This blog is inscribed by Khushi Malhotra
Introduction
Copyright describes the right given to the creators for their literary, musical and artistic works, such as novels and poetry, songs and musical scores, paintings and sculpture. Other works protected by copyright include films, choreography, architecture, advertisements, maps and technical drawings as well as computer programmes and databases. Copyright provides exclusive rights to creators to use or authorise others to use their work. The creator of a work can prohibit or authorise its reproduction in various forms, including printing, recording, broadcasting, public performance, translation or adaptation.[1] Copyright encourages human creativity. It provides economic rights to creators which allow them or their heirs to benefit financially from their work usually for a period lasting 60 years after the creator’s death.[2] This provides not only recognition for their work but also incentives to create more. The present paper deals with the copyright of Musical works.
Copyright and Music
Section 2(p) of the Copyright Act, 1957 defines Musical work as a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music. Hence, in a song there will be two copyrights involved, the first one being the music itself and the other being the words of the song as a literary work. The work must be reduced in writing or otherwise. A relatively small number of notes and chords are sufficient for copyright protection to claim ownership of the copyright.[3] For example , Sameera composes a melody called ‘Awakening’. She has written the lyrics, given the music to the song and recorded it in her studio. She will have copyright in the song.
Adaption of a musical work is also entitled to copyright protection. Adaptation in common parlance means, any arrangement, e.g. a musical work may be modified by an accompanying band. Adaptation in relation to a musical work means any arrangement or transcription of the work. If any musical work is arranged or recorded by adding accompaniments, new harmonies, new rhythm , it is said to be adapted.[4] This provides the musical composers the opportunity to come out with their version and remix of old musical works. For example, Jay is influenced by Sameera’s song ‘ Awakening’. With her prior permission he composes a remix version of the song by adding more percussion and beats. He will have copyright in the remixed song.
Hyperion Records v Sawkin[5] is a case of 17th and 18th century baroque composer Michael Ricard De Lalande. The claimant, Dr.Lionel Sawkins, a famous musician and the leading authority on the music of Lalande. In relation to some Lalande’s pieces he produced modern performing editions. In doing editions, Sawkins reproduced Lalande’s as faithfully as possible. To make the music playable, he made numerous corrections and additions to the notation, figured the bass line and recreated missing parts which required considerable skill and effort. The defendants recorded a performance of Lalande’s music from the modern performing editions as original musical work as he expended considerable effort in producing the editions. The defendant denied that the performing editions were original or musical. The defendant argued that the performing editions did not amount to a new and substantive musical work in itself as it simply reproduced Lalande’s music.
The court rejected this argument. It is irrelevant to the issue whether he created an original musical work or not. The question is whether or not it attracts copyright in music. The essence of this music is combining sounds for listening to. Music must be fixed in some material form. But the fixation in written score or on a record is not itself the music in which copyright subsists. The person’s effort, skill and time qualify a work for protection. The work of Dr. Sawkins has sufficient aural and musical significance to attract copyright protection. The Copyright Act 1957, says that Copyright shall subsist in an original musical work and gives certain rights in respect of that musical work.
Now a question arises that who is the rightful owner of the copyright. The author of the work is the first owner of the copyright in the work. However, it is to be noted that the originator is not the owner of copyright, copyright belongs to the person who gives concrete form to the idea. For example, Mr. A and Mr. B discuss the idea of composing a cheerful song for disabled people. Based on Mr.A’s ideas, Mr. B composes a cheerful song with various additions like adding funny one liners in the song. In this case the owner of copyright will be Mr.B. According to the section 2(d)(ii) the author in relation to the musical work is a “Composer”. Whereas according to section 2 (ffa) “Composer”, in relation to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation. For example, Jaya as a film producer commissions Suresh, the music composer to compose the music for film ‘The Great Palace’. Jaya does not become the owner of the copyright in the music but merely gets a licence to use the music in her film. All the other copyright in the music is retained by Suresh. An application for Musical Work may also be filed by joint authors/composers. Section 2(z) defines “work of joint authorship” as a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.
Every copyright owner can use his protected work as he wishes. He can exclude others from using his work without authorization. The copyright owner has the statutory right to authorise or prevent certain acts in relation to his work. The owner of copyright can prohibit or authorise its reproduction, the distribution of copies, its public performance, its broadcasting, its translation to other languages and its adaptation. Therefore, the rights conferred on the copyright owner are exclusive rights and anything done in contravention to it will be termed as infringement of the copyright.[6] The act defines “infringing copy” in relation to a literary, dramatic, musical or artistic work, as reproduction thereof otherwise than in the form of a cinematographic film.[7] However, as per Sec 51 of the Indian Copyright Act, any reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film will lead to infringement. When a person has not copied any substantial part of the work, it will not amount to infringement. The elements which constitute infringement in musical works are the same as those of elements constituting infringement as per the Indian Copyright Act.
Conclusion
The concept related to musical works in copyright has been mentioned herein above. It is to be noted that copyright not only gives the owner statutory right over his creation but also allows the author to derive financial reward by exploiting his protected work. The owner of musical work or any other work where the owner can get copyright for his creation can exploit himself or licence others to exploit his work which may be in the form of royalty or a lump – sum payment. However, it should be noted that copyright does not continue indefinitely and that it ends sometime after the death of the author.
[1] The Copyright Act, 1957, S.14
[2] Ibid, S. 22
[3] Swagata Changmai, “Determination of copyright infringement in Musical works”, 3 JLSR 3 (2017)
[4] The Copyright Act, 1957, S.2(a)(iv)
[5] (2005) RPC 32 (2005) 1 WLR 3281
[6] The Copyright Act, 1957, S.14
[7] Ibid, S.2(m)
