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MUSIC INDUSTRY AND COPYRIGHT: A CRITICAL ANALYSIS.

“When you have wit of your own, it’s a pleasure to credit other people for theirs”

~ By Criss Jami


INTRODUCTION


Copyright of Music protects the creation of musical compositions and sound recordings. The copyrighter holder is entitled to get control over its music and to reap the benefits from it, and if someone else gets benefits from it illegally the owner has a right to ask for compensation. Music is an art and a valuable asset of an artist, every track consists of two copyrights. Firstly, a musical composition that includes melodies, lyrics, arrangement of notes that exists before the official recording of the song these rights are usually controlled by the songwriters, composers, lyricist, and music publisher. Secondly, sound recording or master recording that means a recorder version of a song that includes an expression of musical composition, it is usually owned by a record label or by a performing artist, sometimes a record label and the artist can be the same person for instance bands who writes their own song and records the same.


The ownership over the track grants exclusive rights to the owner for reproducing, redistributing, preparing derivative work, public performance of work, and displaying the work in public, also the owner is entitled to give licensing rights in demand of royalty. Copyright for music has gained importance in the era of digitalization where piracy, duplicating, and copying has become an easy task. To get the copyright for music the musical work should be original and have some creativity it includes the making of the new version of the old arrangement of music. Music is protected once it is created and is fixed in a tangible object for instance sound recording or sheet music. [1]


RIGHTS CONFERRED TO COPYRIGHT OWNER


Copyright law grants the owner exclusive rights over his work and lays down the provision for safeguarding the copyrighted work.

Reproduction- A copyright owner has a right to reproduce his work it includes making a CD, using songs in advertisement or television programs, and making them available on online streaming services.[2]Online Streaming platform obtains the license from the copyright owner for streaming their song publically in return of money. If the sound recording is owned by a record label and the songwriter owns the music composition, in this case, the label will receive compensation and the songwriter will receive mechanical royalties.


The publication- The copyright owner of a musical work is entitled to make copies of his own work of musical composition or sound recording for publishing and distributing in the market. Supplying the copies of the copyrighted work to the public can be done by an authorized party also for a musical composition it can include sheet music sales in the market.


Derivative Works- The copyright owner of the musical composition has the right to create a derivative version of the original work or if he grants a license to any other person. If any person other than copyrighter owners wants to make a derivative work they require a synchronization license from the musical composition owner and the master use license from the sound recording owner. [3]For instance where the song has been used for the advertisement or television program, movies, etc. There is another version of derivative work that has been very popular in this modern era is making a remix of old arrangement of songs for this a person is required to obtain both mater use and synchronization license.


Performance Rights- The copyright owner has exclusive rights to perform the work publicly. Performance rights can be owned by the composition owners and the master copyright holders. Performing rights not only include a living person performing but also broadcasting on any public platform. This includes live shows, performance in restaurants/bars/clubs, broadcasting of songs on radio/television/streaming services like YouTube, Spotify, Wynk Music, etc. all comes under the performing the work publicly.


POSITION IN INDIA


Copyright law safeguards the interest of the copyright owner from getting infringed and grants them an exclusive right over their literary, artistic, musical, sound recordings, dramatic and cinematographic work. Under the Copyright Act, 1957 literary work of an author is protected that includes books, newspapers, journals, poetry, letters, lyrics of the song, etc. In the case of the music industry, a lyricist is an author of the song which comes under a literary work, and subsequently, his rights are protected under section 2(d) (i) of the act. Under section 2 (d) (ii) of the act, the composer is the author of the musical work in the song.[4]Musical Work” means 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 the music[5]. The composer is the person who makes music for the lyrics of the songs in other words he is the one who gives music to a song. The composer can obtain the copyright on the background music in the song under the said act.


Under section 2 (qq) of the act, a “performer” includes the singer of the song and he has an exclusive to perform his work publicly, reproduce or redistribute the work by making copies or CDs or making it available online streaming sites. Along with these rights, the owner of the copyright has the right to ask for compensation if his work has been used illegally or without his permission. Under section 2 (uu) of the act the “producer” of sound recording, is a person who takes the initiative and responsibility for making the work[6]. Producers are basically the author of the sound recording as he takes the responsibility of recording a song and releasing it through films or albums, generally, these sound recordings are owned by the labels. Hence, the right of the producer is protected under this act and he can get a copyright for his sound recording.


In the case of TIPS Industries v Wynk Music[7], the plaintiff is an Indian Label Company that granted a license to Wynk to access their music repository. After the expiry of the license Wynk took protection under section 31 D, on the other plaintiff claimed that the defendant should be prosecuted under section 14(1) (e) for violating the rights of sound recording. The court held that the defendant is guilty of infringing the exclusive rights of the plaintiff as they have allowed the user to download and listen to the plaintiff’s copyrighted work offline and was communicating the plaintiff’s work by using their online streaming service. Section 31 D does not protect the “Download/Purchase” of the Copyrighted work of the owner. The plaintiff was entitled to get the interim injunction against the defendants as they have suffered a monetary loss due to the acts of the defendants.


In the case of Indian Performing Rights Society v Eastern Indian Motion Pictures Limited[8], a composer can assign rights over his future work. Section 30 of the Copyright Act lays down an assignment of work is possible by issuing a license in favor of the prospective owner of the copyright. Once the composers sign the document of the assignment of his work to the production house he losses all his control over his composition and the production house becomes the new owner. When composers come into an agreement with the producer of the cinematographic film in which the song is being incorporated for some consideration he loses all his rights over his composition. Under section 17(c) of the Act lays down that the producer automatically becomes the owner of the composition where the composer is given consideration and subsequently loses all his control over his composition.


CONCLUSION


Music is a valuable asset of a person and it needs to be protected. The Amendment in Copyright Act has been a great path for protecting the rights of the musical composer and they should be awarded royalties for their original work. The owner of the copyrighted work has a right to protect and preserve his original work and if someone uses it illegally he has a right to obtain compensation for the same. It has become important for us as a society to understand the need for protecting the music as it is someone’s creativity and work of art that must have taken years to build. It is time we must come together to protect one’s music and should stop making copies or duplication of original work and if his work is being used he is entitled to get credit and royalty for his work.


[1]Birgitte Anderson, ZeljkaKozul-Wright, Richard Kozul-wright, Copyrights, Competition, and Development: The Case of Music Industry , UNCTAD Discussion Paper, January (2000)

[2]Dmitry Pastukhov, 6 Basic of Music Copyright Law: What it protects and How to Copyright a song, Soundcharts Blogs, February 11 (2020)

[3]Edward T. Saadi, Sound Recordings Need Sound Protection, Texas Intellectual Property Journal (1993)

[4] Sec. 2 (d) (ii), The Copyright Act, 1957

[5] Sec 2(P), The Copyright Act, 1957.

[6] Sec. 2 (uu) The Copyright Act, 1957

[7]Notice of Motion (L) No. 197 of 2018 IN Commercial Suit IP (L) No. 114 of 2018

[8]AIR1977 SC1443, (1977)2 SCC820, [1977]3 SCR206



Navin Kumar Jaggi

Bhavya Bhasin

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