This article has been written by Gouri Shrivastava pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

In the year 2023, Grammy Award winner and global popstar Ed Sheeran was in the headlines for his legal victory in a copyright infringement case over his 2017 massive hit “Shape of You.” The petitioners’ lawyer alleged that there was an ‘indisputable similarity’ between Ed Sheeran’s “Oh I, Oh I, Oh I” in the chorus of Shape of You and “Oh why, Oh why” in the track of the plaintiffs. This high-profile case underlined the significance of copyright protection in the lives of artists, especially in the music industry.

As per WIPO’s definition, “Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.” For singers, musicians and other artists, copyright serves as a safeguard against unauthorised usage of their work. Further, by way of licensing, they can earn revenue and generate income for years by giving rights to the licensee to lawfully use their creation.

In today’s digital era, where a person can easily access, use, and exploit the artistic or literary work of anyone in the world, the imperative of acquiring a proper license cannot be overstated. With the recent upsurge in online platforms like Spotify, Jio Savan, YouTube, Gaana.com, etc., it has become all the more important for the artists to navigate their path through complex digital landscapes to secure their work through licensing and must ensure that it is monetised well. Additionally, licensing is a brilliant way to get compensated for their creation and even protects them against the unbridled piracy, which has seen a steep rise in the past decade.

Collective management organisations (hereinafter referred to as CMOs) play a crucial role in this context. CMOs facilitate the administration of the copyright of a performer, producer, or any other artist to a willing licensee. It is responsible for rights clearance and ensures the economic interests of the artist, performer, or producer are catered to.  Examples of CMO are the Indian Performing Rights Society (IPRS) in India and ASCAP (American Society of Composers, Authors, and Publishers) in the United States.

History and evolution of copyright in India

The modern copyright law is a result of the long struggle to balance the needs of the users with the rights of artists, publishers, and producers. The statutes governing copyright differ from country to country. Even though these laws may differ across jurisdictions, there remains one common underlying objective: to grant the original creator due credit for their work and provide them with a source of income through their creation. The rights granted to authors must be in line with public interest, this postulates that knowledge should be distributed and not concealed from anyone. It is generally agreed that the exclusive rights given to authors via copyright are a way to encourage these creators to devote their efforts and valuable time to artistic activities. Therefore, information dissemination through the work of these creators must occur for the benefit of the public at large. 

Evolution of the Copyright Law in India

The roots of copyright law in India can be traced back to the times when manuscripts were copied by scribes and preserved in palm leaf manuscripts. Although the British were the ones to introduce copyright law in India, even before that, the Bombay High Court in the case of McMillan v. Khan Bahadur Shamsul Ulama Zaka (1895-ILR Bom 557) held that the Copyright Act of the United Kingdom would be applicable to India. The U.K Copyright Act of 1842 was the predecessor of the Indian Copyright Act, 1847, which was the first ever copyright law in India. The motive behind this legislation was to give protection to the work of British authors in India.

It was only after the independence of our nation that the copyright laws in India took significant strides. The Copyright Act, 1957, which serves as the primary source of legislation for the present copyright laws in India, saw prominent changes by the Government of India post-independence.   

Expanding its scope further, it included not just artistic and literary works but also music, films, and sound recordings. A copyright board was constituted through the Act to govern disputes related to copyright. Subsequently, to bring our laws at par with international standards, India became a part of the international treaties and conventions on copyright, such as the Berne Convention and the Universal Copyright Convention.

India’s Copyright Act of 1957 is consistent with all international copyright conventions and treaties to which it has acceded. Among these are the Berne Convention (updated in 1971), the Universal Copyright Convention of 1952, the Geneva Phonogram Convention of 1971, the TRIPS Agreement of 1995, the WIPO Copyright Treaty of 1996, the WIPO Performances and Phonograms Treaty of 1996, and the Marrakesh Treaty of 2013. Although India does not participate in the Rome Convention of 1961 or the Beijing Audiovisual Performances Treaty of 2012, the Indian Copyright Act meets nearly all the standards of these agreements.

What is music licensing

For a plethora of people, music plays an important role in their day-to-day lives. From energetic motivational music for a gym workout to soothing and pleasant music for a tedious day, music helps a lot of people survive through the day.

However, without the artists’ ability to receive economic benefits from their work and due credit for their creations, their motivation to compose more such masterpieces would cease to exist. Here comes the concept of music licensing to protect the copyright of the composers and musicians. 

As per the Indian Copyright Act, “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.” Hence, a license is required to authorise, play, or perform music in public places. This license is called a music license. 

Types of music license in India

1. Mechanical license: With the help of mechanical license, general public can enjoy the artists’ creations in the form of CDs, online published music, or any other form of distribution. Generally, this type of license is used by recording companies. 

Copyrighted artists are given monetary compensation for the redistribution and usage of their original work and its re-creation. A mechanical license must be obtained even if there is a slight modification in the original work, such as adding extra lyrics, changing the original tune, or altering anything in the original piece.

2. Public performance license: This is the most common type of music license and is obtained to play music in public places such as malls, airports, shops, restaurants, and even in concerts. The Public Performance License is also crucial for venues and event organisers as it ensures fair compensation to the artists for public use of their work.
3. Synchronisation License (Sync): A synchronisation license, also referred to as a sync license, authorises the use of music along with visual media. This is crucial for filmmakers, TV producers, and advertisers who wish to incorporate music into their films, TV series, advertisements, or video games. For example, a filmmaker who wishes to utilise a specific song as background music for a scene in a film must secure a sync license from the music’s copyright holder. 
4. Master license: A master use license is required when a pre-existing recording of a song is used in a new project, such as in a film, TV show, or commercial. This license is obtained from the owner of the recording, which is often the record label. For example, a commercial that wants to use a specific recording of a song in its advertisement must obtain a master use license to legally include the recording.
5. Print rights license: A print license allows you to produce the music in printed form, such as sheet music or songbooks. Publishers need this license in order to effectively print and sell music notation. For example, a company that produces and sells sheet music for popular songs has to get a print license from the copyright holders. This ensures that composers and lyricists receive compensation for the distribution of their written music.
6. Theatrical license: Theatrical licenses are a type of written permission that is widely used in the theatre industry. The license is required at any time a copyrighted work is performed on stage in front of the audience.

While it is nearly impossible for every copyright holder to manually handle hundreds of license approvals for their work and equally tedious for licensees to approach each creator individually, there is a concept called Collective Management Organizations (CMOs) to streamline this process. You may not come across this term very often in your daily life.  But, let’s simplify this: Collective Management Organisations are basically entities that manage the rights of multiple copyright holders, ensuring that artists receive fair compensation for the use of their works. They play a crucial role in the music industry by administering and issuing various types of music licenses and serve as a link between the creators and users of copyrighted work. CMOs manage the crucial rights of a copyright holder, some of them are enumerated below:

Licensing: The members grant CMOs the right to issue licenses for the use of their copyrighted work, such as music, art performances, etc. This includes distribution of performance licenses for live music, mechanical licenses for reproduction and synchronisation licenses for audiovisual works.

Royalty collection and distribution: CMOs routinely collect royalties from users of copyrighted work, such as broadcasters and restaurants playing an artist’s copyrighted music on their premises. Depending upon the usage of their work, the economic benefit is then transferred to the rights holder.

Rights management: CMOs ensure that the rights of their members are duly protected and properly licensed. They are authorised to take legal action against unauthorised usage of the work of their copyrighted members.

What kind of rights are managed by collective management organisations

Collective management organisations play a pivotal role in safeguarding and administering various rights associated with creative works. Here’s an expanded elaboration on the rights they typically handle:

1. Public performance rights:

• Public performance rights encompass the use of music in public spaces, such as clubs, restaurants, shopping malls, hotels, and community halls.
• These rights extend to live performances by musicians, DJs, and bands, as well as background music played in retail stores, offices, and other commercial establishments.

2. Broadcasting rights:

• Broadcasting rights cover the transmission of live and recorded performances on radio and television.
• This includes music played during news broadcasts, talk shows, documentaries, and advertisements.
• Webcasting and streaming services also fall under this category.

3. Mechanical reproduction rights:

• Mechanical reproduction rights involve the making of copies of music in physical formats such as CDs, vinyl records, and cassettes.
• They also extend to digital reproductions, including downloads, streaming, and the creation of digital music files.
• Each copy made requires the permission of the copyright holder or their representative.

4. Performance rights for dramatic works:

• Performance rights for dramatic works pertain to live performances of plays, musicals, and other theatrical works.
• These rights ensure that playwrights, composers, and lyricists receive compensation when their works are performed in theatres, auditoriums, and other venues.

5. Reprographic reproduction rights:

• Reproduction rights cover the photocopying of literary and musical works.
• This includes the reproduction of sheet music, textbooks, articles, and other written materials.
• Educational institutions, libraries, and businesses must obtain permission or pay royalties for making copies of copyrighted works.

6. Related rights:

• Related rights protect the interests of performers and record producers.
• They include the right to receive compensation for the public broadcast or communication of their recordings.
• This ensures that artists and record labels are fairly compensated for the use of their work on radio, television, and online platforms.

Collective management organisations play a crucial role in ensuring that creators and rights holders receive fair compensation for the use of their works. They work closely with copyright holders to license and monitor the use of creative content, ensuring that all parties involved are properly remunerated.

Membership of collective management organisations

The opportunity to join a collective management organisation (CMO) extends to a wide range of copyright holders. Authors, composers, publishers, writers, photographers, musicians, and performers all have the ability to become members of a CMO. These organisations serve as central entities that administer and protect the intellectual property rights of their members, ensuring that creators receive fair compensation for the use of their works.

While broadcasting organisations play a crucial role in disseminating creative content to the public, they are generally considered users of copyrighted works and are not included in the membership of CMOs. However, it’s worth noting that broadcasting organisations do hold certain rights in their broadcasts, such as the exclusive right to communicate their broadcasts to the public. These rights are distinct from the copyright held by the creators of the underlying works being broadcast.

The exclusion of broadcasting organisations from CMO membership reflects the complex interplay between copyright law and the rights of users. Copyright law aims to strike a balance between the interests of creators and the need for public access to creative works. Broadcasting organisations, as intermediaries between creators and audiences, have a significant role in making creative content available to the public.

Despite their exclusion from CMO membership, broadcasting organisations are still subject to copyright law and must obtain the necessary licenses and permissions from copyright holders before using their works. This ensures that creators are compensated for the use of their works, while broadcasting organisations can continue to provide valuable services to the public by disseminating creative content.

The relationship between CMOs and broadcasting organisations is one aspect of a broader ecosystem of copyright management. Various other entities, such as rights societies, licensing agencies, and government regulatory bodies, play important roles in ensuring that copyright holders receive fair compensation for the use of their works.

When you join a collective management organisation, you share some personal details and list the works you’ve created. This helps the organisation keep track of your works so that when they’re used, you get paid correctly. The works listed by members form a “national” or “local” collection, as opposed to the “international repertoire,” which includes foreign works managed by similar organisations worldwide.

How does a collective management organisation work

There are different kinds of collective management organisations, each dealing with specific types of works, like music, dramatic pieces, or multimedia productions. These organisations handle various rights on behalf of their members. Traditional collective management organisations negotiate rates and terms of use with users, issue licenses, and collect and distribute royalties. The individual rights owners don’t have to get involved in these steps.

Rights clearance centres work a bit differently. They issue licenses based on the conditions set by each rights holder. For example, authors of books and magazines use these centers to manage the reproduction of their works. Here, the centre acts as an agent, but the rights holders set the terms themselves.

Then, there are “one-stop shops,” which are coalitions of different collective management organizations. They make it easier for users to get the permissions they need from one place. These are becoming more popular due to the rise of multimedia productions, which involve various types of works and need multiple permissions.

Conclusion

In today’s digital world, where it is very easy to copy and reproduce the work of others by unethical means, obtaining a proper license plays a crucial role. The emergence of streaming platforms and websites allowing free music downloads has made it easier than ever to listen to our favourite songs just by one click, but it has also underscored the importance of ensuring fair compensation for artists and creators of copyrighted works. Copyright laws in India have evolved significantly over the years, leading to the enhancement of music licensing that protects the creators’ rights while ensuring its enjoyment for users.

Even though obtaining a music license may be tedious at times, it is critical to obtain permission for the use of copyrighted music as it ensures that creators of these works receive due credit and royalties for their creation. Collective management organisations (CMO) play a pivotal role in this ecosystem. They serve as a link between the copyright holders and the users of their work while ensuring that the creators get fair economic benefit from their work.