It is facile to listen to a good piece of music anywhere in this era of music streaming but people always tend to forget to appreciate the actual effort that goes into the making of such music. There are such laws in India that regulate and protect the rights of the owners of the music since music is also a creation of a unique human mind and law cannot let it be misused. This article aims to discuss such organizations and laws which protect the interests of music-makers and to scrutinize the way law has evolved in their favour. The article provides an inexhaustive account of the rights, liabilities, and protective institutions governing music and its creators.
Introduction
We frequently listen to music in a public place by a famous artist, but not many are aware public space owners need a licence to play it because the work can be performed or played in public by only the owner of the copyright. A song’s ownership or copyright is typically split into three aspects. A song’s lyrics are a literary work owned by the lyricist; the composer owns the music and the song as a whole is owned by the recording artist or the recording company.
Founded in 1969, IPRS is the only institution that licenses music users. Loyalty is collected on behalf of members, songwriters, music directors, and sound producers. The Association is a non-profit organization, guaranteed and registered under the Companies Act of 1956. IPRS was also registered by the central government in 2017. Copyright protection persists for the lifespan of the copyright holder and sixty years after that and performance rights exists for 50 years.
The main law ensuring the protection of interests of artists is The Copyright Act, 1957 that was amended and became effective from 21st June 2012. The revisions made to the law are in consonance with India’s international commitments. The amendments have provided better ownership commands to lyricists, composers, and performers working in the Indian entertainment world, more than the makers and record labels. The amendments proclaim the song-makers as proprietors of the copyright and have made royalty payment by telecasters/broadcasters to them compulsory. The revision in the law, likewise indicates that a cover version shall only be made following a time period of 5 years from the original recording of the song.
ISRA (Indian Singers’ Rights Association) was founded in 2013 as a limited liability company under the Companies Act of 1956 and has distinguished singers on its board who fought for the rights of performers or artists shortly after the 2012 amendment to that brought about collection and distribution of royalties. They struggled to achieve economic and moral rights so that the performers had greater control over their creation. In India, Phonographic Performance Limited (PPL) manages sound recordings and the Indian Performing Rights Society (IPRS) manages the rights of lyricists and composers. Ideally, one requires a PPL license if one wants to play a recording of a song in a public place. If someone else performs the piece, a license must be obtained from IPRS. In the event that the appropriate license is not acquired, a copyright infringement penalty is imposed, which can earn a fine or even imprisonment.[1]
Copyright rights of a music composer
Section 14(e) states the meaning of copyright in the case of sound recordings. It means to make any other sound recording embodying it, to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions or to communicate the sound recording to the public.
The rights of a music composer or lyricist can be defeated by the producer of a cinematograph film in the modus prescribed in clauses (b) and (c) of Section 17 of the Act as set down in the case of Indian Performing Right Society, Ltd. v. Eastern India Motion Picture Association[2]. Section 17(b) of the Copyrights Act says that “in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright” and “in the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright”. Section 17, as a whole, identifies the first owner of the copyright.
Assignment of Copyright
Section 18 specifies the assignment of copyright. “The owner of a copyright has been given the right to assign his copyright. The subject-matter of assignment may be either an existing right or the assignor may be the prospective owner of the copyright in future work. The assignment may be of the work as a whole or of a part of it. It may be done generally or subject to limitations. The assignment may operate either for the full term of the right or any part of it. In the case of the assignment of future work, it would become effective only when the work actually comes into existence.”[3]
Renunciation of Copyright
As observed in the case of Sulamangalam R. Jayalakshmi v. Meta Musicals[4] where Kandha Guru Kavacham composed by Santhanandha Swamigal as claimed by the plaintiffs as well as corroborated with the documents filed along with the plaint is a literary work within the meaning of Section 2(o) of the Act. Merely owing to the fact that he has renounced the world he cannot be compelled the renounce his copyright as well.
Section 51 talks about cases where the copyright would be deemed infringed. Inc case any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority does anything, the exclusive right to do which is conferred upon the owner of the copyright, or, permits Any location lobe used for the communication of the work to the public for profit where such communication constitutes a copyright infringement in the work unless he was not aware and had no reasonable ground for believing that such communication to the public, it would be considered as an act of copyright infringement.
Even when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or Distributes either for the purpose of trade or to the degree to which the copyright owner is prejudicially influenced by trade exhibits in public or by imports into India, any infringing copies of the work, it would all be considered as an infringement of copyright. The provision explicates that the reproduction of a literary, dramatic, musical, or artistic work in the form of a cinematograph film will be deemed to be an “infringing copy”.
Grant of Ad interim injunction
The rights of copyright owners are adequately protected. Balance of convenience lies in favour of the grant of an ad-interim injunction to the plaintiffs and unless the defendants are restrained by a grant of an ad-interim injunction, irreparable injury, or loss which cannot be estimated in terms of money, will be caused to the plaintiffs. Ad interim injunctions are passed in compliance with Order XXXIX of Code of Civil Procedure. The Hon’ble City Civil and Sessions Judge, Bengaluru, approved an ad-interim injunction in favour of The Indian Performing Rights Society Limited (IPRS) in 2019. The injunction was issued against an orchestra organising company named Antardhwani, in relation to a live event.
It was held in the case of Anand R.G. v. M/s Delux Films[5] that there can be no copyright in an idea, subject matter, themselves, plots, or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright worm. If the same concept is generated in a different way, it is obvious that similarities are bound to occur when the source is familiar. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to a violation of the copyright.
As observed in the landmark case of Gramophone Co. of India Ltd, v, Mars recording Pvt. Ltd[6], in sound recording copyright one, has to comply with the provisions of Section 51 (l)(U)(ii) and one has to make a payment regarding recording and for circulating record cassettes.
Section 52 sets down certain acts that are not to be considered as an infringement of copyright. It includes acts like usage of a literary, artistic, musical, or dramatic work for purposes of research, review, reporting current events, and for purposes of judicial proceedings or reproducing it in a certified copy in accordance with the law in force etc. and many more.
Section 60 states Remedy in the case of groundless threat of legal proceedings
It states that “where any person claiming to be the owner of a copyright in any work threatens any person by means of circulars, advertisements or otherwise with legal proceedings or liability for alleged infringement of copyright, the person so threatened may institute a declaratory suit that the alleged infringement to which the threat-related was not in fact the infringement of any legal rights of the person making such threats. He may also in such suit obtain an injunction against the continuance of such threats, and recover damages, if any, caused by the threats.”[7]It was noticed in the case of Exphar S A & Anr v. Eupharma Laboratories Ltd & Anr[8] that a “cease and desist” notice in a copyright action cannot particularly in view of Section 60 of the Act, be termed to be a mere notice. Such a threat can give rise to the right to bring an action against such a threat and to ask for relief on the ground that the alleged infringement has been committed to which the threat-related was not in fact an infringement of any legal right of the person making such ‘threat’.
c The courts have remained silent on whether using such music was intrinsic to the actual service offered by the owners of the restaurant and pub.
The relational tension between the stakeholders of a musical work presents the second challenge. The fact that the court left this topic unsettled seems surprising. Now, since it is difficult for them to decide from whom to receive rights clearance certificates and to whom the royalties should be paid, commercial users are left in limbo. It is a matter in question that whether the legislature and the judiciary in India expect small commercial establishments to receive such clearance on an individual basis from multiple rights holders, i.e. the performer, lyricist, composer, and producer or not.[9]
Copyright amidst remix culture
Musical work is described as including a work consisting of music under Section 2(P) of the Copyright Act, 1957, and also includes graphical notations of such work. It does not, however, contain any word or action intended for the music to be sung, spoken, or performed. It thus makes the composer and not the singer who sang the song, the owner of the musical work.
The Copyright Act also prohibits a musical work from being adapted, meaning it prohibits any arrangement or transcription of a musical work. Via Section 14(e) of the Copyright Act, an owner of a sound recording is guaranteed definite rights which includes the right to sell or hire the same.
Section 52(1)(j) of the Copyright Act states that if a sound recording of the original literary or musical work exists and the person who wants to copy it has given due notice of his intention to use it and make a sound recording and has also paid the original owner the royalty price set by the Copyright Board, it will not be counted as an infringement. The individual wishing to make the remix will not make modifications without the owner’s permission or cannot make adjustments that are not fairly appropriate for the work to be adapted.
The new recording of sound should not be sold with labels or packaging that might deceive the public about the artist’s identity. The remix should not be made until two years have passed since the end of the year in which the original song was released. The original owner has the right to examine all remix-related documents and books.[10]
Issue of Statutory licensing raised by Spotify
One of the largest online streaming services in the world- Spotify, launched in India and had raised a significant question about the future of copyright for music in India. Its launch was extended because it expressed its intent to invoke the statutory licensing scheme of the Copyright Act under Section 31D inserted into the Act by way of amendment in 2012. It mandates the invocation of a compulsory license and payment of royalty rates determined by the Intellectual Property Appellate Board for broadcasting musical works and other literary works.
The word “communication to the public” is described as making any work or performance available to the public to be seen or heard or otherwise enjoyed, irrespective of whether the work or performance made available is actually seen, heard, or otherwise enjoyed by any member of the public. Whereas the word ‘Broadcast’ is broader and requires two ways of publicly transmitting the job. It is evident from the simple reading of the meaning of “communication to the public” that “making available any work or output” is only a matter of choosing the time and place desired by the owner and not the user.
The court cleared the uncertainty and observed that individuals running internet music streaming services are not ‘broadcasting organisations’ and will not be protected by section 31D. This will mean that internet radio would be “public communication.” Spotify’s services are also not internet radio, the choice of what song to play, and when with the user and not the owner.[11]
Conclusion
It can be concluded that since music-making involves great toils and immense diligence, imagination, and craft, it has to be protected in the best way possible. The law ensures that music and rights of musicians and performers are protected via The Copyrights Act. A great amount of jurisprudence has been built on the topic as is evident from the aforementioned cases and facts.
Frequently Asked Questions
- What is the purpose of registration of copyright?
Ans: The object of copyright registration is to document a verifiable account of the date and content of the work in question, so that the copyright owner may produce a copy of the work from an official government source in the event of a legal claim or a case of infringement or plagiarism. Copyright registration is, in general, a legal formality designed to document the basic details of specific copyright in a public record. Registration is not, however, a pre-condition for copyright protection. The controlling legislation is the Indian Copyright Act, 1957, and it applies to all of India.
- What is the term of copyright in posthumous work?
Ans: In the case of a literary, dramatic, or musical work or engraving in which the copyright subsists on the date of the death of the author or, in the case of any other work of joint authorship, on or immediately before the date of the death of the last author who dies, but whose copyright, or any adaptation thereof, has not been published before that date, the copyright subsists for a period of 65 years from the date of the beginning of the work or, where an alteration of the work is published in the previous year.
Assessment Questions
- What is the punishment for an infringement of copyrights?
- What are copyright societies?
- Does renunciation of the world imply renunciation of copyright as well?
- Which section of the Copyrights Act talks about the first owner of the copyright?
- Which institution licenses music users?
References
[1]https://highonscore.com/music-laws-in-india/#:~:text=One%20major%20law%20protecting%20musicians,effect%20from%2021st%20June%2C%202012.&text=In%20India%2C%20the%20Phonographic%20Performance,rights%20for%20lyricists%20and%20composers.
[2] Indian Performing Right Society, Ltd. v. Eastern India Motion Picture Association AIR 1977 SC 1443.
[3] Avtar Singh, Intellectual Property Rights 176 (1 ed. EBC Publishing (P) Ltd. 2013).
[4] Sulamangalam R. Jayalakshmi v. Meta Musicals 2000 SCC OnLine Mad 381.
[5] Anand R.G. v. M/s Delux Films (1978) 4 SCC 118.
[6] Gramophone Co. of India Ltd, v, Mars recording Pvt. Ltd AIR 2001 SC 2885.
[7] supra note 3 at 230.
[8] Exphar S A & Anr v. Eupharma Laboratories Ltd & Anr. AIR 2004 SC 251.
[9]https://www.mondaq.com/india/copyright/724666/capitalising-music-in-india-performers39-royalty-rights-video
[10]http://www.legalserviceindia.com/legal/article-528-remix-culture-impact-on-copyright-owner-of-musical-works.html
[11] https://www.latestlaws.com/intellectual-property-news/spotify-the-future-of-music-copyright-law-in-india/.
