Copyright for Film Registrations
What is a “cinematograph film”?
Generally, copyright is infringed, if any person performs any of these acts which fall within the exclusive rights of the copyright owner, without its authorisation or consent.
There are, however, general exceptions from this general rule. In this regard, the Copyright Act inter alia provides that copyright shall not be infringed by any “fair dealing” with a cinematograph film for the following purposes:
Copyright in a “literary work” vests inter alia the exclusive right to broadcast or to authorise the broadcasting of such work. In this regard, authorisation to use a literary work as the basis or as a contribution towards the making of a film, in the absence of an agreement to the contrary, includes the right to broadcast such film. Where sounds embodied in a sound-track associated with a cinematograph film are also embodied in a record other than such a sound-track or in a record derived directly or indirectly from such a sound-track, the copyright in the film shall not be infringed by the use of that record.
The registration of copyright in cinematograph films does not relate to subsistence of copyright in films. In this regard, the general copyright requirements apply. The main purpose of registration is to easily and effectively provide film copyright owners with proof of their rights which would assist them when necessary to enforce their rights in case of a dispute or litigation.
An application for registration of copyright in a cinematograph film must comprise of the documents prescribed in the Regulations. The most substantial of these documents, is a Statement of Case that must contain particulars such as a brief description of the story or subject matter, the dates and places when and where the film was made and the names of the director, principle players and narrator. The Statement of Case must be submitted in Affidavit format.
The Registrar accepts the application, if he is satisfied that all the prescribed requirements have been met, that copyright indeed subsists in the film and that the applicant for registration is the current owner of such copyright. The application is then published in the Patent Journal and open for opposition by third parties for a period of one month.
If there is no opposition or if the opposition has been successfully resisted, the Registrar will issue the Certificate of Registration. A Certificate of Registration issued by the Registrar of Copyright serves as prima facie prove that copyright subsists in that film. In case of a dispute involving a non-registered film, such facts would have to be proven by obtaining admissible evidence from individuals who have personal knowledge of the facts, which is a difficult, time consuming and costly process. In court proceedings relating to a registered film, it will also be presumed that the alleged infringers had knowledge of the registration of the film. The fact that it is easier to proof copyright in a registered film, as oppose to other copyrighted works, deters film pirates from infringing copyright in registered films.
The rights of an exclusive licencee could also be recorded on the Register. As soon as such licence is recorded, any certificate in respect of the film issued by the Registrar should reflect the status of that licencee. The recordal of someone as a licencee on the Register will expire when the copyright in the film and/or the licencee’s licence expires and the copyright owner, licencee or interested third party can then cancel such entry on the Register. Assignment of copyright in a registered film should also be recorded on the Register.
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