How did India’s film industry become the most prolific in the world, and how have weak IP frameworks held it back? Now, in the face of COVID-19, how can the nation position itself for the future?
Bollywood is a misnomer. The name was created by combining Bombay (modern-day Mumbai), the location of Hindu-language cinema, with Hollywood, the birthplace of American cinema. At some point in the 1970s, the nickname for the most prolific industry stuck. What most don’t realize is that Bollywood addresses only the Hindu-language films that account for 43% of the total industry. Tamil and Telugu cinema together account for another 36%. Other notable languages represented in the Indian film industry are Bengali and Kannada.
This multilingual industry entertains the 1.35 billion people who live in India, those who have immigrated abroad, as well as fans of the content in countries around the world. Quintessential India fare includes a multi-genre experience that takes the audience on a ride through action, romance, thriller, comedy and so much more. The plotlines may weave through different experiences but at some point, a beautifully choreographed musical and dance number will light up the stage in a style that is very iconically Indian. This musical genre-mixing is called masala films. A style of rich storytelling the country is known for.
The industry of marvelous voices and smooth sultry dance moves did not become the largest producer of films overnight. Much of the development of Indian’s film industry is rooted in a tragic history of colonialism, an uncompromising fight for independence, and a desire to show themselves, and the world, the many faces of India.
A Rich History
Bollywood, like many long-standing film industries, following a fleeting but impactful exposure to a Bioscope in the late 1800s. In 1897, Hilal Sen, the son of lawyer viewed a film presentation by a Professor Stevenson that featured a stage show called The Flower of Persia. After seeing the short film, and being encouraged by the Professor, Sen went on to film a few clips of other stage shows himself. Long after the professor continued on his travels, Sen would purchase a camera from London and with his brother formed the Royal Bioscope company where they produced films based on stage shows. The longest of which was ALbibab and the 40 thieves.
Long after those early experiments came, the first feature film, Raja Harishchandra, was produced in 1913. It was a silent picture by Dadasaheb Phalke, who many call the father of Indian cinema. By 1930 the industry was producing 200 films a year. The first commercially successful film also happened to be the first sound film Alam Ara and was directed by Ardeshir Irani. The film was such a success for the visual and audio effects that a great demand grew for talkies and musicals. As a result, films produced at that time quickly transitioned to sound.
The 1930s and 40s would be challenging years for India due to world events like The Great Depression, and World War II. However, it was also a particularly turbulent time for India. The Indian Independence movement, a series of efforts by India to shake off British rule, would come to an end in 1947. Unfortunately, it would also leave a legacy of animosity thanks to the partition of 1947. As the British empire left its colony, it left a parting gift. By decree of the British parliament, Pakistan was partitioned from India and declared a separate nation-state. It would take another 3 years before the country would draft its constitution and declare itself a democratic and republic state.
Before the chaos and violence of the partition and the birth of two nations, the Bombay film industry was closely linked to the Lollywood, the industry of Pakistani cinema. Both industries produced films in Hindustani, the common tongue of northern and central India. The legacy of Pakistani contributions to the early Indian film industry includes the migration of Pakistani actors, filmmakers, and musicians from the Lahore industry. Despite the partition, many would travel to Bombay during the 1940s to continue their careers in film. Some notable Pakistani stars of that time include K. L. Saigal, Prithviraj Kapoor, Dilip Kumar, and Dev Anand; playback singers Mohammed Rafi, Noorjahan, and Shamshad Begum. Overtime, Bombay began to attract artists from other regions like Calcutta and soon enough it became the center of the Hindustani film industry. Thus Bombay became the epicenter of the Hindu film industry.
‘The Golden Age’ of film began in the 1940s and lasted well into the 1960s. Buoyed by independence and a desire to tell Indian stories, some of the most critically acclaimed films in Indian history would be produced during this time. Pyaasa (1957) and Kaagaz Ke Phool (1959), directed by Guru Dutt and written by Abrar Alvi; Awaara (1951) and Shree 420 (1955), directed by Raj Kapoor and written by Khwaja Ahmad Abbas, and Aan (1952), directed by Mehboob Khan and starring Dilip Kumar. Mehboob Khan‘s Mother India (1957), a remake of his earlier Aurat (1940), was the first Indian film nominated for the Academy Award for Best Foreign Language Film; it lost by a single vote. Mother India would go on to define conventional Hindu filmmaking for decades to come.
The 1950s also saw the emergence of a new style of storytelling called parallel cinema. Starting in Bengal, this movement focused more on the realistic lives of everyday Indian citizens. Parallels focused less on high production musical numbers and more on social themes. Eventually, this style would travel from Bengali filmmaking and eventually gain prominence in Hindu cinema as well. Dhart Ke Lal, a 1946 film depicting the Bengali famine of 1943 was an example of a critically acclaimed parallel film. Neecha Nagar, a 1946 film that was the Indian interpretation of Maxim Gorksy’s The Depths. The film won the Grand Prix at the Cannes Film Festival in 1946.
Following the Golden Age of film, came the classic period beginning in 1970 ending in the 1980s. The early saccharine romance films gave way to grittier, more violent crime, and action films. The gangsters of the Bombay underground found their way to the silver screen. This period was marketed by a serious spirit of discontent and anti-establishment sentiments as slums grew and poverty settled into the fabric of Indian urban life.
From there we arrive at New Bollywood. This is the era of the three Khans, Shah Rukh Khan, Aamir Khan, and Salman Khan, who have been in the 10 highest-grossing Bollywood male actors of all time. Other notable actors include Priyanka Chopra, and Aishwarya Rai, both of whom were pageant queens went on to have incredibly successful acting careers.
The emergence of New Bollywood also marked an international commercial appeal and reach the industry hadn’t seen before. More and more Non-resident Indians and Desi communities took root in more and more countries. Communities abroad the desire to feel close to home drove audiences to watch Bollywood films. With the increased international demand, Bollywood screenings increased in the UK, the US, and various countries in Asia and Africa.
A Leaky Industry
In most cases, an increase in demand is a good problem to have, unless you are not equipped with a supply that can meet it. Like many international markets where internet penetration is low and the population is underscreened, the ability to unlock the industry’s full potential and curtail piracy became a challenge. The country has 1 screen per 96,300 residents compared to the US where the ratio is 1 to 7,800. For those abroad, before Netflix and Amazon’s involvement in distribution, it was difficult to access films being produced at home. Even with the streamer’s involvement, there is no way either company can keep up with the catalog of nearly 2,000 Indian films being produced every year.
As a result of this imbalance, several challenges developed. The first of which is a byproduct of weak copyright laws and piracy. While India is well known for innovation and technological prowess, the country has struggled with creating a robust intellectual property framework that can protect its creative sectors. Some efforts were made to improve the wait time for certain filing like trademarks, however, the measures didn’t go far enough. The Global Innovation Policy Center publishes an annual index that assesses countries in six categories: patents, copyrights, trademarks, trade secrets and market access, enforcement, and ratification of international treaties. In 2017, India was scoring 8.8 and was number 33 out of 50 countries. As of 2019, the country has significantly improved its score to 16.22 but its position on the index has fallen to 36 out of 50 countries worldwide.
According to the report, some reasons for the country’s improved score include awareness building around the negative impact piracy and counterfeit activities have on the economy. Additionally, the accession or adoption of the World Intellectual Property Organization’s internet treaty demonstrates that India respects and agrees with international standards of copyright protection.
That being said, it appears that weakness continues to exist within the country’s legislative framework as it relates to copyright, related rights, and exclusivity. For example, the country lacks digital rights management legislation. There is no injunctive style relief in the face of violations. Further, frameworks that promote cooperative action against online piracy do not exist, nor is there a scope of limitations and exceptions to copyrights and related rights. Worse than the state of intellectual property frameworks are the enforcement protocols to ensure that the rights that do exist can be enforced to the benefit of the rights holder.
Due to the weakness of legal frameworks, many popular Indian films would find their way to file-sharing platforms. Often, once uploaded on file-sharing sites movies would be copied on DVDs and distributed both locally and internationally. Internationally, it was common for shops and stores to purchase many of these DVDs and screen for customers. Sometimes, customers would collect a copy of the DVD deepening the losses. As a result, much of the revenue that should make their way back to local production companies would never make it back home. Instead, it is estimated that the black market gobbles up nearly $2.5 billion and 60,000 jobs annually.
Despite the significant percentage the black market takes out of the market each year, the film industry continues to grow. A KPMG report from 2016 anticipated that the box office would be worth $3.43 billion by 2020. As we all know, COVID-19 has dampened those projections significantly. Though, at some point, India and South Korea were tied for the box office at $1.6 billion. In recent history, India has pulled ahead. In 2019, India’s box office posted an impressive $2.34 billion according to Statista.
To curb the impact the black market has on the film industry, the new focus has been to connect more rural communities to broadband. Shifting local distribution schemes to ones including the internet appears to be a favorable alternative to building large theatre complexes in rural areas. If people can watch a movie on their laptop via the internet, perhaps they will be less inclined to pirate the movie illegally via DVD, or VCD.
Another major source of pirated content aside from those recorded on low tech camcorders results from production houses attempt to facilitate simultaneous film releases in different territories. To coordinate such a release requires distribution of films some 10-12 days ahead of a premiere day. That brief window leaves productions vulnerable to leaks. These territory related leaks should be easier to control because the individuals handling the content are part of the value chain, unfortunately, this does not reduce the instances of leaks.
Income is a significant indicator of piracy and so is culture. Well-known filmmaker Anurag Basu indicated that a family could purchase an illegal copy of a film for 100 rupees, which is significantly less than the cost of a movie ticket and transportation to the local theater house. Having distribution alternatives that compete with that price point and also deliver a better viewing experience is a starting place. Additionally, from a cultural perspective, Basu indicates that people must understand that piracy is a crime. Even though the government shuts down websites that share illegal links to content, the need to stem the leak continues each day.
As the world ground to a halt in March 2020 due to the novel coronavirus now commonly referred to as COVID-19, the effect on various creative industries became clear quickly. A video conference was held in May of this year with industry stakeholders. Actors and filmmakers with intimate knowledge of the local industry believed that it would take Bollywood 2 years to rise from the ashes. For those in the movie-making business, 60 percent of revenues come directly from ticket sales. It isn’t difficult to understand why the ongoing shutdown in the country would project the certainty of doom instead of hope.
Even if theaters were to open, some worry that audiences would not be ready to return to indoor entertainment due to the psychological fear associated with tight spaces and proximity. As the world tries desperately to understand a virus that has taken the lives of half a million people worldwide, the possibility of normalcy seems to be slipping away. Worst still, in the absence of strong internet infrastructure, any production that producers can put together, almost surely will not make nearly as much money as it could and would likely fall prey to piracy more so than it normally would be given the absence of traditional distribution.
Amid the dim prospects, there is one thing that a country like India, with its rich film history, could do. Revise its IP frameworks. At a time when productions are halted, perhaps the government could use the time to collect the necessary industry feedback to update their legislation and bolster their enforcement arms such that when the industry comes back with full force, it has strengthened its IP footprint. Education on IP rights and anti-piracy communication can be a way to mobilize some creative communities and create some jobs where most have disappeared. Not only does this address the issue of unemployed creatives in the film industry, but it also continues a very necessary cultural conversation around the value of protecting intellectual property.
There is no doubt that the industry will come back. Bollywood has been at the heart of every major Indian revolution, cultural transition, success, and failure. It is a medium that brings Indian natives and diaspora much pride. One way or another, it will rise once more. Hopefully, the government will do what it can to support the industry so that it can maximize its potential around the world.
Article written by Chinwe Ohanele, Esq: tech-savvy, business-legal professional, entertainment law consultant, international speaker and IP writer.