“Overlap”—such an interesting word, isn’t it? It’s everywhere. Our ideas overlap, our works overlap, our words overlap, and even our feelings and emotions. And yes, so do our laws and their intricate concepts.
But why am I talking about overlaps? While reading the news about the Screenwriters Rights Association of India (SRAI) officially registering as a Copyright Society (Reg. No. CS/06/2024), the word clung to my mind. Especially when a close friend (who prefers to remain anonymous) pointed out the curious—and rather inconvenient—overlap between dramatic and literary works and its implications on their royalties.
The registration empowers SRAI “to commence and carry on the copyright business in dramatic works and literary works associated with dramatic productions.” Given the persistent issues of underpayment and lack of credit screenwriters have faced, this marks a historic moment worthy of celebration. Yet, it raises an intriguing question upon which the entire registration hinges: Is the script a “dramatic” or a “literary work”? The definition dilemma of dramatic works was pointed out by Shreya Aren around 15 years ago!
In this post, I examine the nature of a “script,” considering the current judicial jurisprudence, and underscore its repercussions on the authority of SRAI to collect royalties.
What’s a Script?
As stated above, SRAI’s registration concerns two works: 1.) dramatic works and 2.) literary works associated with dramatic production.
While SRAI’s registration does not define whether scripts and screenplays are dramatic or literary works, there could be an arguable case for either side. For one, unlike laws of other countries like Australia and New Zealand, which clearly define a script as a dramatic work, the Copyright Act 1957 does not mention “screenplay” or “script” as such. Instead, it leaves it to the author to decide (at the stage of copyright registration and litigation) where it falls.
For instance, take the script of the movie Aaranya Kaandam, which is defined as a literary and dramatic work (Diary No.: 14988/2018-CO/L). Similarly, in Salim Khan vs Sumeet Prakash Mehra, the plaintiffs’ script, dialogues, screenplay, etc., were categorically described as literary works. Last year, the Satyajit Ray case concerning the screenplay and script ‘Nayak’ was described as a literary work. Similarly, I came across an unpublished application before the copyright office for “Yaadon Ki Zanjeerein,” classified as a “Literary/Dramatic” work (Diary No.: 2284/2022-CO/L).
This ambiguity reflects the flexibility (or perhaps confusion) within the law concerning two types of works. Let’s look at the issue more closely.
Section 2(h) defines “dramatic work” as “any piece for recitation, choreographic work, or entertainment in dumb show, the scenic arrangement or acting, the form of which is fixed in writing or otherwise, but does not include a cinematograph film.”
Two key components flow from this definition: 1.) Dramatic work includes recitations, choreographic works, dumb shows, scenic arrangements, or acting. 2.) They must be fixed in writing or another form. Plus, it explicitly excludes cinematographic films from its scope.
At first blush, a script or screenplay might appear as a piece of recitation fixed in writing and, therefore, a dramatic work. This is a common understanding across many jurisdictions and has been argued by scholars (see this interesting 2021 piece by Dr. Rukma George discussing the issue in detail.)
The problem, however, is not simple, considering that the script or screenplay is prima facie literary work. Its very essence lies in words, sentences, and storytelling. But its purpose is performance, making it fit for dramatic work. This distinction between “text for performance” and “text for reading” seems to be the underlying basis for the difference between literary and dramatic work.
For instance, the Copyright Office’s Practice and Procedure Manual, 2018 (page 2), which cited the Supreme Court’s 2008 judgment in Academy of General Education, Manipal vs. B. Malini Mallya, reached this conclusion. The case, in turn, draws on The New Encyclopaedia Britannica and Halsbury’s Laws of England, noting that a dramatic work (like a play) is a text designed for performance, while a literary work is meant for reading as printed words.
The issue received detailed discussion before the Delhi High Court in 2014, in the Institute for Inner Studies vs. Charlotte Anderson, where, citing USA and UK authorities, the Court outlined two key criteria for a work to qualify as dramatic: 1.) Performability: The work must be capable of being physically performed or accompanied by action. 2.) Fixation: The work must have a fixed form, such as in writing, ensuring “certainty of incidents as a predetermined plan.” Interestingly, while not explicitly calling it an essential element of dramatic work, the Court highlighted another critical aspect: 3.) the “purpose of work,” which is to “be deduced from the form and nature of the work.” (Read para 108-117) However, the Court also clarified that where the certainty of the performance of the work is doubtful, such a work cannot be called dramatic work. Examples include sports games, news presentations, aerobics, daily routines, Yoga, and Pranic Healing techniques.
A script or screenplay fulfills all of these requirements and thus falls under dramatic works. But hang on for a moment.
This dichotomy (“text for performance” vs. “text for reading”), I claim, is flawed, if not false. And it can be problematized when pushed to its logical extremes. The differentiation between “text for performance” and “text for reading” creates an artificial—shoddy—boundary between text types. Sample a poem—generally classified as a literary work—can also be performed. Similarly, books– another literary work—are often adapted for performance. In fact, Praharsh shared that “Fantastic Beasts and Where to Find Them: The Original Screenplay” is being sold as a book, further making me think that if all texts (literary) hold the performance potential, what’s the distinction? Perhaps the meaning of performance needs teasing out. By adding a purpose requirement, though implicitly, the Charlotte Anderson case solves this problem for a moment. But should the author’s intentionality behind creating a work even be a requirement to categorize a work? To me, it is an alien requirement shoehorned into dramatic works– something that Cohen might call transcendental nonsense. It only makes sense because we’re so intent on making it so.
Why are the Categorizations worth worrying over?
So, is there any “real” difference between the both? Maybe, yes, maybe not. Logically, it can be either. I would put script under literary works. Because of the applicability of Section 18 proviso (3) read with Section 19(9), which creates an unwaivable royalty provision for assignments when a literary and musical work is incorporated into cinematography. The provision, in simple words, states that the author of a literary or musical work included in a film cannot waive or assign their right to equal royalty shares with the film’s copyright holder (i.e., a producer). Moreover, it applies to the use of the work beyond showing the movie in a cinema hall. Meaning, producers are legally obligated to share royalties equally with the authors of the underlying literary or musical work whenever the work is exploited outside of traditional cinema screenings.
The upshot? If I were a screenwriter, why would I categorize the script as a dramatic work? Instead, I would classify it as a literary work. Converting it into a dramatic work remains an option under section 14(1) anyway, but by claiming it as a literary work upfront, I get the nonwaivable royalty protections under Sections 18 and 19(9).
So, while SRAI does the copyright business, it must consider what a script is as per the law, which would decide the royalties received on it.
Alright, that’s from my end.
À bientôt.