This article is written by Tushar Gerewal pursuing Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.
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In recent times, songs are seen as the quintessential way to promote an upcoming film. Remember the song “Apna Time Aaega” of the movie Gully Boy or the title track of the web-series Scam 1992 which served as a crowd puller for the producer? Imagine a situation where such song or sound recording having a million views is subjected to undesired and unwanted exploitation; and/or subsequent litigation merely because the rights thereof are not secured. The article throws light on the music rights, their beneficiaries, and addresses concerns like how are music rights exploited; what are the advantages of securing the rights, and how to register a film’s music under the Copyright Act, 1957.
What are music rights?
Although there is no literal definition of ‘music rights’, the term can be understood as a bouquet of rights associated with a particular song.
Publishing rights are the rights in musical composition/work and the lyrics (literary work) of the song. These are also termed as ‘Rights in the Underlying Works’ of the song and the supporting rights revolving around the publishing right are provided under Section 14(a) of the Copyright Act, 1957.
Mastering rights (also called sound recording rights) are the rights in the song as a whole. It can be said that the publishing rights are a part and parcel of the mastering rights of a song. The term ‘sound recording’ is recognised under Section 2(xx) of the Copyright Act and the supporting rights revolving around the mastering rights (sound recording right) are provided under Section 14(e) of the Copyright Act, 1957
Many times we have appreciated a particular individual playing an instrument in the background, leaving aside the appreciation received by the singer. Such an individual is recognised as a performer under Section 2(qq) of the Copyright Act, 1957. Performer’s rights (provided under Section 38 and 38A of the Act) are the special rights conferred to the performers engaging in performance. These rights subsist for a period of ‘fifty years’ from the subsequent calendar year of such performance.
Moral rights of the performer
Moral rights (provided under Section 38B of the Act) is another special right provided to a performer for his/her performance. By virtue of this, a performer as a matter of right can claim to be identified as a performer. Further, the performer also can restrain or claim damages against any distortion or mutilation of his performance that affects/could affect his reputation.
Special rights of the author
Running on similar lines are the special rights provided to the authors under Section 57 of the Act. The authors can claim authorship of the work as a matter of right by virtue of this section. Further, an author can restrain or claim damages if there is any distortion, mutilation, modification, or any other act in relation to his work that is or can be harmful to his reputation or honour.
The Hon’ble Delhi High Court in the case of Mannu Bhandari vs Kala Vikas Pictures Pvt. Ltd. has provided certain findings in relation to the special rights of the author. It was held that Section 57 of the Copyright Act keeps the author’s status above the material gains of copyright and gives it a special status and protection.
This ‘special protection’ is evident by the fact that the remedies of restraint or damages can be claimed “even after the assignment of copyright either wholly or partially”.
The findings of the court were that Section 57 is a special provision for the protection of the special rights of the author; if in case there is any distortion, mutilation, modification, or any other act in relation to the work which could be harmful to the reputation or honour of the author.
Further, the object of the Section is to put the intellectual property of the author on a higher footing than the other objects of the copyright. The language of Section 57 is of the widest amplitude. It covers the visual and audio manifestations directly and is not restricted to only the literary manifestations.
Adaptation means ‘creation of a new work on the same or a different line of the already existing work so made’. The Copyright Act, 1957 under Section 2(a)(iv) recognises ‘adaptation’ in respect of a musical work as a new arrangement of an original musical work. Thus, the concept of ‘old wine in a new bottle’ in relation to songs and movies wouldn’t have been possible if there was no Adaptation Right provided for.
Right to communicate to the public
The right to communicate to the public (as defined under Section 2(ff)) is the very basis on which a song can be exploited for monetary gains. In the absence of this right, there would have been no exploitation of any other right in a song or a musical work. It wouldn’t be wrong to say that this particular right keeps all other rights tied together.
The right to communicate to the public is an important and a supporting right for the Sound Recording Rights and (provided under Section 14(e)(iii)) Publishing Right (provided under Section 14(a)(iii)) and Performer’s Right (under Section 38A(a)(iii)).
International Confederation of Societies of Authors and Composers VS Aditya Pandey, is an important case dealing with Section 14(a) and 14(e)(iii). The Hon’ble Supreme Court held that Section 14(a) of the Copyright Act cannot be interpreted to mean that the right of the producer of a Sound Recording to communicate his work to the public under Section 14(e)(iii) of the Act is lost.
The apex court laid the finding that although the seven sub-clauses of Section 14(a) relating to literary, dramatic, or musical work are independent of one another, reading these clauses independently cannot mean that the right of the producer of a sound recording who has a right to communicate his work under Section 14(e)(iii) is lost.
Previously in the same case, the Hon’ble Delhi High Court had held that if a party wishes to perform a ‘sound recording’ in public, a license from the PPRS (‘Phonographic Performing Rights Society’) is required. If the ‘musical work’ needs to be performed independently in public through an artist, then a license from IPRS (‘Indian Performing Rights Society’) is required. And in case a party wants to perform both kinds of work (musical work and sound recording) a license from both IPRS and PPRS is required.
It would not be wrong to consider that infringement of any one right in a song will affect the other rights as well, to some degree directly or indirectly. One right cannot be viewed in isolation as the rights are interlinked with each other. For example, the right to communicate to the public is linked to the performers’ rights and mastering rights.
Who are the beneficiaries of music rights?
Just as one particular song/music consists of multiple rights, there are multiple beneficiaries of music rights too. The concept is similar to the multiple pieces of a jigsaw puzzle which collectively make a big picture.
The Copyright Act states that the ‘author’ is the first owner of the copyright. Thus, the author being the first owner of the music rights is regarded as one of the beneficiaries of the rights associated with music. Some of the beneficiaries of music rights are as follows.
The lyrics of a song come under the ambit of ‘literary work’, as defined under Section 2(o) of the Act. Although the Act does not mention the term ‘lyricist’ specifically, Section 2(d)(i) of the Act states that in relation to a ‘literary work’, the individual who writes the work shall be construed as the author of the work; and accordingly, is a beneficiary.
The composer is one of the key beneficiaries of music rights. Section 2(d)(ii) of the Act states that the composer of music is the author of it. According to Section 2(p) of the Act, a musical work consists of only the music and its notation and it doesn’t include words that are sung or spoken along with the music. In other words, a song is an amalgamation of literary work (ie, lyrics and words) and the music so composed by the composer. Thus, generally, a composer being the author of the music in the song is considered as the first owner of the rights in the music; and ultimately becomes a beneficiary of the music right.
A singer is included within the ambit of ‘performer’ as mentioned in Section 2(qq) of the Act. By virtue of a singer’s engagement in a song, he/she has the Performer’s Right with respect to the performance (as recognised u/s 38, 38A, and 38B). Under this umbrella of performer’s rights, a singer has various rights; say the right to make a sound recording or a visual recording of his performance, the right of reproduction of it, communication to the public, moral rights, etc. Ultimately a singer (performer) has an interest in music rights. Thus, a singer is recognised as a beneficiary in the music rights.
Section 2(d)(v) of the Act provides that the producer shall be the author (first owner) of the sound recording. As stated above, the Sound Recording Rights are the rights in the song as a whole, whereby it shall encompass all the other rights associated with that song. Thus, the producer being the author of the whole sound recording can get the copyright in the whole song. Therefore, a producer is to be termed as the prime beneficiary of the music rights.
The point is that when a producer of a movie engages the lyricist or a composer for valuable consideration for the purpose of using the music/sound recording so made as a part of the movie, the composer or lyricist acts merely under a contract for consideration. So once the music/sound recording is made a part of the movie, it is the producer who enjoys the first owner status for the sound recording or music so used.
In the case of Indian Record Manufacturing Co. Ltd. VS Mr. Illaiyaraja, the Madras High Court confirmed that a producer of a cinematographic film is the first owner of the sound recordings and musical works which form a part of the film (in the absence of any agreement to the contrary with the music director or composer).
The Hon’ble High Court stressed the point that Section 17(b) of the Act provides that in a cinematographic film, the first owner is the person at whose valuable instance such film is made (unless there is a contract to the contrary). It is the producer who engages the music composer to compose the music for the film for a valuable consideration. Under this engagement, the music so composed is thereafter incorporated in a film. Thus, the producer becomes the owner of the musical work. The producer therefore can sell the entire audio rights to a music label for exploitation. The High Court further pointed out that the producer can exploit the lyrics, music, or sound recording on a stand-alone basis as well.
Thus, it was held that the producer enjoys the ‘first owner’ status in the copyright of the musical work used in the film as a result of engaging the composers for consideration. Further, according to Section 17(b), the right of the film producer will override the composer’s right as the ‘author’ for the musical work or sound recording used in the film.
The Court also relied on the case of IPRS vs Eastern Indian Motion Pictures Association & Ors. and Agilan Lechaman Managing Director vs Ilayaraja and Ors. wherein it was rightly held that the right of the composer/lyricist in the musical work/sound recording used in a film can be defeated by the producer of the film by virtue of Section 17(b) of the Act.
How are music rights associated with a film and how can they be exploited?
The revenue generation from a song is not a one-stop process. In order to commercially exploit the song, the rights and ownership of the rights flow in a particular way; thereby associating and involving various parties therein.
Although the producer is regarded as the first-owner of the copyright in a song (sound recording) used in a film, it is practically very difficult for him to individually exploit the song. Let us now look at the process of exploitation and how it reaches the consumer/audience at the end.
- After a song is produced, the producer transfers a certain bundle of rights (like Right to make digital copies, Right to distribute and sub-license, etc) in the song to the music labels (TSeries, Saregama, etc);
- It is these music labels who actually kickstart the promotion and exploitation of the song and its rights. The reason is that the producer by assigning the rights to the music labels, empowers them to exploit the song and generate revenue from the exploitation;
- The music labels thereafter license the song to various third parties (Gaana, Spotify, JioSaavn, etc), YouTube, and also exploit the same at music festivals.
- This is how the music/song and its rights are generally exploited following which the song is made available to the public at large.
One thing which should be kept in mind is that the Creative Control (authority to make changes to the creative aspects of the song) rests with the producer and is not transferred anytime. This is to ensure that the moral rights of the authors in the song aren’t infringed. So, anytime when a third party is willing to make an adaptation of a particular song, the producer shall be approached for his permission; making him able to ensure that the adaptation is not done in a manner undesired by the producer himself and the authors.
Therefore, after the production of a song, the rights facilitating exploitation are transferred by the producer to the music labels. Thereafter various platforms (Gaana, Spotify, etc) approach the music labels for getting the authority for commercial exploitation and revenue generation. This is how every song reaches the audience at the end.
Why is it essential to register the music of a film under copyright law?
It is essential to register the music of a film under copyright law because of the following reasons:
1. Prima facie evidence
Even though the Copyright Act does not make registration necessary, it is however advised that the music/songs of a film should be registered under the Act. As per Section 48 of the Act, the register of copyright, particulars entered therein and the documents submitted in that respect act as the prima facie evidence and are admissible as evidence in all courts of law without the need of any other proof of originality.
2. Maintaining exclusivity
In the event of an infringement of copyright of the music of a film, registration of the copyright would help to prove that the owner of the copyright had the exclusive right to exploit the music. Thus, registration of copyright acts as a fool-proof stamp of ownership, thereby maintaining exclusivity.
3. Copyright registration ensures speedy justice
If the copyright is registered, it becomes easier for the owner to approach the court and substantiate exclusivity and ownership of the music. Thus, by producing the register of copyright and the supporting documents, the owner is just one step away from succeeding in the suit and claiming damages for infringement. Therefore, it reduces future loss and considerably saves the time of the parties and the court as well.
According to Section 22 of the Act, the copyright in the Music and Lyrics of the song are protected for the lifetime of the author and additionally 60 years after his death. On the other hand, the protection in a sound recording subsists for 60 years from the next calendar year of publication of the sound recording.
In my opinion, a song will surely generate revenue for the producer even if the film doesn’t perform that well at the box-office or when the film loses its charm with time. The register of copyright proves the ownership status in the song. Accordingly, one doesn’t need to go into the fine details of the case to substantiate the claim of exclusivity. Furthermore, considering the huge period of protection provided under the law, it is best to register the copyright for once and reap the benefits for the period provided under the law.
How to register the music of a film under the act?
The music or song of a film can be registered by applying to the Copyright Office along with the application form; Form XIV as provided by the Copyright Rules, 2013.
Important case laws
- In the case of Super Cassettes Industries (P) Ltd. v. Shivam Cable Network (2018 SCC OnLine Del 11695), the plaintiff (operating under TSeries) was the owner of a large repertoire of copyrighted works including sound recording, cinematographic films, etc. Defendant broadcasted the works owned by the plaintiff without a license for the said purpose. The Delhi High Court held that the defendant infringed the plaintiff’s rights under Section 14(a)(iii), 14(a)(iv), 14(d)(iii), and 14(e)(iii) r/w Section 51 of the Copyright Act. The suit claiming injunction was decreed in favour of the plaintiff.
- The case of IPRS Society V. EIMP Association is an important case dealing with the issue of rights of authors in the underlying works and the rights of producers of cinematographic film. It can be inferred from the case that the right to make a sound recording of a song will rest with the composers and lyricists in the first instance. The producer shall have the exclusive right to make a sound recording and communicate the same to the public only after obtaining a license from the respective composers and lyricists. Subsequent to the grant of license to the producer, the composer, and the lyricist shall have no right to interfere with this exclusive right of the producer.
This type of understanding between the parties, the producer shall own the copyright in the sound recording; and the composer and lyricist shall be entitled to copyright in the musical and literary work. The court further observed that the rights of the composer and lyricist can be defeated by the producer where if for the purpose of producing a film he commissions/engages the composer and the lyricist to compose the music or lyrics for a valuable consideration. Here the producer shall be the first owner of the copyright.
The term ‘music rights’ are not defined anywhere in the Copyright Act. Rather it is a bouquet of rights associated with the song or music so produced. The concept of music rights can be divided into three parts- (a) Sound Recording Rights (ie the rights in the song as a whole) and the (b) Rights in the Underlying Works (music, lyrics, etc), and (c) Performer’s Rights. These three broad rights associate with themselves various other rights like the Right to Communicate to Public, Adaptation Right, Right to Reproduce the Work, Right to Make Sound Recording of the work, etc. Having considered that there are plenty of rights grouped together as music rights, it becomes important that there is no undesired exploitation or infringement of the rights.
This stresses on the importance of securing music rights. Although registration of the song under the Act is not mandatory, it is prima facie evidence that is admissible in all courts without the need for any other proof of originality. Further, the author of a work shall be recognized as the exclusive owner of the copyright in that work. By registering the copyright, the owner is just one step away from proving infringement of his rights, leading to a conclusion that it becomes much easier to approach the court, to succeed in the suit, claim damages/seek an injunction, and ultimately get speedy justice.
Therefore, if the music rights are secured at the time of screening of the film, the work gets the tag of exclusivity, there are limited chances of hurdles coming in the way of exploitation, and if at all there is any undesired exploitation or infringement of copyright, there is a sure-shot way to prove ownership of the work.
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