU effectively protect copyrights of other provides greater structure, setting forth a member nations. They can no longer hide

Spring 2005 262 Copyright Infringement in the Indian Film Industry behind inefficient or corrupt legal systems.7 7 immediate trade sanctions. 7 States are By tying copyright violations to the placed on this list if they (1) "have the most imposition of trade sanctions, TRIPS hopes onerous or egregious" policies towards IPR to encourage the respect of global protection, (2) their policies "have the copyrights. 7 However, much of the system greatest adverse impact (actual or potential) still relies on the compliance of the developed on.. .United States products," and (3) the nations.79 Inequalities among nations make state is not participating in or making it difficult at times for TRIPS to operate as progress in negotiations with the USTR. 8 envisioned.80 For example, if the panel "Despite its substantial adjudges the domestic de jure copyright United States to be in protections, India remains on violation of a developing the "Priority Watch List" country' s primarily because of high piracy copyright and the United (rates and lack of appropriate States refuses to comply, enforcement measures' then even cross-sectorial retaliation would most likely Less harmful violators are put on the fail to suffice as an effective remedy for the "Priority Watch List." 89 These states provide developing country.8 ' Even though the DSU less than optimal copyright protections, but is a vast improvement over the previous are not subject to immediate sanctions. 90 system under the GATT, its legitimacy still In 1991, India was placed on the depends on developed countries' recognition "Priority Foreign Countries" list primarily of the panel's authority and adherence to the due to its "denial of adequate and effective 2 panel's decisions. intellectual property protection.. .especially in the area of patent protection." 91 As a result, the United States suspended duty-free II. The United States' Response privileges for $60 million U.S. of Indian trade The United States is a party in several (primarily pharmaceuticals and bilateral and international agreements dealing chemical products) under the Generalized with IPR and trade in general.8 3 But many in System of Preferences (GSP). 92 During the the United States, citing the importance of next year, more chemicals were added to the intellectual property to the economy, are GSP, thus increasing the benefit of suspended 93 hesitant to rely solely on international trade to $80 million U.S. agreements for the protection of IPR. The Omnibus Trade and Competitiveness Act of A. Indian Law-Copyright 1988 ("the Trade Act") strengthened IPR Act of 1957 protection globally by tying it to trade The "Special 301" trade sanctions sanctions.8 4 Under the Trade Act, the United prompted a response by the Indian States Trade Representative (USTR) has government. 94 In 1994, the Copyright Act of discretion to initiate a "Special 301" 1957 was amended to include satellite investigation,8 5 which calls for the USTR to broadcasting, computer software, and digital evaluate the level of intellectual property technology to the areas traditionally 8 6 trade protections provided by other states. protected by copyright (such as original Nations with the worst policies or practices literary, dramatic, musical and artistic works, are placed on the "Priority Foreign , films and sound Countries" list and may be subject to recordings). 95 These amendments brought

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the Act into full compliance with the products have some similarities. 10 The requirements of TRIPS. 96 The International Indian Supreme Court upheld this concept Intellectual Property Alliance (IIPA) 97 ranks in the seminal case of R.G. Anand v. Delux India's amended 1957 Copyright Act as one Films. "I In this case, the author of the play of the most modern copyright statutes of any Hum Hindusthanisued a country. 98 Despite its substantial domestic for making a movie that was allegedly an de jure copyright protections, India remains "exact copy" of his play.1 12 The Supreme on the "Priority Watch List" primarily Court held that, despite some similarities, the because of high piracy rates and lack of movie did not infringe the play's copyright 99 appropriate enforcement measures. because there were substantial dissimilarities 1 13 Indian copyright laws resemble between the two. American copyright laws. In order to obtain To determine if an author's product a copyright on a film, the work must be constitutes an infringement of another's original. 010 Originality is defined as "... copyright, Indian courts use the "lay [originating] from the producer and not a observer test."11 4 If a person who sees both copy of some other copyrighted work."' 01 works "is clearly of the opinion and gets an Copyright generally protects two classes of unmistakable impression that the subsequent 10 2 rights: exploitable rights and moral rights. work appears to be a copy of the original," there is a "Althouiah Bradford was copyright violation.1 1 5 To unsuccessful in her copyright constitute infringement claim, the case is copyright infringement, momentous because it represents the second work "must be one of the few times the Indian [a] substantial entertainment industrv has been and material" copy of the sued for its alleged plagiarism:' first."6 Simple additions, Exploitable rights (also referred to as omissions, or modifications to the original "economic rights") are those which the owner work do not defeat the infringement claim.117 of the work may commercially develop. 03 Furthermore, substantiality is a measure not The copyright owner has the exclusive right only of the quantity of work copied, but also to make copies, adaptations or photographs of the quality of the work copied."" of the copyrighted material and the right to Therefore, if the copied concept is especially license these rights to others.0 4 Moral rights original or novel, then the infringement are those which the author of the work will action may have stronger grounds." 9 always possess.10 5 Included in moral rights There is no infringement where are the right to decide when and if to publish similarities seem coincidental and there are the work, the right of authorship, and the "broad dissimilarities which [negate] the right to prevent any alteration that may harm intention to copy the original." 12 If the two an author's honor or reputation. 10 6 Several works have the same theme, but are cases in India and the U.K. uphold the developed differently, then there is no author's exclusive right to derivative works. 017 copyright infringement because the second Ideas, concepts, and facts cannot be work constitutes a new work.' 2' Even after copyrighted. 08 Only the "form, manner and the plaintiff (i.e., the party seeking to enforce arrangement, and expression of the idea" are the copyright) passes the similarity bar, he copyrightable. 109 Thus, different authors are must still prove a causal connection: that the not prevented from independently defendant actually relied, either directly or developing the same idea, even if their indirectly, on the plaintiff's work.122 Intent

Spring 2005 264 Copyright Infringement in the Indian Film Industry

to infringe on a copyright is not a requisite "...why do there seem to be element of the claim, as the so many blatant, but un- infringement may be litigated, copyright violations 123 subconscious. Substantial in the Indian movie objective similarity industry?" between the two works may be used to infer a causal connection. 124 With appoints the High Court Chief Justice. 137 all of these tests, the plaintiff has the burden Then, in consultation with the High Court of proving the infringement by "clear and Chief Justice, the President appoints the other cogent" evidence. 125 In the end, there is no justices of the court. 138 The President retains 39 bright line rule. The Indian copyright rules the power to transfer the justices at will. are applied on a case by case analysis because The High Courts supervise all of the lower "[m]uch will depend on.. .the extent of the non-military courts in their jurisdiction and similarity and whether the labour and effort have the power to transfer constitutional bestowed upon one film has been issues to itself from the lower courts. 40 appropriated by the producer of another The district courts are subordinate to 26 film."1 the High Courts. 41 Each Indian state is divided into districts. 41 2 Each district has a B. Structure of Indian Courts session judge to preside over criminal matters The Indian Judiciary is similar to the and a district judge to preside over civil United States court system in that it is an matters. 143 The Governor of the state, in equal and independent branch of the conjunction with the state's High Court, government. 127 However, Indian courts appoints the judges.'44 A plethora of operate in one integrated system as there is subdistrict courts and people's courts handle no division between questions of state law lesser criminal cases and smaller village 45 and federal law. 128 The Supreme Court of disputes. India has original jurisdiction over disputes Over the years, the Indian Judiciary between the states or between the central has developed a reputation for inefficiency government and a state. 29 The Court has and ineffectiveness. 146 Since the 1970s, the appellate jurisdiction over all substantial judicial system has lost some legitimacy 130 issues of constitutional interpretation. because of the view that the branch has Additionally, the Court may hear a special become increasingly politicized. 47 appeal on any matter from any non-military Furthermore, Indian society is considered court.'3 ' One Chief Justice and twenty-five highly litigious, thus contributing to an associate justices sit on the Court. 32 The already substantial backlog. In 1990, the President appoints the Chief Justice. 33 After Supreme Court had a backlog of more than consulting with the Chief Justice, the 150,000 cases; almost two million cases were 48 President also appoints the associate pending in the High Courts. 134 justices. Below the Supreme Court are C. Bradford v. Sahara TV eighteen High Courts.135 Each court has Romance novelist Barbara Taylor original and appellate jurisdiction over cases Bradford was surprised to learn that one of arising in its territory.3 6 The President, after her best selling , A Woman of Substance, consulting with the Chief Justice of the was being made into a 260-part television Supreme Court and the governor of the state, series in India, Karishma - Miracles of

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Destiny.149 Bradford did not receive any of plagiarism.161 As mentioned above, Indian payment, nor had she authorized the copyright law protects expressions, not television series. A Woman of Substance is a ideas.162 Upon reading a summary of rags-to-riches story chronicling a woman's Bradford's novel and listening to the evidence rise from a servant to the head of an presented, Justice A.N. Roy said, "In [the international corporation. 15 Karishma - court's] opinion, this is just an idea. The Miracles of Destiny is a rags-to-riches story plaintiff cannot have a on a woman chronicling a woman's rise from a street making it from rags to riches." 163 The Court sweeper to the head of an international fined Bradford about $30,000 U.S. ($3,000 corporation.'l5 Both are told from the point for every week that the show was delayed) 16 4 of view of the main character, an old woman and ordered her to pay Sahara's court costs. looking back on her life. 152 Karishma is the Bradford again appealed to the Supreme most expensive series produced for Indian Court. 165 On August 4, the Supreme Court television, costing nearly 600 million Rupees upheld the lower court's substantive decision 15 3 ($13 million U.S.). but reversed its damage award. 166 Although Bradford, offended by the Bradford was unsuccessful in her copyright unauthorized use of her work, flew to India infringement claim, the case is momentous and filed suit in the High Court in because it represents one of the few times the early May of 2003.154 Judge Pinaki Chandra Indian entertainment industry has been sued 167 Ghosh issued an ad interim injunction against for its alleged plagiarism. Sahara Media Entertainment, the network set to air Karishma.155 Sahara appealed the decision, citing the incredible amount of III. Analysis money already invested in the project and As a result of international agreements the fact that Bradford had earlier filed a like the Berne Convention and TRIPS, 1 5 6 similar suit in the Mumbai High Court. domestic copyright laws are generally On May 12, the very day on which the series uniform and offer a high level of de jure was set to premiere, Justices A.K. Ganguly copyright protection. 168 As discussed earlier, and D.P. Sengupta, sitting on the division Indian law has provisions for protecting IPR that comply w i t h international "...almost eight out of standards. Inadequate every ten Bollywood scripts enforcement of these laws were "inspired" by one or remains the p r i m a r y more Hollywood films. problem for In d i a . 169 Therefore, the question arises-why do l 7 bench, vacated the stay. - Bradford there seem to be so many blatant, but immediately filed a special leave petition with unlitigated, copyright violations in the Indian the Indian Supreme Court to block the airing movie industry? of the program. 15 The Court reinstated the The first and easiest answer to this is injunction, but not before Sahara had already that Hollywood studios have yet to enforce aired the first episode.15 9 their copyrights against Bollywood studios. On July 21, 2003, the case came The Bradford case, however, garnered a great before the Kolkata High Court. 160 The Court deal of legal and media attention. Could it ruled in favor of Sahara and found no proof be a preview of similar cases to come?

Spring 2005 __266_ Copyright Infringement in the Indian Film Industry

Barbara Taylor Bradford thinks there is a Almost eight out of every ten greater possibility that people will seek to Bollywood scripts were recently "inspired" 170 enforce their copyrights internationally. by one or more Hollywood films. 8' There She says, "[w]e have become a global village. are who are so adept at Nobody in the past knew "The United States what was going on in India but entertainment industry as a whole now with is becoming increasingly aware of and the Internet," it possible copyright infringements is much easier to discover.'71 and increasingly litigious as it is Once a forced to deal with new Hollywood studio becomes ." aware of Bollywood taking "inspiration" from one of plagiarizing that they can have a cultural its films, can the studio enforce its copyright copy of a Hollywood movie ready by the very against a cultural copy? same day as that film's North American 8 2 Hollywood producer Ashok Amritraj premier. 1 In fact, many producers and believes that "Indian movies are so far under directors prefer cultural copies because the 183 the radar [that] no Hollywood executive is stories have proven box office appeal. aware" of the copying. 172 This lack of awareness, however, will likely not continue A. The Copies for long. The United States Census Bureau Yash Raj Films' Mere Yaar Ki Shaadi reports that the number of Indians living in Hai (which literally translates to "My Friend's the United States increased by nearly 106% Wedding") is said to be a cultural copy of My from 1990 to 2000.173 In its opening Best Friend's Wedding.14 The director, Sanjay weekend, Kabhi Khushi Kabhie Gham, a Gadhvi, takes exception to this, saying "you popular Hindi film, was shown on only can only draw a parallel with the title and 174 seventy-three screens in the United States. the plot."8 5 The copying is not limited to Even with its limited screening, the film still recent blockbusters, nor is it a recent managed to take in over one million dollars Bollywood phenomenon. In 1974, Narinder during its first weekend. 75 In fact, some Bedi's Rafoo Chakkar cleverly copied the story Bollywood movies get 25-30% of their of 1959's Some Like it Hot."6 It Happened One proceeds from overseas , with most of Night, the 1934 classic romantic comedy, was the exports going to the United States, allegedly "Indianized" into the 1992 box Canada, and the U.K. 176 Bollywood films are office hit Dil Hain Ke Manta Nahin.117 The also gaining popularity among non- copycatting does not stop with film, as Indians.177 In 2002, the Hindi movie Lagaan Karishma demonstrates; it has seeped into the was nominated for a "Best Foreign Language" small screen as well. For instance, Amitabh Academy Award. 178 Even non-Indian artists Bacchan, a well known Hindi film star, is the recognize the emerging popularity of host of a popular game show called "Kaun Bollywood in the West. Famous director Baz Banega Crorepati" which is almost a direct Luhrmann, inspired by a trip to India, paid copy, both in name and in substance, of "Who 188 tribute to Bollywood in Moulin Rouge with Wants to be a Millionaire." his over-the-top plot sequences, music, and Arguably, 2002's , shot in Los costuming. 79 Also, theater mogul Andrew Angeles, is a copy of 's Lloyd Webber scored a hit in London with . 89 The Times gave Bombay Dreams, his stage production of a this "delirious Bollywood reimagining of Bollywood love story.' Reservoir Dogs" "no points for originality."'190

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Similarly, the Times called it "a estimating $88.97 billion (U.S.). 198 In light singing and dancing Reservoir Dogs."191' The of the recent developments in the Bradford roughest review, from the Sydney Morning case, what enforcement options are open to Herald, opined, "forget method acting, the American studios? Bollywood film Kaante is an example of method ... the producers simply B. Sue in India stole their plot."'9 2 The paper was careful to Since TRIPS is not self-executing, a point out, however, that Tarantino borrowed Hollywood studio seeking to enforce its the plot line from 's City On Fire copyright in India cannot bring a claim (Long Hu Feng Yun). 193 Another Australian directly under TRIPS.'99 The studio must reviewer described Kaante as "derivative to utilize Indian copyright law. One of the first Hollywood.. .in nearly every way possible in problems the studio would encounter is 1 94 terms of plot, style, direction and music.' Indian producers' different cultural view of Despite the fact that Hollywood studios have yet to take to enforce its copyright in India action against the Indian film cannot bring a claim directly industry, it is apparent that "...aunder Hollywood TRIPS. The studio studio seeking must there is a problem. A utilize Indian copyright law." studio will likely try to enforce its copyright in the near future. The United copyright. The director of and Awara States entertainment industry as a whole is Paagal Deewana Vikram Bhatt told the Daily becoming increasingly aware of possible Variety "films are not about creativity, copyright infringements and increasingly originality or vision. They are about litigious as it is forced to respond to new entertaining audiences across the board. technologies. 195 For example, the Recording Once you understand and accept that an idea Industry Association of America (RIAA) has always existed before you did, then you look intensified its efforts to curb internet file- at the whole aspect of 'copying' in a different 200 sharing, a relatively new phenomenon. From light." the onset of its lawsuit campaign in If, for example, Artisan, one of the September 2003 through mid-June 2004, rights holders of Reservoir Dogs, chose to sue RIAA sued well over 3,000 individual file- the producers of Kaante in India, the court swappers for copyright infringement. 196 As would apply the lay observer test. Artisan Bollywood films gain more prominence in would first have to show that there is enough America, movie studios are similarly bound of a similarity between the two films that an to try to enforce their copyrights. ordinary person would recognize Kaante as a Additionally, the United States government copy. Would people watching Kaante and has a considerable economic interest in Reservoir Dogs feel that one was a copy of the protecting intellectual property. American other? Although there are some plot copyright industries employ more people differences and the inclusion of several song than any one sector; in 2001, and dance numbers, Kaante is unmistakably they made up about 5.24% of the Gross based on the Tarantino film. 20 1 The plots are Domestic Product (GDP). 197 In the same year, largely parallel and there are nearly identical exports from copyright industries exceeded scenes, characters, and even dialogue. °2 those of all other major industry sectors,

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In addition to substantial similarity, Indian Studies at the of Iowa Artisan would need to show a causal concurs that Bollywood copies of American connection. The court would most probably films address different societal and cultural find that the similarities are substantial concerns.212 Thus, this narrow view of enough to infer a connection. Sometimes, copyright implies that no cultural or the copying is so blatant that directors "Indianized" copy could be a violation of actually play the Hollywood DVD for their copyright laws. Aabad Ponda, a lawyer for actors to show them how to execute a several Bollywood , does not think scene. 23 Kalpana Lajmi, a renowned Indian many American studios will even try to director in opposition to the Hollywood mount a copyright infringement case in India imitation trend, feels that "[s]ometimes the because "[f]or litigation in India, you need a regurgitation is so literal that it is difficult to terrific amount of time, money and energy digest. ' 24 Armed with this type of evidence, and most people are not ready to spend that it seems that Artisan would be successful in kind of time. '' 213 This leaves little hope for its efforts to protect its copyright. American studios hoping to protect their However, Indian courts have held that copyrights through the Indian legal system. a work "inspired" by another copyrighted work is not necessarily a copyright C. WTO Dispute Resolution infringement.2 5 Copyright infringement Since copyright industries are vital to hinges on whether a substantial portion of the United States economy and private the original work has been copied; as long as litigation in India will probably not result in the theme of the "inspired" work is treated success, the United States government may differently from its inspiration, there is no want to avail itself of the WTO's dispute violation. 20 6 In the Bradford case, the court resolution framework. Under the WTO based its decision on the fact that, while the framework, the United States and India rags-to-riches idea may have been copied, the would first enter talks to attempt to resolve expression had not. 20 7 Therefore, although the problem. If they were unable to reach a the director even admitted in an interview solution, then a panel is convened pursuant that Karishma was based on A Woman of to the DSU.214 Once the panel issues a report, Substance, °8 the Supreme Court refused to both parties have the opportunity to appeal. 20 9 uphold an injunction against the network. Many critics of TRIPS allege that it is The Reservoir Dogs case is stronger because a product of western imperialism. 215 At the Kaante does not just borrow the general time of TRIPS' enactment, developed nations theme or idea, but actually presents the same wanted an international agreement protecting scenes, characters, and plot devices. The only copyrights because a substantial amount of major differences are the language and the their gross domestic product came from addition of a few musical numbers. Kaante copyright industries. 216 Regardless, Indian 217 is basically an adaptation or derivative work law complies with TRIPS requirements. of Tarantino's movie. The problem, however, is one of enforcement. Karishma director Akashdeep Indian movie producers have been creating confessed, "I don't know why Indians make cultural copies of American films and such a fuss over originality. There are three remaking old Hindi films for decades. This books by Barbara Taylor Bradford, including has proven to be a difficult practice to limit. A Woman of Substance, Hold the Dream and The Indian judicial system is notorious for To Be the Best. We have Indianized [them]. I its inefficiency and corruption. 218 Although didn't want to take a chance with a new India is taking steps to correct the problem, script. ' 21 0 Many in the Bollywood an adequate solution is still far from the agree with writer-director present.219 It is important to note, however, Mahesh Bahtt's view that, "when you take an that TRIPS "does not create any obligation idea and route it through the Indian heart, it to put in place a judicial system for the changes entirely."2 1 Philip Lutgendorf, enforcement" of IPR, nor does TRIPS Associate Professor of Hindi and Modern mandate any specific allocation of resources

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for the judiciary.220 TRIPS does ask that "each member shall accord to the nationals of other Members treatment no less IV. Conclusion favourable than that it accords to its own This discussion, unfortunately, ends nationals with regard to the protection of on an unsettled note. Clearly there is a intellectual property," 221 and India meets this problem with cultural copies in India. standard. Although the domestic resolution Remaking and borrowing ideas from other of a case may take a significant amount of countries is nothing new and is not altogether time, the Indian Embassy says there are a bad phenomenon, so long as proper several intermediate measures available to authorization is obtained from the right litigants seeking to protect their IPR.222 holder. Rich Taylor, the Vice President of The decision will be difficult for the Public Affairs for the Motion Picture panel to make. 223 India provides sufficient Association of America, concedes, de jure protection of copyrights, but the de "[b]orrowing ideas, scripts and remaking facto protection is sub-par. If the panel rules them in different cultural contexts [are] a part in favor of the United States, India will then of international cinema" but the right way to have to bring its system in line with the do it is to obtain the proper license.230 panel's recommendations. One difficulty is India has, by most accounts, fully that India's problems of backlog and judicial complied with TRIPS, which is widely inefficiencies cannot be solved overnight. believed to be a successful means for Furthermore, the laws are TRIPS-compliant protecting IPR. Furthermore, on its face, the and Indian courts are the preeminent amended Copyright Act of 1957 provides authority on Indian law; therefore, this raises adequate protection of domestic and foreign the question as to whether the WTO copyrights. The uncertainty arises in the 2 24 mandates a different legal interpretation. implementation of these laws. The If India is unable to comply in the requisite prevalence of corruption and inefficiency in amount of time, then sanctions may be the Indian judiciary makes it very difficult imposed. Cross-sectorial trade sanctions are for foreigners to pursue litigation in India. likely to have the most impact. In 2002, Additionally, the Indian courts are so India's merchandise exports to the United backlogged that it takes an enormous amount States increased over the previous year by of time for a case to come to trial. Therefore, 21.4%.225 India is also the top exporter of India may have adequate de jure domestic small to medium sized diamonds, exporting copyright protection and may be compliant 226 $2.6 billion. with TRIPS standards, but without some kind India has taken some steps to remedy of judicial reform, India will not be able to the situation. Although most of the measures adequately protect the IPR of its citizens and address the larger piracy problem, they citizens of the world. nonetheless indicate India's willingness to It is important for the global address IPR issues. India has implemented a community to take action not only against special copyright enforcement advisory states that have insufficient legal frameworks council with a judiciary commissioner who for IPR protection, but also against states that is charged with developing and coordinating have ineffective enforcement measures. It IPR policy.227 Since India is trying to be a may be true that developing countries need bigger player in the global market place, some leeway when it comes to certain IPR, trade sanctions are likely to have the greatest such as allowing poorer nations to buy effect.228 Additionally, sanctions have patented medicines at lower prices. There is succeeded in the past. Wthe United States no compelling need, however, to copy initiated a "Special 301" investigation on American movies. The cultural copy India and ultimately suspended some duty- phenomenon hurts not only the copyright free privileges, for instance, the Indian owner but also the viability of the Indian government responded by making changes entertainment industry. Hollywood is script 229 in their laws to increase patent protections. driven, while Bollywood is star driven. In

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other words, because directors know that 6 Bollywood Comes to Town, SABC NEWS, at they can get away with copying a tried-and- http://www.sabcnews.com/entertainment/ true American script, they are less willing to cinema/0,2172,58725,00.html (May 15, invest money in Indian screenwriters. Big 2003). The article says the film industry name actors are paid astronomical amounts, grosses 480 billion Rand (the South African while the writers are given meager sums to currency); since 1 Rand equals 0.1673 U.S. "Indianize" American movies.231 The writers Dollars, the film industry grosses over 80 who create original concepts are often billion U.S. Dollars. Forex Rates, South shunned by directors in favor of the cheaper, Online, at http://www.southafrica.co.za/ proven success of a cultural copy. Unless forex/ (last updated Jan. 11, 2005). something changes, Indian filmmakers will continue to "Indianize" Hollywood films. The 7 Subhash K. Jha, Whose Movie is it Anyway?, famous opening song in the classic Bollywood REDIFF.COM, at http://www.rediff.com/movies/ hit Shri 420, properly captures this Indian 2003/may/19copy.htm (May 19, 2003). view of copyright: Mera joota hai Japani 'Author Loses India Plagiarism Case, BBC My shoes are Japanese NEws, at http://news.bbc.co.uk/2/hi/ Meh padloon Englishstani entertainment/3084401.stm (July 21, 2003). My trousers (are) English Sarpeh lal topi Russi 9 Id. On top (a) red Russian hat Phir bi dil hai Hindustani 10 Id. 232 Still my heart is Hindustani 11Id.

12 Bradford v. Sahara Television (India 2003) ENDNOTES 13 What is the WTO: Fact File, World Trade * J.D. Candidate, Vanderbilt University Law Organization, at http://www.wto.org/english/ School, 2005. thewto_e/whatis-e/whatise.htm (last visited Jan. 11, 2005). 1GORDON JOHNSON, A CULTURAL ATLAS OF INDIA 180 (1996). 14 Id.

2 Id. I5 The WTO in Brief: Part 2, World Trade Organization, at http://www.wto.org/ 3 UK Film Council, The Indian Media and english/thewtoe/whatise/inbriefe/ Entertainment Industry, at http:// inbr02_e.htm (last visited Jan. 11, 2005). www.ukfilmcouncil.org.uk/filmindustry/ india/ (Apr. 2002) (The UK Film Council is a 16 Id. governmental agency aimed at developing the film industry and film in the UK.). 17 Jessica Moore, WTO's Structure and Function, PBS Online NewsHour, at http:// 4 Id. www.pbs.org/newshour/bb/international/ wto/background.html (Sept. 2003). 5 Stefan Lovgren, Bollywood: Indian Films Splice Bombay, Hollywood, NATIONAL 18 Id. GEOGRAPHIC NEWS, at http:// news.nationalgeographic.com/news/2004/ 19 Id. 01/0121040121_bollywoodfilms.html (Jan. 21, 2004). 20 The WTO in Brief. Part 2, supra note 15.

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21 Understanding the WTO: The Organization - 33 Understanding the WTO: The Agreements - In- Whose WTO is it Anyway?, World Trade Orga- tellectual Property; Protection and Enforcement, nization, at http://www.wto.org/english/ supra note 27. thewtoe/whatis-e/tif e/orgl-e.htm (last vis- ited Jan. 11, 2005). 31 WTO Legal Texts, at http://www.wto.org/ english/docs.e/legal-e/legal-e.htm (last visited 22 Id. Jan. 11, 2005).

23 Moore, supra note 17. 35 Id.

24 Id. 36 Understanding the WTO: The Agreements - In- tellectual Property; Protection and Enforcement, 25 The WTO in Brief: Part 4, WORLD TRADE ORGA- supra note 27 (The timeframe for least-devel- NIZATION, at http://www.wto.org/english/ oped nations has been extended to 2016 for thewto-e/whatis-e/inbrief-e/inbr04_e .htm pharmaceutical patents.). (last visited Jan. 11, 2005) (see specifically 1 of the TRIPS Debate section). 31 WILLIAM F. PATRY, COPYRIGHT AND THE GATT 3 (1995). 26 Id. 38 Agreement on Trade-Related Aspects of In- 27 See Understanding the WTO: The Agreements tellectual Property Rights, Apr. 15, 1994, - Intellectual Property: Protection and Enforce- Marrakesh Agreement Establishing the World ment, World Trade Organization, at http:// Trade Organization, Annex IC, Part III, LEGAL www.wto.org/english/thewto-e/whatis-e/tif-e/ INSTRUMENTS - RESULTS OF THE URUGUAY ROUND Vol. agrm7_e.htm (last visited Jan. 11, 2005). 31, 33 I.L.M. 81 (1994) [hereinafter TRIPS Agreement]. 28 Understanding the WTO: The Organization - Least Developed Countries, World Trade Organi- 39 Understanding the WTO: The Agreements - zation, at http://www.wto.org/english/ Intellectual Property, supra note 27. thewtoe/whatis-e/tif e/org7e.htm (last vis- ited Jan. 11, 2005). 40 TRIPS Agreement, supra note 38, at Part I, art. 3.1. 29 Development: Who Are the Developing Coun- tries in the WTO?, World Trade Organization, 41 Id. at http://www.wto.org/english/tratope/ devel-e/dlwhoe.htm (last visited Jan. 11, 42 Id. at Part I, arts. 2.1-2.2. However, member 2005). states are not bound by the Berne Convention's provision on moral rights. Id. at Part II, art. 30 Hugh C. Hanson, International Copyright: An 9.1. Unorthodox Analysis, 29 VAND. J. TRANSNAT'L L. 579, 582 (1996). 13 Berne Convention for the Protection of Liter- ary and Artistic Works, art. 12 (Sept. 28, 1979), 31 Id. (India falls into the developing nation cat- available at http://www.wipo.int/clea/docs/en/ egory.); FAQ About TRIPS in the WTO: Which wo/wo001en.htm#P81_10175 [hereinafter Countries Are Using the General Transition Peri- Berne Convention]. ods?, World Trade Organization, at http:// www.wto.org/english/tratop-e/trips-e/ 44 Id. tripfqe.htm#Transition (last visited Jan. 11, 2005). 4' TRIPS Agreement, supra note 38, at art. 12.

32 Hanson, supra note 30. 46 Laurence Helfer, Adjudicating Copyright Claims Under the TRIPS Agreement: The Case

Spring 2005 272 Spring 2005 272 Copyright Infringement in the Indian Film Industry

for a European Human Rights Analogy, 39 HARV. 66 Id. INT'L L.J. 357, 380(1998) (quoting TRIPS Agree- ment, supra note 38, at art. 9(2)). 67 Id.

47 PATRY, supra note 37, at 2. 68 The WTO in Brief: Part 2, supra note 15 (Ex- plaining the WTO organizational structure as 48 David Nimmer, The End of Copyright, 48 follows: The Ministerial Conference, the high- VAND. L. REV. 1385, 1393 (1995). est decision-making entity, meets every two years. The General Council is one step below 49 Id. the Ministerial Conference. This body also con- venes as the Trade Policy Review Body and the 50 Id. Dispute Settlement Body. The General Coun- cil oversees the Goods Council, Services Coun- "' See TRIPS Agreement, supra note 38. cil and the Intellectual Property (TRIPS) Coun- cil.). 52 Id. at Part III. 69 Nimmer, supra note 48, at 1396; Understand- 53 Id. at Part III §1, art. 41; Overview: the TRIPS ing the WTO: Settling Disputes, supra note 60. Agreement, World Trade Organization, at http:/ /www.wto.org/english/tratop-e/trips-e/ 70 Id. intel2be.htm#enforcement (last visited Jan. 11, 2005). 71 Id.

-' Ruth L. Gana, Prospects for Developing Coun- 72 Id. tries Under the TRIPS Agreement, 29 VAND. J. TRANSNAT'L L. 735, 769 (1996). 73 Id.

55 TRIPS Agreement, supra note 38, at art. 41.5. 74 Id.

56 Gana, supra note 54, at 770. 71Nimmer, supra note 48, at 1397.

5' TRIPS Agreement, supra note 38, at art.41.5. 76 Id.

58 Gana, supra note 54, at 770. 77 Id.

19 TRIPS Agreement, supra note 38, at art. 64.1. 78 Id.

60 Understanding the WTO: Settling Disputes, 79 Id. World Trade Organization, at http:// www.wto.org/english/thewto-e/whatis e/tif-e/ 80 Id. displ-e.htm (last visited Jan. 11, 2005). 81Gana, supra note 54, at 773. 61 Id.

82 Id. 62 Id. 83 See U.S. Copyright Office, Circular 38a Inter- 63 Id. national Copyright Relations of the United States, available at http://www.copyright.gov/circs/ 64 Id. circ38a.pdf (Aug. 2003).

65 Id. 8 19 U.S.C. §§ 1337, 2411 (2004).

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85 19 U.S.C. § 2412(c) (2004). works closely with the USTR.).

86 International Intellectual Property Alliance, 98 Special 301 Report, supra note 96, at 122. Copyright & Trade Issues, at http:// www.iipa.com/copyrighttradeissues.html (last 9 U.S. TRADE REPRESENTATIVE, supra note 91 (In visited Jan. 11, 2005). 2003 alone, India suffered a trade loss of over $468 million.). 87 Id. 100 p. NARAYANAN, COPYRIGHT LAW 60, § 5.06 (East- 88 19 U.S.C. § 2242(b)(1) (2004). ern Law House 1986).

89 International Intellectual Property Alliance, l0 1Id. supra note 86. 102 Mohit Kapoor & Ajay Shaw, India: To Kill a 90 Id. Copy Cat, DSK LEGAL, India, available at http:/ /www.mondaq.com/article.asp?articleid=22595 91 U.S. TRADE REPRESENTATIVE, NATIONAL TRADE Es- (Sept. 9, 2003) (Note that TRIPS does not re- TIMATE REPORT ON FOREIGN TRADE BARRIERS 178-79, quire protection of moral rights.). available at http://www.ustr.gov/assets/ DocumentLibrary/ReportsPublications/ 103 Id.

2002/2002 - NTE _ Report! asset-upload-file8306410.pdf (2002). 104 Copyright Act of 1957 §14(1) (India).

92 Id. at 179. 105 Kapoor & Shaw, supra note 102.

93 Id. 106 NARAYANAN, supra note 100, § 7.05, at 75 (Moral rights are not included in TRIPS but can 94 Id. be found in the Berne convention (Article 6bis.)). 95 Intellectual Property Rights in India, Embassy of India, at http://www.indianembassy.org/ 107 Id. § 1.28 (citing Chaplin v. Leslie Frewin Ltd. policy/ipr/ipr_2000.htm (last visited Jan. 11, (1956) Ch. 71; Frisby v. BBC (1967) Ch. 932 2005). (holding that a small change in a play for the purpose of broadcasting is a copyright infringe- 96 Id. (Note, however, that the IIPA maintains ment); Joseph v. National Magazine (1959) Ch. that the 1999 amended version lowers the level 14 (holding that substantial rewrites are copy- of protection for computer programs and thus right violations)); see also NARAYANAN, supra note does not comply with TRIPs levels); INTERNA- 100 § 1.28 (U.K. cases are instructive because TIONAL INTELLECTUAL PROPERTY ALLIANCE, 2003 SPE- Indian copyright law was largely copied from CIAL 301 REPORT: INDIA 123, available at http:// British law.). www.iip a. com/rb c/2 0 03/ 2003SPEC301INDIA.pdf (2003) [hereinafter 108 Ranjan Narula, Battles in Bollywood: The Fine Special 301 Report]. Line Between Idea and Expression in India, Rouse & Co. International, available at http:// 97 Description of the IIPA, International Intellec- www.iprights.com/publications/articles/ tual Property Alliance, at http://www.iipa.com/ article135.asp?articlelD=208 (Sept. 9, 2003). aboutiipa.html (last visited Jan. 11, 2005) (In 1984, six trade association representing differ- 109 Justice P.S. Narayana, Intellectual Property ent sections of America's copyright-based in- Law in the New Technological Age, (2002) PL dustry came together to form the IIPA. This WebJour 6, available at http://www.ebc- private sector coalition monitors copyright law india.com/lawyer/articles/607-I.htm. developments in more than 80 nations and

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110 Id. Section (James Heitzman & Robert L. Worden eds., 1995) available at http://lcweb2.1oc.gov/ 111 Atrayee Mazmdar, Mayur Suresh & frd/cs/intoc.html. Lawrence Liang, FAQs about Copyright, at http:/ /www.infochangeindia.org/IPR-article6.jsp (cit- 130 Id. ing R.G. Anand v. Delux Films, A.I.R 1978 SC 1613) (last visited Jan. 11, 2005). 131 Id.

112 Id. 132 Id.

113 Id. 133 Id.

114 Narayana, supra note 109. 134 Jain, supra note 127, at 134-35.

15 NARAYANAN, supra note 100, §14.07 (citing 135 Id. R.G. Anand v. Delux Films, A.I.R 1978 SC 1613, 1617). 136 Id.

116 Id. 137 Id. at 137.

117 Id. § 14.11 (citing Gopal Das v. Jagannath 138 FEDERAL RESEARCH DIVISION, supra note 129, at A.I.R. 1938 SC 266). High Courts Section.

118 Id. §§ 14.28-29. 139 Id.

119 Id. 140 Id.

120 Narayana, supra note 109 (citing R.G. Anand 141 Id. v. Delux Films, (1978) 4 S.C.C. 118, 140-41). 142 Jain, supra note 127, at 139. 121 Id. 143 FEDERAL RESEARCH DIVISION, supra note 129, at 122 NARAYANAN, supra note 100, §§ 14.10, 14.16. High Courts Section.

123 Id. § 14.16. 144 Id. at Lower Courts Section.

124 Id. 145 Id.

125 Narayana, supra note 109. 146 Id.

147 Id. 126 NARAYANAN, supra note 100, § 17.09 (citing R.G. Anand v. Delux Films, (1978) 4 S.C.C. 118, 140-41). 148 Id.

127 S.N. Jain, Judicial System and Legal Remedies, 149 Author Loses India PlagiarismCase, supra note in THE INDIAN LEGAL SYSTEM 133 (Joseph Minattur 8. ed., 1978). 150 Mark Oliver, Writer loses Fight to Block 128 Id. Opera, GUARDIAN (London), available at http:// www. guard ian. co. uk/india/story/ 129 FEDERAL RESEARCH DIVISION, LIBRARY OF CONGRESS, 0,12559,1012541,00.html (Aug. 5, 2003). INDIA: A COUNTRY STruDY Ch. 8, Supreme Court

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151 Id. (1991).

152 Id. 169 Id.

153 Reuters, Calcutta High Court Rejects Author 170 Oger, supra note 155. Bradford's Case, at http://desitalk.newsindia- times.com/2003/08/01/cinema16-bar.html 171 Id. (Aug 1, 2003). 172 Aseem Chhabra, How Original is Bollywood?, 154 Note that the British named "Calcutta" is REDIFF.COM, at http://www.rediff.com/entertai/ now properly referred to as "Kolkata." 2002/oct/31bolly.htm (Oct. 31, 2003).

155 Nivek Oger, The Miracle of Discovery, MID- 173 Indian American Population, Indian Ameri- DAY, at http://web.mid-day.com/smd/play/ can Center for Political Awareness, at http:// 2003/may/53198.htm (May 18, 2003). www.iacfpa.org/iapop.htm (last visited Jan. 11, 2005). 156 Subir Bhaumik, Indian Court Lifts TV Soap Ban, BBC NEws, at http://news.bbc.co.uk/2/hi/ 174 Id. entertainment/3021763.stm (May 12, 2003). 175 Lisa Tsering, Bollywood Confidential, 157 Id. SALON.COM, at http://archive.salon.com/ent/ movies/feature/2003/01/28/bollywood/ (Jan. 158 Karishma off air - Sahara, Bradford await SC 28, 2003). hearing on 14 May, at http:// www.indiantelevision.com/headlines/y2k3/ 176 U.K FILM COUNCIL, supra note 3. may/mayl0l.htm (May 13, 2003). 177 Id. 159 Bhaumik, supra note 156. 178 Stefan Lovgren, Bollywood: Indian Films 160 Author Loses India Plagiarism Case, supra note Splice Bombay, Hollywood, NATIONAL GEOGRAPHIC 8. NEws, at http://news.nationalgeographic.com/ n e w s / 2 0 0 4 / 0 1 / 161 Id. 0121_040121_bollywoodfilms.html#main (Jan. 21, 2004). 162 Mazmdar, supra note 111; Narula, supra note 108. 179 The New Americans: Indian Musicals, PBS, at http://www.pbs.org/independentlens/ 163 Id. newamericans/culturalriches/ musicindian4.html (last visited Jan. 11, 2005). 164 NARULA, supra note 108. 180 David Chute, Planet Bollywood?, LA WEEKLY, 165 Author Loses India TV Appeal, BBC NEws, at available at http://www.laweekly.com/ink/03/ http://news.bbc.co.uk/2/hi/entertainment/ 16/features-chute.php (Mar. 7-13, 2003). 3123315.stm (Aug. 4, 2003). 181 Jha, supra note 7. 166 Id. 182 Quaied Najmi, Bollywood Copycats, WEEK, 167 Id. at http://www.the-week.com/23juneOl/ enter.htm (June 2, 2003). 168 Marshall A. Leaffer, Protecting United States Intellectual Property Abroad: Toward a New 183 Id. Multilateralism, 76 IOWA L. REV. 273, 286-87

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184 Ramola Talwar Badam, Is Bollywood a Hol- of video clips). Recently, RIAA sued a flea mar- lywood Clone?, CBS NEWS.COM, at http:// ket owner because his vendors were selling "il- www.cbsnews.com/stories/2003/06/04/enter- legal" CDs and DVDs. NewsWatch, tainment/main557012.shtml (June 4, 2003). Grammy.com, at http://www.grammy.com/ news/newswatch/2004/0219.aspx (Feb. 19, 185 Id. 2004).

186 Sajid Khan, Lift Karade, MID-DAY, at http:// 196 RIAA at it Again: 482 More Sued, WIRED web.mid-day.com/smd/play/2003/may/ NEWS, at http://www.wired.com/news/busi- 53202.htm (May 18, 2003). ness/0,1367,63945,00.html?tw=wntophead7 (June 22, 2004). 187 Id. 197 Press Release, Motion Picture Association of 188 V. Gangadhar, Who can Bell the Indian Show America, Study Shows Copyright Industries as Business Copy Cat?, SAMACHAR, at http:// Largest Contributor to the U.S. Economy (Apr. www.samachar.com/features/210503- 22, 2002), available at http://www.mpaa.org/ features.html (May 21, 2003). copyright/.

189 Kevin Thomas, Movie Review: Kaante, L.A. 198 Id. TIMES, at http://www.calendarlive.com/movies/ * This note will not examine what would hap- reviews/cl-et-kaante-20dec20,0,681 3472.story pen if the studio attempted to sue in the U.S. (Dec. 20, 2002). 199 PATRY, supra note 37, at 3. 190 Dave Kher, Film Review; Shot in Los Angeles, But Bombay All the Way, N.Y. TIMES: MOVIE SEC- 200 Chhabra, supra note 172. TION, available at http://movies2.nytimes.com/ g s t / m o v i e s / 201 KAANTE (Raju Patel//Pritish review.html?title=&title2=Kaante%20%28Movie Nandy Communications 2002); RESERVOIR DOGS %29%20% 20&reviewer=Dave%2OKehr&v id=279423 ( 1992). (Dec. 20, 2002). 202 Id. 191 Thomas, supra note 189. 203 Kanchana Banerjee, Cloning Hollywood, THE 192 Sacha Molitorisz, Kaante, SYDNEY MORNING HINDU, at http://www.hinduonnet.com/ HERALD, at http://www.smh.com.au/articles/ thehindu/mag/2003/08/03/stories/ 2003/02/19/1045330662081.html (Feb. 20, 2003080300090400.htm (Aug. 3, 2003). 2003). 204 Id.

193 Id. 205 Kapoor & Shaw, supra note 102 ("Copyright 194 Ching Yee, Kaante: Movie Review, HEROIC CIN- is concerned with the arrangement of EMA, at http://www.heroic-cinema.com/ content.. .not the novelty of the content."); see review.php?ID=kaante (last visited Jan. 11, also id. 2005). 206 Id. 195 See A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002) (where record com- 207 Author Loses India PlagiarismCase, supra note panies sued an online file-sharing site for copy- 8. right infringement); Elvis Presley Enters. v. Pass- port Video, 2003 U.S. App. LEXIS 26863 (9th 208 Supreme Court Order, May 12, 2003, f 1. Cir. 2003) (where Elvis's estate sued a video documentary producer for unauthorized use 209 Author Loses India Plagiarism Case, supra note 8.

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210 Vijay Dutt, A Landmark Setback for all Au- of India, at http://www.indianembassy.org/spe- thors: Barbara Bradford, , Aug. cial/ipr/ipr.htm#copyright (last visited Jan. 11, 19, 2003. 2005) (suggesting the use of "Anton Pille" or- ders and preliminary injunctions). 211 Is Bollywood a Hollywood Clone?, supra note 184. 223 Helfer, supra note 46.

212 Chhabra, supra note 172. 224 Cf. find WTO patent case against India in- volving agricultural and pharmaceutical patent 213 Is Bollywood a Hollywood Clone?, supra note protection. 184. 225 Press Release, Embassy of India, India-US 214 The panel selection and procedure is dis- bilateral trade zooms in 2002 (Mar. 4, 2003), cussed above in External. available at http://www.indianembassy.org/ press-release/2003/mar/04.htm. 215 Michael W. Smith, Note, Bringing Develop- ing Countries' Intellectual Property Laws to TRIPS 226 Id. (India is also the top exporter of knotted Standards: Hurdles and Pitfalls Facing Vietnam's and woven ($384 million), linen ($366 Efforts to Normalize an Intellectual Property Re- million), large/medium sized frozen gime, 31 CASE W. RES. J. INT'L L. 211, 226 (1999). with shell-on ($220 million), cashew nuts (213 million), antibiotics ($138 million), woven 216 STEPHEN E. SIWEK, INTERNATIONAL INTELLECTUAL fabrics ($85 million), pepper ($32 million), PROPERTY ALLIANCE, COPYRIGHT INDUSTRIES IN THE opium ($31 million), guar gum ($23 million), U.S. ECONOMY (2002), at http://www.iipa.com/ psyllium seed husk ($22 million), woven jute pdf/2002_SIWEKFULL.pdf (In 2001, the core fabrics ($14 million), and niger seed ($10 mil- copyright industries contributed an estimated lion).). $535.1 billion to the U.S. economy, accounting for approximately 5.24% of GDP. The real an- 227 U.S. TRADE REPRESENTATIVE, NATIONAL TRADE nual growth rate of the core copyright indus- ESTIMATE REPORT ON FOREIGN TRADE BARRIERS 174 tries (adjusted for inflation) has been more than (2003), available at http://www.ustr.gov/re- double the growth rate of the economy as a ports/nte/2003/india.pdf. whole. Over the last 24 years (1977-2001), the core copyright industries grew at an estimated 228 Press Release, Indian Embassy, supra note compound annual growth rate of 7.0% while 226. the rest of the U.S. economy grew at an annual rate of 3.0%.). 229 See above section on U.S. Response.

217 Intellectual Property Rights in India, supra 230 Chhabra, supra note 172. note 95. 231 Najmi, supra note 182. 218 p.p. Rao, Combating Corruption in the Judi- ciary, PEOPLE'S UNION FOR CIVIL LIBERTIES BULLETIN, 232 Chute, supra note 180. at http://www.pucl.org/Topics/Law/2003/ corruption.htm (July 2003).

219 Id.

220 TRIPS Agreement, supra note 38, at art. 41.5.

221 Id. at art. 3.1.

222 Copyright Law and Related Issues, Embassy

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