THE GLOBAL BUSINESS OF ENTERTAINMENT: CONTRACTUAL INNOVATION IN CROSS BORDER MEDIA TRANSACTIONS

Abstract

Generative artificial intelligence unsettles asumptions about authorship that copyright statutes never anticipated. This article argues that contractual drafting not statute has become the primary mechanismthrough which entertainment industry participants allocate rights, risk and revenue across borders a form of private transnational governance operating alongside and increasingly ahead of public law. It traces how licensing structures, coproduction agreements and streaming deals have evolved to fill regulatory gaps, compares the approaches taken in India, the United States, the United Kingdom,\ the European Union and Singapore and examines how artificial intelligence is testing the outer limits of what contract law alone can resolve. It closes with policy recommendations for Indian entertainment law, evaluated against their implementation costs rather than presented as costless fixes.

Keywords: entertainment law, cross border licensing, co production agreements, copyright contracts, chain of title, artificial intelligence and authorship, streaming agreements, comparative media law

Introduction

A film financed in Mumbai, shot partly in London, distributed through a Los angeles headquartered streaming platform and dubbed for release in forty languages will touch at least five distinct copyright regimes before a single viewer presses play. None of those regimes was drafted with this transaction in mind. The Berne Convention for the Protection of Literary and Artistic Works and the Agrement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) set minimum standards and requirenational treatment but they say almost nothing about how revenue should be split betwen a producer in Mumbai and a platform in Los angeles or who owns a performance once an algoritm has altered it.^[1] That gap is filled almost entirelyby contract.

The article proceeds in six stages. It traces the globalisation of entertainment markets and the commercial pressures that outpaced legislation. It explains doctrinally and critically, why contract law was able to occupy this space. It examines the specific instruments, licensing agreements, co production treaties, streaming deals that manage cross border risk and asks who benefits from their current design. It compares regulatory responses across five jurisdictions directly rather than sequentially. It considers the distinct challenge artificial intelligence poses to contract and to authorship doctrine. It closes with policy recommendations for India, weighed against their feasibility and unintended consequences.

The Globalisation of Entertainment Markets  

Entertainment has always crossed borders but the scale and speed of that movement changed once distribution stopped depending on physical media or territorial broadcast licenses. A theatrical release once moved through a country by country rollout spanning years, a streaming release now reaches over a hundred territories simultaneously. This compression has consequences statute cannot absorb. Rights once negotiated sequentially, theatrical, home video, television must now be negotiated as a single global bundle, often before a project is greenlit because platforms demand near global rights as a condition of financing. It is precisely this concentration that later sections identify as the commercialrationale for the contractual protections now writen into licensing agrements.

Why Contracts Have Overtaken Traditional Copyright Regulation

First, copyright statutes are territorial. A right recognised in one jurisdiction does not automatically extend to another, the Berne Conventions national treatment principle means a work is protected according to the law of the country where protection is claimed not a single harmonsided stanard.^[2] Only a carefully drafted agreement can coherently manage rhe resulting patchwork and drafting that agreement is a specialised, costly skill which means the parties best able to draft comprehensively (typically the larger counterparty) tend to set the template the smaller counterparty then negotiates within, rather than the reverse.

Second, copyright ownership defaults vary sharply between jurisdictions and are frequently commercially unworkable, which is precisely why parties contract around them. Under Indian law, section 17 of the Copyright Act 1957 vests first ownership in the author, subject to exceptions for works made in the course of employment and for cinematograph films, where the producer is treated as first owner absent a contrary agreement. The Supreme Court’s decision in Indian Performing Right Society Ltd v Eastern India Motion Pictures Association^[3] held that, absent a contract stating otherwise, a producer’s ownership of a cinematograph film prevails over the separate copyright that lyricists and composers hold in their underlying works, though composers retain the right to perform their works independently outside the context of the film itself. The judgement was commercially convenient for producers but left composers structurally exposed to bargaining pressure, a defect Parliament only partially addressed thirty five years later. The American position under the workforhire doctrine, similarly channels ownership toward the commissioning party for qualifying works, the Supreme Court in Community for Creative Non Violence vReid^[4] held this turns on whether the creator was an employee acting within the scope of employment or a specially commissioned independent contractor falling within one of the statutorily enumerated categories, with Reid himself retaining copyright in his sculpture precisely because he fell outside those categories. Because these defaults diverge from what financiers, platforms and distributors need, most serious entertainment transactions displace the default entirely through assignment or exclusive license, making the contract the operative source of ownership.

Third, statutes are slow to amend while commercial practice moves contuuously. Streaming, format licensing and generative artificial intelligence each matured well before legislatures revisited copyright text to address them. Contract drafting adapts within a single negotiation cycle which is precisely why it has become the default regulatory mechanism, not because it is a superior form of regulation in principle but because it is the only mechanism fast enough to keep pace, a point developed further in the discussion of artificial intelligence below.

Evolution of Cross Border Entertainment Agreements

Modern streaming license agreements typically grant multi territory, multi platform rights bundled with data reporting obligations, most favoured nation clauses guaranteeing parity with better deals given to competitors and minimum guarantee payments structured to de risk the licensor regardless of eventual platform performance.

Film and television co production agreements combine contract with a distinct regulatory layer: bilateral co production treaties. The private contract performs a dual function, allocating creative and financial control while ensuring compliance with a public international instrument, illustrating precisely how the treaty sets an outer boundary while contract does the substantive work.

Format licensing presents a related dynamic. Formats are not comprehensively protected as a category under most copyright statutes, protection depends on how much protectable expression as opposed to unprotectable idea, has been fixed and copied. Because statutory protection is uncertain, format license agreements rely on unusually detailed production bibles, confidentiality obligations and non compete restrictions that functionas the real protective mechanism, contract doing what copyright canot reliably do at the cost of protection that depends entirely on the solvency and good faith of the counterpart rather than on a public right enforceable against the world.

Contractual Innovation in International Media Transactions

Chain of title provisions have grown more granular, requiring a documented and unbroken sequence of assignments from every contributing author through to the licensing entity because a defect anywhere in that chain can render a downstream license unenforceable in a jurisdiction with stricter formality requirements than the country of origin. Representations and warranties have expanded correspondingly: licensors now typically warrant not merely ownership but that all underlying music, footage and performer releases have been properly cleared fir the specific territories and platforms covered.

Indemnity clauses have grown more sophisticated as platforms push litigation risk back onto the original rights holder, often capping overall liability while carving out uncapped exposure for chain of title defects specifically, a structure that reveals which risk the platform considers uninsurable through any other means. Territorial licensing and windowing clauses now interact with revenue sharing formulas tied to subscriber metrics rather than fixed fees requiring detailed audit rights so that licensors in smaller markets such as India can verify a platform’s self reported viewership data, the existence of this clause is itself evidence that the underlying commercial relationship is not one of equal information and the contract is doing the work a sectoral transparency regulator might otherwise do. Force majeure clauses historically boilerplate were substantially renegotiated across the industry following widespread production shutdowns earlier this decade and now commonly address suspension, insurance interaction and completion bond mechanics with a specificity earlier drafts never required.

Comparative Legal Perspectives

The five jurisdictions considered here occupy genuinely different points on a spectrum running from unrestrained contractual freedom to statutory re regulation of contract and the comparison is instructive precisely because it shows that the dominance of contract described above is not an inevitable feature of entertainment law but a policy choice some jurisdictions have already begun to reverse.

The United States sits at the freedom of contract end of spectrum. The work for hire doctrine leaves individual creators dependent on collective bargaining, through guilds such as the Writers Guild of America, rather than statute to secure protective terms. The Guild’s 2023 Minimum Basic Agreement is a useful illustration of what collective rather than individual, contractual power can achieve: it prohibits companies from requiring writers to use generative artificial intelligence, requires disclosure where material provided to a writer was AI generated and reserves the guild’s right tp argue that training AI on writer’s material without consent is unlawful.^[5] The lesson for India is double edged: collective bargaining can secure protections individual contracting cannot but only where a sufficiently organised and leverage bearing union exists.

Section 9(3) of the Copyright, Designs and Patents Act 1988 attributes authorship of a work generated by computer, in circumstances where there is no human author to the person by whom the arrangements necessary for the work’s creation were undertaken.^[6] This was, at the time, the first legislative attempt anywhere to address AI generated output directly amd it stands in sharp contrast to the position in the United States where the courts have instead held that authorless AI output is not copyrightable at all but the comparison should not be read as straightforwardly favourable to the UK approach: British scholarship has increasingly argued that section 9(3) is doctrinally incoherent since it protects works that by definition lack the human originality copyright law otherwise requires and the UK Intellectual Property Office’s own 2024 consultation invited views on repealing it.^[7] The UK model shows that early legislative intervention is possible but also that intervention drafted decades ahead of the technology it anticipates can generate its own doctrinal instability.

The European Union has taken the most interventionist approach and its recent legislation is instructive because it shows contract law itself being re regulated by statute once its imbalances became politically visible. The Directive on Copyright in the digital Single Market introducedin Article 18, a principle of appropriate and proportionate remuneration for authors and performers, in Article 19, a transparency obligation requiring licenses to report exploitation revenue at least annually and in Article 20, a contract adjustment mechanism allowing creators to claim additional remuneration where their original agreement proves disproportionately low compared to actual revenues generated.^[8] This is a direct legislative response to the imbalance that unrestrained contractual freedom produced, grounded in the EU legislature’s explicit acknowledgement of authors’ and performers’ weak bargaining position relative to exploiting parties.^[9] It suggests a possible future direction for India where individual creators currently have little statutory leverage against standard form terms imposed by larger counterparties but implementation across EU member states has been uneven and the transparency obligation in particular has been criticised as watered down by proportionality exceptions that let the paying party avoid disclosure where compliance costs are high relative to revenue which is disproportionately likely to be true for exactly the smaller, less bargaining powerful creators the provision was meant to protect.^[10]

Singapore by contrast, has priritised procedural infrastructure over substantive re regulation positioning itself through the Singapore International Arbitration Centre and its status as the depositary state for the Singapore Convention on Mediation as the preferred neutral forum for Asian entertainment disputes.

India sits closer to the American model of broad contractual freedom, tempered narrowly by sections 18 and 19 of the Copyright Act 1957 as amended in 2012. This amendment was enacted specifically in response to the commercial consequences of Indian Performing Right Society and represents India’s own narrower experiment with exactly the kind of statutory re intervention the European Union pursued more broadly, evidence rhat Indian policymakers already accept the underlying premise that unregulated contractual freedom can disadvantage individual creators even though the intervention so far is confined to one category of rights holder rather than extended as the EU has done, to authors and performers generally. 

Artificial Intelligence and the Future of Entertainment Contracting\

In Thaler v Perlmutter, the United States Court of Appeals for the District of Columbia Circuit held that the Copyright Act if 1976 requires all eligible work to be authored in the first instance by a human being affirming the Copyright Office’s refusal to register a work whose applicant has represented as generated autonomously by an AI system without human creative contribution, the Supreme Court declined to hear a further appeal in March 2026 leaving the ruling as settled law.^[11] This creates a genuine limit on contractual innovation: if an AI generated work falls below the threshold of human authorship, no amount of drafting can grant a party rights that do not legally exist since a license agreement can only transfer rights capable of existing in the first place.

Entertainment contracts have responded by drafting around the uncertainty rather than resolving it. Synthetic performer clauses now commonly require performers to expressly consent to and separately license the use of their voice, likeness and performance data to train or generate synthetic outputs, a direct response to the labour disputes that produced the Writers Guild’s 2023 AI provisions and comparable performer side protections. Production and distribution agreements increasingly include AI content warranties requiring the delivering party to disclose the extent of any AI contribution and warrant that no third party protected material was used to train any AI system involved in production since liability for AI training data infringement remains commercially uninsurable in many cases. This is contractual innovation operating at its outer limit: allocating risk for a legal question, the copyright status of AI training data that courts and legislatures have not yet fully settled everywhere. Whether this pattern proves durable depends on regulatory developments still unfolding including the European Union’s Artificial Intelligence Act which under Article 53(1)(d) requires providers of general purpose AI models to publish a sufficiently detailed summary of the content used to train the model.^[12] As that transparency obligation matures, it is likely to filter directly into entertainment industry contracting practice since licensors will begin demanding contractual proof of a counterparty’s AI training data compliance as a condition of the deal itself, contract, once again operationalising a public transparency rule that the market has no other way to enforce bilaterally.

Policy Recommendations

Three reforms merit consideration for India, each evaluated here against its implementation cost rather than presented as self evidently correct.

First, the Copyright Act 1957 should be amended to address authorship and ownership of AI assisted works expressly rather than leaving the question to be resolved entirely through private risk allocation with no statutory backstop. The UK’s section 9(3) is a plausible structural template but the comparative analysis above shows this is not a costless choice: UK scholarship and the IPO’s own 2024 consultation demonstrate that a provision protecting authorless output sits uneasily with originality doctrine and may simply be repealed once its incoherence becomes apparent.^[13]

Second, the government should examine whether a transparency and fair remuneration mechanism modelled on Articles 18 to 20 of the EU’s Digital Single Market Directive would benefit Indian creators licensing content to larger foreign platforms extending beyond the narrow royalty right currently available only to lyricists and composers under sections 18 and 19.

Conclusion

The research question asked to what extent contractual innovation has become the primary legal mechanism governing cross border entertainment transactions. The analysis supports the conclusion that it has substantially and by structural necessity rather than by accident: teritorial copyright regimes, divergent ownership defaults and legislative delay have left a governance vacuum that private contracting has filled with increasing sophistication, fromchain of title warranties to AI content disclosure clauses. In this sense, contractual innovation now functions as a form of private transnational governance in the entertainment industry, setting norms, allocating systemic risk and adapting to new technology far faster than any legislature has managed.

But the comparative and doctrinal evidence gathered here also shows the limits of that private governance. The European Union’s re regulation of contractual terms through the Digital Single Market Directive and the doctrinal boundary confirmed in Thaler v Perlmutter, both demonstrate that contract cannot indefinitely substitute for statute where fundamental questions of authorship or systemic creator disadvantage are at stake: some questions can only be answered by a public authority willing to override what private parties would otherwise agree to. The more durable position and the one India should now pursue, is not to abandon contractual innovation which remains indispensable for exactly the cross border, fast moving transactions this article has examined but to build a statutory floor beneath it, narrow, evidence based and reviewed periodically so that the flexibility contract law provides is matched by the protections only legislation can guarantee.

References

^[1]Berne Convention for the Protection of Literary and Artistic Works (as amended 28 September 1979) art 5; Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994) 1869 UNTS 299, art 3.

^[2]Berne Convention (n 1) art 5(1)–(2).

^[3]Indian Performing Right Society Ltd v Eastern India Motion Pictures Association AIR 1977 SC 1443, (1977) 2 SCC 820, [1977] 3 SCR 206.

^[4]Community for Creative Non-Violence v Reid 490 US 730 (1989).

^[5]Writers Guild of America, ‘Summary of the 2023 WGA MBA’ (WGA Contract 2023) discussing the Artificial Intelligence provisions of the 2023 Minimum Basic Agreement between the WGA and the Alliance of Motion Picture and Television Producers.

^[6]Copyright, Designs and Patents Act 1988, s 9(3).

^[7]See Patrick Goold, ‘The Curious Case of Computer-Generated Works under the Copyright, Designs and Patents Act 1988’ (City Law School Research Paper 2021/03); UK Intellectual Property Office, ‘Copyright and Artificial Intelligence: Consultation’ (December 2024).

^[8]Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights in the Digital Single Market [2019] OJ L130/92, arts 18–20.

^[9]ibid, recital 72.

^[10]Directive (EU) 2019/790 (n 9) art 19(3)–(4).

^[11]Thaler v Perlmutter 130 F 4th 1039 (DC Cir 2025), cert denied 2 March 2026.

^[12]Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 Laying Down Harmonised Rules on Artificial Intelligence [2024] OJ L, art 53(1)(d).

^[13]Goold (n 8); UK Intellectual Property Office (n 8).