A copyright can be obtained for the original musical, literary, artistic, dramatic, cinematography films and sound recordings in India. Copyright Act, 1957 (“Act”) lays down the laws relating to copyright in India. Copyright in any work gives a legal right to a person over his creation against copying or stealing his work. Copyright is obtained to protect the original works by the authors, producers, and performers to protect their work from infringement.
A copyright of a song is done as per the provisions of the Act and Copyright Rules, 2013 (“Rules”). A song contains various elements. A song is complete as a whole when first the lyricist writes the sing. Then music is given to the lyrics by the composer of the song. The singer sings the song. This song may be performed by the singer or recorded in a studio. The producer of the song records it. Usually, a song is the effort of many people combined. But at times a song may be wholly owned by only one person if he writes the song, gives music to it, and sings it.
EXCLUSIVE RIGHTS GIVEN TO THE COPYRIGHT OWNER
1. Reproduce the Work: The rights to make copies of the work, such as the right to manufacture compact discs containing copyrighted sound recordings.
2. Distribute Copies of the Work: The right to distribute and sell copies of the work to the public.
3. Perform Works Publicly: Copyright owners of songs (but not owners of sound recording copyrights) control the rights to have their song performed publicly. Performance of a song generally means playing it in a nightclub or live venue, on the radio, on television, in commercial establishments, elevators or anywhere else where music is publicly heard.
4. Make Derivative Works: A derivative work is a work that is based on another work such as a remix of a previous song or a parody lyric set to a well-known song (a classic example being Weird Al Yankovic’s song “EatIt” which combines Michael Jackson’s copyrighted original work “Beat It” with a parody lyric “Eat It”).
5. Perform Copyrighted Sound Recordings by Means of a Digital Audio Transmission: This is a right recently added by Congress that gives copyright owners in sound recordings the right to perform a work by means of digital audio transmission. Examples of digital audio transmissions include the performance of a song on the Internet or satellite radio stations (such as XM or Sirius).
6. Display the Work: Although this right is rarely applicable to music, one example would be displaying the lyrics and musical notation to a song on a karaoke machine.
No one can do any of the above without the permission or authorization (usually given in a license) of the owner of the copyright.
MUSIC AND COPYRIGHT - TWO TYPES
1. Sound Recordings: A sound recording is simply a work comprised of recorded sounds. For example, the recorded performance of a song that appears on a compact disc is a sound recording.
2. Musical Works (that is, “Musical Compositions” or "Songs"): Both the music and the lyrics to a song, or each of them separately, can constitute a copyrightable musical work.
MUSIC AND COPYRIGHT - DISTINCTION BETWEEN THE TWO TYPES
Sound recordings and musical works are separately copyrightable works that can be owned by one or more authors. It is important to be able to distinguish between the two: a musical work, or a song, usually means a melody and often (but not always) lyrics; a sound recording is the actual recorded performance of that song. For example, if a songwriter composes and writes the lyrics to a song and Madonna records a version of the song and includes it on her new album, the songwriter owns the copyrights in the musical work (because she wrote the music and lyrics) and Madonna, or more likely her record label, owns the copyrights in her recorded version of the song (the sound recording) which is contained on a compact disc sold in record stores.
The copyrights in sound recordings and musical works create two different revenue streams for their owner(s) in the form of royalties from record sales and music publishing royalties.
In the above example, the songwriter would be entitled to the publishing royalties resulting from any performances of Madonna’s version of her song on the radio while Madonna would get the royalties from the actual sales of the compact disc containing her recorded version of the song.
AGREEMENTS IN THE MUSIC INDUSTRY
1. RECORD LABELS AND RECORDING AGREEMENTS
The main function of a record label, or recording company, is to manufacture, distribute, market, promote and sell an artist’s music. The artist and the record label enter into a written “recording agreement” which governs their relationship.
Some of the key provisions in recording agreements include the term or duration of the agreement, the number of songs or albums to be recorded, the royalties to be paid to the artist, the territory (the countries where the record label can release or sell the album), the budget for recording, marketing and promotion and the general rights that the artist grants to the record label. Recording agreements are often 50 to 80 pages long and contain complex language and terms that are not only difficult to understand but can significantly impact the artist’s rights, obligations, and compensation. Accordingly, any time an artist gets offered a recording contract they should consult an attorney to review the agreement, explain its terms to them and negotiate with the record label to get the fairest possible deal for them.
2. INTERNAL BAND AGREEMENTS
In order to avoid future misunderstandings, a band should have an internal agreement between all of the band members, which sets out how the band is going to conduct business together. This agreement should be created as soon as possible after the band’s formation when the band members are on friendly terms and can negotiate in a level-headed manner. One of the first decisions to be made is whether the band will create a corporation or a limited liability company to operate their business. If so, an internal band agreement will still be required, but it will be described as a “Shareholder Agreement” or “Members Agreement.” The agreement should be in writing and cover topics such as ownership of the band name, who owns and controls copyrights, the division of the band's assets and income (from live performances, touring, record contacts, publishing deals, etc.), who, if anyone, is to act as the band’s leader, what are the responsibilities of each band member and what happens when there are disputes, someone leaves the band or the band breaks up. A band should consult an attorney to draft a contract reflecting all of the terms agreed upon by the band members and assist with the registration of the business entity if the band elects to form a corporation or limited liability company.
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.
It was decided in the leading case of Indian Performing Right Society, Ltd. v. Eastern India Motion Picture Association[1] that 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. 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 the 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.”
RENUNCIATION OF COPYRIGHT
As observed in the case of Sulamangalam R. Jayalakshmi v. Meta Musicals[2] 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 mentions the cases where the copyright would be deemed infringed. In case any person, without a license granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a license 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 favor 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 the Code of Civil Procedure, 1908 Act (V) of 1908. The Hon’ble City Civil and Sessions Judge, Bengaluru, approved an ad-interim injunction in favor of The Indian Performing Rights Society Limited (IPRS) in 2019. The injunction was issued against an orchestra organizing company named Antardhwani, in relation to a live event.
It was held in the case of Anand R.G. v. M/s Delux Films[3] 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.[4], 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.” It was observed in the case of Exphar S.A.& Anr. v. Eupharma Laboratories Ltd & Anr.[5] 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’.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.[6]
BASIC PROCEDURE
1. The first thing is to record the song in a manner that is tangible.
2. Register for an account at the copyright office or website.
3. Paying the registration fee.
4. Submitting the copy of the song to the council.
5. The final step is to wait for the registration to be processed, these are the basic general steps that have to be followed.
PUNISHMENT FOR INFRINGEMENT
When a person is committing a copyright infringement which is using the other person’s work or any other issues relating to copyright, it is considered to be a crime. The punishment may extend to imprisonment of up to three years and the accused will also be liable to a fine of up to two lakh rupees.
The registration is not mandatory but when issues arise in the court according to infringement or more than that we can use, it as prima facie evidence in a court of law with reference to disputes relating to the owner of the copyright. This registration will serve as important evidence so that the case will be in favor of the real owner.
CONCLUSION
It can be concluded that since music-making involves great effort and toil, immense creativity, diligence, imagination, and craft, it has to be protected in the best way possible. The law ensures that music and the rights of musicians and performers are protected under the Copyright Act. The aforementioned cases establish that the singers, composers, lyricists are entitled to protection under the Copyright Act.
Anything can be copyrighted not only music but ideas, inventions, etc. The main purpose or goal of copyright is to avoid copying and give the owner the absolute right over his thought or invention. By way of obtaining copyright, they make money which is the fruit obtained for their brilliance, and also get recognition. Therefore, copyrights of music in India have become more effective after the 2012 amendment and thereafter.
In a gist, to copyright, a song one has to record it, then make an account on the official site, pay a fee, submit the song, and then await the copyright. If granted, the copyright for a commercially recorded song lasts for up to 50 years. Illegally performing, distributing, or selling it can lead to a hefty fine and a jail term.
[1]AIR 1977 SC 1443
[2]2000 SCC OnLine Mad 381
[3] (1978) 4 SCC 118
[4]AIR 2001 SC 2885
[5]AIR 2004 SC 251
[6]https://www.mondaq.com/india/copyright/724666/capitalising-music-in-india-performers39-royalty-rights-video
Navin Kumar Jaggi
Gurmeet Singh Jaggi
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