Securing Intellectual Property Rights in the Indian film industry

The vibrancy and resilience of the Indian media and entertainment industry cannot be understated. Driven by creative content, digital proliferation and rising customer spends, the industry has received international recognition; and the film industry has been a true catalyst. According to an EY report, the Indian media and entertainment industry reached INR 1.5 trillion in 2017, with film entertainment witnessing a growth of 27% from 2016 to 2017. Today, Indian film makers are creating big blockbusters as well as carving a niche for themselves at global film festivals such as Cannes and Sundance. That said, being a lucrative market can present its own set of challenges and one of key risks faced by the industry is around Intellectual Property Rights (IPR).

Ignorance, inspiration or infringement?

The ill-effects of IPR is well known in the global movie making business. For instance, pirated movie content is still freely available even though most countries have banned the erstwhile “popular” peer- to-peer sharing websites. The circulation of counterfeit products such as movie CDs and merchandise continue to be a menace as these are readily available, and can be purchased through online as well as offline channels, impacting the alternate revenue streams.

Plagiarising content or ideas without giving due credit or consideration to the original creator is another area that has gone overlooked for a while. Media reports suggest that the last few years has seen a number of top grossing movies under the lens as a result of alleged plagiarism. While the industry has seen increased awareness due to a digitally interconnected world, this has not still diminished the enthusiasm for those who still consider it acceptable to pass off someone else’s work as their own. There have also been a number of copyright infringement cases related to movie titles, remake rights, music or lyrics. While the cases do not necessarily mean that all charges are substantiated, a lackadaisical approach can affect IPR, translate to higher litigation or settlement costs, loss of revenue and brand erosion.

Complexities of the offline and online world

Cybersquatting is another scenario which could lead to IPR risks, thereby impacting the reputation of well-established brands. Here, domain names registered are either identical or uncannily close to a movie, studio or production house or even a celebrity. The intent is to either gain undue advantage from their goodwill or just attempt to “sell” that domain name for a sizeable sum. This trend has now gone beyond to include even social media accounts wherein individuals might opportunistically create fake accounts with the intent to “sell” them. Some of the most common types of cybersquatting include typosquatting or URL jacking, identity thefts, name jacking and reverse-cybersquatting.

Insider threats (employees, ex-employees and third parties) are also on the rise and can often lead to loss of critical information, unauthorized disclosures of confidential information or trade secrets to competitors. An inappropriate sense of entitlement, greed, job dissatisfaction and desire to switch the job (especially moving to a competitor) can prompt an insider to steal or divulge critical information.

In today’s digital time and age, social media has emerged as an important tool to promote movies as a powerful brand, gain market share and reach out to a wide audience. . The “ownership” of social media accounts is another grey area that could impact the industry. Employees may end up using their personal accounts to communicate information or promote the studio, production house or the associated movie. In such a case, some of the questions to consider include the ownership of the account – does it belong to the company or the individual? Who is accountable for the content posted on the account – is it the company, employee or the platform?

Knowing and protecting IPR

IPR risks cannot be completely eliminated or avoided. But the Indian film industry, specially studios or production houses can take a number of steps to highlight their sheer commitment and enhance efficacy to mitigate risks. These are:

  • Maintaining an IP risk register that identifies all risks, probability, impact and counter measures
  • Regularly conducting trademark audits which identify trademarks currently in use and not registered. Identify registered but defunct trademarks as they may run the risk of being deleted.
  • Developing rapid response procedures to mitigate risk if IP is abused
  • Detailed review of the terms and conditions included in the agreement with third parties
  • Identification of IP and respective ownership as per statutory laws and legal principles
  • Being vigilant and proactive as a brand by Issuing a social media policy that encapsulates the use of company’s logos and copyright materials
  • Educating employees on the need to protect the company’s IP
  • Formulate an IP and trade secrets protection program

The above article is co-authored with Arpinder Singh, Partner and Head – India and Emerging Markets, Forensic & Integrity Services, and was first published in Business India magazine.