This article is written by Udit Atul Kokanthankar, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com and Himani Sagar.
Introduction: The beginning of music and its infringement
At the point when you hear a melody on the radio, mobiles, TV slots, motion pictures, music shows or a youtube video you are hearing two separate copyrights: one is the musical composition and the second is the sound recording. The qualification between these two is significant, in light of the fact that despite the fact that it is their mix that assists with making the melody and has its own independent entity, they are as yet two separate works of art and competent for copyright purposes and might be independently licensed or enforced. It will be more obvious this differentiation in the event that we understand what every one of them includes:
A musical composition
Covers music, including verses (going with words). The creator of a musical composition is referred to as the composer alongside the lyricist in cases where the lyricist and author are different. A musical composition can be as a notebook duplicate, for example, sheet music or as a phone record (tape, CD, LP, and so on).
A sound recording
Is a consequence of fixation of the musical, sung, or assorted sounds series. Typically the performer, the recorder, or both, produce the sound record.
An artist, performers enter into agreements with the individuals who assist them with distributing their speciality for the crowd to encounter it. In this sort of an agreement, the artist willfully permits the publishers the right to publicize his work of art to any other person they wish to in return for a measure of cash, the publisher permits the individual taking the consent a permit to utilize the exhibition of the artist in that specific way which he takes into consideration. This whole cycle of giving of rights and waving off the limitation for the utilization by just a single individual is a harsh illustration of what is legitimately called as “performers right”. It isn’t unexpected to see performers grant their copyright in their sound recordings to the record mark they are recording under.
Thereby, if some other individual with the exception of the licensee needs to utilize a copy crafted by the artist of which the copyright is possessed by the publisher can just do as such subsequent to taking the consent from the publisher themselves. Assuming nonetheless if an individual needs to utilize an all-around arranged melody, he needs to take consent from the two beneath mentioned individuals:
- The individual who is holding the copyright in the musical composition (the writer or publisher) and,
- The individual who holds the copyright in the sound recording (the performers, record mark, or maker).
Historical development of copyright: “At that point and now”
Music was not an element into the new and ever-growing intellectual property law around the world. It started to gain a bit of recognition towards the 15th century, but there was a lot of evolution that took place before music was introduced in the intellectual property rights and more specifically to be recognized as a part of copyright. The idea of licensed innovation was not broadly settled before 1500.
Statute of Anne in 1709
This is the primary copyright act ever sanctioned on the planet, the British Statute of Anne 1710. The Statute of Anne, passed in England in 1710, was an achievement throughout the entire existence of copyright law. It perceived that authors should be the essential recipients of copyright law and set up the possibility that such copyrights ought to have just a restricted span (at that specific point set for 28 years), after which works would pass into the public space.
Music was affirmed as a copyrightable topic embraced by the Statute of Anne. As printed documentation – as ‘sheet music’ – and not really that exclusively distributed or remembered for ‘book’ structure.
Writers were granted ‘lifetime’ intellectual rights to cover their own works under the Creative Copyright Act of 1842 (due to the Dramatic Copyright Act of 1833). In addition to 7 years after the publication of the Statute, copyright is issued, whichever of the more famous is 42 years or the life of the author. The Act does not include displays of non-emotional works in any event. The production of the stage is not guaranteed copyrights, even where a creator does his own artistic work.
Year 1851: SACEM
The first copyright collection society worldwide for musical works set up in France (Société des Auteurs et Compositeurs et Editeurs de Musique).
Fourteen European Alliance States recognize the Paris Convention for the Protection of Industrial Property, which came into power in 1884.
This resulted in the Berne Convention for the Protection of Literary and Artistic Works taking place. The Convention sits based on three universal principles and its special principles which can be used by developed countries.
The three fundamental standards are accompanying are:
- Principle of National treatment: giving similar assurance to the artist of one nation for his work in different states additionally like the insurance the residents of that nation get. This guideline applies just to the state’s signatories to the show.
- Principle of Automatic protection: The security will not be contingent, and the equivalent will not be influenced because of any later applied custom.
- Principle of the Independence of Protection: This cover is irrespective of the insurance presence of the country in which the job is born. However, if a Contracting State requires a longer time than is stipulated in the convention and the job in that country is no longer covered, protection can be rejected as soon as protection ends in that country of origin
The Berlin Convention complements the rundown of the works provided for in the Berne Convention in the form of photos, video, and sound recordings.
The extraordinary classifying Copyright Act, 1911. The clauses of one copyright statute can be combined for the first time. The statute strengthens the author’s rights to regulate the dissemination and acceptance of exhibits by any mechanical process, Sound accounts are currently guaranteed (as are works of design).
Gramophone Company Ltd. v. Stephen Cawardine and Co.
In this case, the British courts perceived that proprietors of sound accounts should be provided payment for the telecom and public execution of their copyrights as musicians were at that point being provided compensation for such exercises by the uprightness of their participation in the Performing Right Society. The affirmation of a different right prompted the foundation of another assortment society known as the PPL (Phonographic Performance Limited) with a particular transmit in order to gather and disseminate broadcasting and public execution sovereignties for UK sound account proprietors.
The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961
The Convention guarantees that phonogram makers of phonograms are displayed, and broadcasting organizations are guaranteed.
The participants (actors, vocalists, musicians, music fans, dancers etc.) are protected from practices that they do not embrace. Such steps are planned, if the first repair was rendered without their approval or if reproduction was made for other purposes than those on which they agree, to relay the live performance to the public, to correct the live performance of these acts and to replicate them.
Phonogram manufacturers value the right to permit or deny their phonogram dissemination, either immediately or roundabout. In the Rome Convention, phonograms are defined as an importance of the only ancient fascination with clues or tone. At the stage of which a phonogram transmitted for commercial purposes provides optional usage (such as contact or communications to people in general within some other structure), the consumer shall render a lonely equal compensation to or to the executors of phonograms and the two executors.
The broadcasting organizations have the power to allow or forbid such activities, i.e., the fixing of broadcasts, the re-diffusion of their broadcasts and the public contact of their TV stations if that communication is made in locations that are reached by the public, subject to an admission fee.
Year 1996: TRIPS Agreement
President Clinton gave consent in December 1994 to the Uruguay Round Agreements Act (URAA) that led to the adoption of GATT and Trade-related Intellectual Property Aspects in December 1994 (TRIPs). US copyright law corrected by URAA clauses. The copyright for works from eligible countries was reinstated on 1 January 1996.
WIPO Copyright Treaty (WCT) (1996)
Under the Berne Convention, the WCT forms a special arrangement. Any Contracting Party shall, to preserve literary and artistic activity (no matter if it is not restricted by the Berne Convention), comply with the fundamental provisions of the 1971 (Paris) Act of the Berne Convention (1886). The Convention also stipulates two subjects for copyright protection:
- Computer projects in any mode or type of expression, and
- Database compilations of knowledge and/or other content in any structure and, by selection or action of the matter, involve scholarly manifestations. (The scope of this Treaty is excluded where the knowledge base does not create such a creation.)
Synopsis of The WIPO Performances and Phonograms Treaty (WPPT) (1996)
Protection of innovation rights of two kinds of beneficiaries in accordance with the treaty:
- Performers including actors, singers, musicians, and so forth, and
- Producer of phonograms (the people or legal entities who or which step up to the plate and have the duty regarding the fixation of the sounds).
The Treaty grants the performing group in their exhibits fixed in phonograms four kinds of financial rights:
- The right of reproduction,
- The right of distribution,
- The right of rental, and
- The right of making it available.
Each right shall be an exclusive right subject to unique barriers and exemptions. Not all such hurdles and exemptions are listed here:
- The right of reproduction is important to approve immediate or aberrant propagation of the phonogram in any way or structure,
- The right of distribution refers to the right to approve accessibility to the general population of the first and duplicates of the phonogram distributed by way of sale or other transfer of ownership,
- The right to rent is a significant privilege of which the first copy and doubles of the phonogram to the general population as provided for in public law of the Contracting Parties are accepted (aside from nations that from April 15, 1994, have in power an arrangement of even-handed compensation for such rental),
- The right to make a presentation available to general society by wire or remote means to entities from individuals in general, so that they can be made available directly and immediately. The right is the right to make it available to general society by wire or remote approaches. In fact, this right covers on-demand, digital connectivity over the Internet.
The Treaty provides for three sorts of monetary rights to performers regarding their unfixed (live) exhibitions:
- The right of broadcasting (with the exception of rebroadcasting),
- The right of communication to people in general (aside from where the presentation is a transmission execution), and
- The right of fixation.
- The Treaty also grants performers moral rights: the right to profess and be known as performers and the right to petition against fabrication, mutilation, or any other alteration which could prejudicially favour the performer.
Taking everything into account, the Treaty provides for four sorts of rights (all financial) in their phonograms:
- The right of reproduction,
- The right of distribution,
- The right of rental, and
- The right of making it available.
India: The rich culture of artists and history
Current copyright law was created in India at a speed that fit the occasions India was confronting, in what we might be related to an outline that was spread over a time of 150 years when there were three particular stages which assisted with forming the copyright law of India.
Stage I: East India Company Statute
The Britishers during their reign in India presented copyright law in 1847 this sanctioning was given to assure the artist for his work for as long as he lives in addition to seven years posthumous. The greatest insurance which could be allowed was 42 years for such copyright. The government has the ability to propel for the award of necessary permits against the individual who is the proprietor of the copyright and will not permit the publication of a book after the destruction of the writer of the book.
Infringement under the act was given exceptionally wide and elaborative importance, it comprised of the act by an unapproved individual printing of a copyrighted work with the end goal of offer, recruit, exportation, publication and so on
Stage II: Copyright Act 1914
In 1914, Indian administrators made an endeavour to administer another copyright law of the nation and they concocted the law under the name of the Imperial Copyright Act 1914, this demonstration was exceptionally affected by the English law and the copyright assurance as in the United Kingdom.
The 1914 demonstration was in operation until the new demonstration of 1957 was established by the recently autonomous Indian parliament, which gained power on 24 January 1958.
Stage III: Post Independence
After independence, the Indian parliament was anxious to relinquish all the provincially made laws and to supplant them with their own Indian law for the individuals of Independent India and by the individuals of Independent individuals. Consequently, the Indian Parliament revoked the Copyright Act, 1914 with the 1957 demonstration.
What is copyright in music?
As expressed, no law in the world characterizes what these two words mean when assembled, however, there are different sources from which we can twist out a fitting definition for it.
- Oxford Dictionary defines copyright as The exclusive right to print, write, perform, film, or record literary, artistic or musical content, granted to an originator for a number of years.
- Merriam Webster defines copyright as The sole legal right to print, distribute, sell, or disseminate the content of anything (for example, literature, music or artisanal work).
- Black Law’s Dictionary defines and explains the word copyright as The ownership of literary property as acknowledged by constructive legislation and sanctioned. a right by statute to the creator or author of such literary or artistic productions, in which, for a limited time, he is entitled to copy and print copies of them and sell them exclusively and solely.
History of the musical copyright in India
The copyright Act of England was introduced by order dated 12 October and applied to India as part of His Majesty’s jurisdiction. With its limited adaptation and extension intensity, the Indian legislature passed the Copyright Act 1914, in accordance with Section 27 of the Act. The Act also promised works of music.
It was necessary to create an autonomous independent copyright law after the enforcement of the Constitution of India. This was largely motivated by general knowledge of writers’ rights and responsibilities. It has also been essential to incorporate detailed regulations about the new turns of events and mechanical development. Thus was passed the 1957 Copyright Act.
Section 2 of the copyright demonstration characterizes the accompanying
Section 2 (d) defines ‘author’ as;
- In relation to a literary or dramatic work, the author of the work;
- In relation to a musical work, the composer;
- In relation to an artistic work other than a photograph, the artist;
- In relation to a photograph, the person taking the photograph;
- In relation to a cinematograph film or sound recording, the producer; and
- In relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;
Section 2 (ffa) refers to the person who produces the song, whether he documents it in graphical notation, in relation to a musical work;
Musical work: Section 2(p) means a work that contains music and does not include words or acts intended to sing, talk, or perform together with music, or any graphic notation of such work.
Section 2 (q) in relation to the performer’s right, refers to any visual or acoustic performance rendered live by one or more performers.
Section 2 (qq) covers an actor, singer, musician, dancer, acrobatic, juggler, conjurer, snake charmer, lecturer or someone else performing; given a person whose performance is casual or incidental in nature in a movie film and is not recognized elsewhere in the normal practice of the industry, including the film credits In the case of film credits.
Section 2 (uu) refers to the individual who takes initiative and is responsible for the creation of the film or sound recording.
Section 2 (xx) applies to records of sounds from the sound, independent of the medium on which it is produced, or the sound mechanism.
Section 2 (y) means any of the following works, namely:
- A literary, dramatic, musical or artistic work;
- A cinematograph film;
- A sound recording.
History of music rights
In the past few years, two orders have been provided seal by The Hon’ble Delhi High Court which can whenever authorized in letter and soul, could alter the manner in which bars and cafés utilize music, live or recorded in order to engage supporters.
Judge S Muralidhar, on 12 August, ruled that a café in South Delhi violated the “inevitable right to earn royalties (R3)” by performing their melodies “without the acquisition of rights of a clearance” and asked the “litigator to supply the tortured group with details of all the funds it received from the show “of the entertainers.”
Similar orders were given against the lounge bar in North Delhi on 30 September, by Justice V Kameswar Rao. Taking part in the board of directors of Lata Mangeshkar, Sonu Nigam, Alka Yagnik, Kumar Sanu, and Pankaj Udhas, the Organization Indian Singers’ Rights (ISRA) reported both cases. What are the rights of an artist to music? Such an investigation is necessary for the present day and age as there are still offences against the local public by committing pirates etc., so the parliament made eminent changes in 2012 and brought significant modifications to the copyright law which render the infringers more versatile and strict as well as relieve the artists since their art is not safeguarded.
Copyright Law 1957 vs. Copyright Amendment Act 2012
A memorable achievement was accomplished in the Indian copyrights system in 2012 during the residency of Manmohan Singh, when Parliament widely amended the Copyright Act, 1957, by making amendments that a part of the profit acknowledged by music organizations and filmmakers from the offer of film melodies and other related materials will go to a corpus reserve, which will be conveyed among musicians, singers and music writers. The goal was to present a level battleground for various partners in the music, film and other imaginative businesses, wiping out inconsistent treatment to lyricists and music arrangers of copyrighted works.
In 1957, the Indian Copyright Act was revised. In May 2012, the Indian Parliament reliably signed the 2012 Copyright Reform Bill in accordance with the World Intellectual Property Organization’s Indian copyright laws (Web Treaties). The question now is, do Music organizations owe the lyricists, singers and arrangers, after ordering a new case of copyright, a lot of money they have earned over the last three years?
The effect of the 2012 Amendments on the 1957 Copyright Act
This segment explores the impact, in 1957, of the Copyright Act (Modification) 2012. In chronological order, the changes were as follows:
Definition of ‘Commercial Rental’
Section 14 added Section 2(fa) as implemented a revised concept for ‘business rental’ and contained in Section 2(fa), where it specifies that “selling or offering for rental or purchase of a duplicate is one of the basic restrictive privileges for copyright owners of PC projects, movies and sound chronicles”.
Definition of ‘Communication to the Public’
Section 2(ff) also extended the concept of “communication to the public.” The exhibits and works are actually combined (rather than merely identical features as the case before the modifications in 2012, such as ‘before’). The description also explicitly notes at present that the communication does not depart from the fact that it is ‘synchronous or is chosen independently at locations and times.’ Therefore, multicasting, narrowcasting and unicasting tends to be incorporated.
Performers and their rights
The right of the artist has been renovated; essentially, no substantial improvements have arisen due to the restructuring, but one notable exception is that the revised Section 38A now requires entertainers to ’eminence for exhibitions for industry’ use. The protections in new section 38B are identical to moral rights.
Section 2(qqu) also involves a modification of the “performer” definition that now indicates that the restoration has not brought any drastic changes but a striking distinction being that performers now have a “perfect right in the case of commercial exhibitions”.
Definition of ‘Visual Recording’
Section 2(xxa) states as follows: “the recording, by any medium, including the discharge of electronics, moving images or portraying images from any medium from which any technique could be viewed, recreated or transmitted.”
Digital Rights Management (DRM)
Three new Sections: 2(xa), 65A and 65B deal with DRM.
Protection of technological measures
Article 65A criminalises if the circumvention is rendered to infringe the rights granted by legislation, the circumvention of an effective legal security measure used to guarantee all the rights conferred by copyright legislation and where the circumvention is exercised in any one of the cases where the statute allows for such circumvention (such as for conducting any lawful investigation or taking measures necessary in the interest of national security).
Meaning of Copyright
Electronic and other storage
In the case of artworks, films and sound effects, copyright requires the option to electronically or by various means, for either media. This update to section 14 gives the impression that it is actually clarifying.
3D-2D conversion of art
The principle to transfer works from three dimensions into two steps and the reverse tends to be incorporated into artistic works through copyright. Nevertheless, it is limited by another law in section 52(1)(w) which permits, for example, the creation of a specialized painting for the purpose of the modern use of a fully functional portion of a precious gadget, for the purpose of making, without the permission of the owner of the copyright, a three-dimensional object.'(c) Still on the copy.
Specifically, Section 14(d)(i)(A) specifies that the reproduction of film stills is one of the exclusive rights of a film copyright holder. This amendment appears inherently clearly to explain.
Authors of underlying works in cinematograph films and sound recording
Parts 18, 19, and 33 have been revised to ensure that the writers of basic work (e.g. lyrics, verses and contents) are entitled to a royalty procedure for the non-dramatic usage of films and sound chronicle work.
Disputes with respect to assignment of copyright
The extent of Section 19A which manages the goal of questions as for the award of rights (brought about by the one-sided lacking activity of the rights conceded) has been restricted to tasks (rather than tasks and licenses, similar to the case prior).
Disputes under the provisions of the clause are usually resolved within half the year after a petition by the Copyright Board, with split directions now being given by the Board ‘in relation to the implementation of the terms of task, and the consideration to be paid for enjoying relegated rights’ (9) Renunciation of copyright
Section 21 was amended to allow the copyright to be relinquished not only by notification to the copyright registrar but also by public notice.
Signatures on licence
The licensing provision to be signed by the license holder has been removed; Section 30 now only includes written licenses.
‘Expansion’ of existing compulsory licenses
Sections 31 and 31A currently refer to ‘all work’ rather than just Indian works, and separately to ‘unpublished or circulated works’ rather than just unpublished Indian works. All items are taken into consideration, their level has been increased. In addition, the Copyright Board can now issue a Section 31 compulsory permit to any accredited person and not merely to the claimant.
Writers and owners are currently eligible to be individuals under copyright from social copyright legislation and various changes have been made to ensure that all producers and owners’ rights are protected and social copyright directives are not deceptive. Similarly, new Section 33A requires the distribution of the tariff method by each copyright company.
Importation of infringing copies
Section 53 was completely rehabilitated and now authorizes, in order to ensure – by compound notification to the Customs Commissioner (or other approved officer) – that, in particular cases, infringing duplicates are classified as rejected items for a limited duration of one year by the implementation of the scheme provided for in Section 53.
Authors’ moral rights
Section 57 has been changed even after the expiry of the copyright of a similar book, to allow the author and even his lawful delegates to exercise their rights of paternity to permit lawful agents to continue if the writer is not properly credited.
The change in the approach of judiciary pre and post amendment
Although the amendments in 2012 to the Act broadened the rights of authors and broadcasting organizations, a major push for reform was to remove inconsistent treatment of derivative works in a film distributed in the Indian media of lyricists and music authors. By industry practice, lyricists and music writers have given the filmmaker all rights in the job for a special one-time amount instalment. This included that lyricists and authors of music had not any further right to any eminence accumulated by their work, whether this had been defended by responding, pursuant to Articles 17(b) and 17(c) of the Act, to the ruling of the Supreme Court in the case of Indian Performing Rights v. Eastern India Motion Picture Association (AIR1977 SC 1443)
Justice Krishna Iyer observed: “Copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to print writing or graphic form of musical works. Author, as defined in Section 2(d) in relation to a musical work, is only the composer and Section 16 confines copyright to those works which are recognized by the Act, which means the composer alone has copyright in a musical work and the singer has none. This disentitlement of the musician or group of musical artists to copyright is un-Indian because of the major attraction which lends monetary.
The value to a musical performance is not the music maker so much as the musician. Perhaps both deserve to be recognized by the copyright law because art in one sense depends on the ethos and the aesthetic best of a people and while universal protection of intellectual and aesthetic property of creators of “works” is an international obligation each country in its law must protect such rights wherever originally is contributed.”
This 1977 decision was widely used against the interests of composers and lyricists in the industry and revenue from revenues by composers and lyricists was held away by rapid technological advances. Because typical concession contracts negotiated by the composers and lyricists included the concession of all rights in works, including infringing rights by the technologies of the potential, the creators of copyright obviously had no role in the enormous profits generated by the producers.
The origins and role of intellectual property rights
A group called the India Performing Right Society entered in 1969 a little grouping of filmmakers, authors, and composers. In comparison, IPRS was not a normal investor organization, but an organization that was constrained by ensuring, i.e. that each of its citizens was responsible for just Rs. 100. Instead of shareholders, the IPRS members depended on the number and not the number of works they had created. When an author is admitted as a full member, without any reference to the number of works produced or generated by him or her, he or she shall have equal voting rights. In conjunction with its incorporation papers, IPRS was founded to perform in a soundtrack the role of the copyright society in song, lyrics, etc.
A copyright society basically functions as a large ‘exchange’ for music. Most copyright owners are members of a copyright company who freely license and enforce song royalty to minimize transaction costs and to make music more open to entertainment users. Similarly, for end-users like the radio stations or hotels, copyright firms are an advantage because, rather than reaching each copyright owner directly, they have to negotiate a license with one company alone, which is both complicated and expensive.
Response to the amendment
As previously expected, the modifications of the year 2012 did not go far too far with the cinematographers and influential music organizations in the country who obtained the film’s music rights and numerous written pleas were placed before the Hon’ble Delhi High Court (Bharat Anand v. Union of India, W.P. (C) – 2321/2013, Venus Worldwide Entertainment Pvt. Ltd v. Union of India W.P. (C)-2318/2013, Super Cassettes Industries v. Union of India, W.P. (C)-2316/2013) to examine the validity of the amendments.
Interestingly, the amendments have not been quite pleased by a group of songwriters and composers (which are claimed to favour amendments) and have even challenged their constitutionality (Devender Dev v. Union of India, W.P. (C)-2959/2013). Songwriters and songwriters of the regional language brotherhood have questioned the second clause of Article 33(1), which obliges them to license companies by means of a copyright corporation, since this limits the likelihood of their licensing and requires them, considering its restricted popularity, to join a copyright company. While those briefs have yet to be determined, the fact that filmmakers are now seeking ingenious ways to generate tools that maintain a range of desires is well known.
In order to ensure that it complies with the provisions of the Amendment Act, the Government had guaranteed that the Permanent Copyright Board and also a Council of the Copyright Enforcement Agency would be established; concrete steps still to be taken against this intent.
Access-facilitating measures in the amendment
One of the highlights of the 2012 legislation is to ensure that copyrighted property holders had affirmative access to approved documentation and were duly covered and implemented for their fair use rights. In this regard, the amending Act not only expanded the number of contractual and binding license conditions laid down in the previous Act but also permitted broadcasting broadcasters, by merely providing copyright owners with prior notice and paying royalties at the rate prescribed by the Copyright Board in Section 3. There is nothing more to warrant any positive consent from the copyright owner or to be able to determine royalty payments, which ensures that broadcasters have practically no privilege.
Copyright owners, which again include significant music labels, are not especially satisfied with the constitutionality of this provision. (Venus Worldwide Entertainment Pvt. Ltd v. Union of India, W.P. (C)-2318/2013, Super Cassettes Industries v. Union of India, W.P. (C)-2316/2013)
Delhi High Court observed- “Musical work isn’t just a mix of tune and concordance or both of them. It should fundamentally additionally have been printed, diminished to composing or in any case graphically delivered or repeated. Each melodic organization has a structure or shape, that is the course of action of individual components in order to comprise an entire and that melodic documentation implies a visual record of melodic sound (heard or envisioned) or a bunch of visual guidelines for execution of music. Its principal components are pitch (area of melodic sound on the scale), span, volume and tone. There are different frameworks of documentation like in sequential order, verbal, mathematical, realistic and tablatures. The words ‘printed, decreased to composing or in any case graphically delivered or repeated’ are in this way, not a vacant custom.”
The problem of ownership of the copyright in film music: Who owns the music and the lyrics of a soundtrack used in a movie?
One of the most confusing issues of Indian copyright law is the question of copyright rights of music and text of a score in a film. A Supreme Court ruling from the Indian Performing Right Society against the Eastern India Motion Pictures Association (‘IPRS case’) in 1977 has been much of this uncertainty. The matter was decided by the Copyright Board before the Court of Calcutta, the ruling of which was later upheld by the Supreme Court of Indian Affairs was dismissed.
In the present case, the Supreme Court ruled in favour of the makers on the basis of Section 17 of the Copyright Act. This provision addresses copyright and presumed ownership of a work. The author of the work, except as specified in that section, shall be deemed to be the owner of that work in accordance with the principal clause of Section 17. Many provisions protect copyrights that are created during the job process or when commission-based work is created, for example. In foreign nations, including the US, this doctrine is called the “work for hire” doctrine.
The Supreme Court based its judgment in the IPRS case on provisions (b) and (c) of Section17 to prove that the filmmakers have the right to everything their writers, including music and lyrics, have been commissioned to do.
The ownership of the resulting work is the person who commissions the creation of any of the following works – a photograph, painting, portrait, engraving or a picture. Similarly, all work created during the period of work is retained by the contractor in accordance with the proviso (c), except in the case specified for otherwise in the contract. In both cases, the object of regulation is to protect the risk-taker who invested in career growth.
The Supreme Court concluded that both clauses related to the conflict between writers and producers and ruled that: “According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the soundtrack associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein ‘and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or lyricist Can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled “Lady Audley’s Secret”, which was to be put on the stage was not an independent composition but was merely an accessory to and a Fart and parcel of the drama and the plaintiff did not have any right in the music.“
Conclusion: Will the Copyright (Amendment) Act, 2012 succeed in its goal?
In the final analysis, the success and lack of the Copyright Act, in particular the copyright agency, which is reformed under the same provision, would depend on how effectively composers and lyricists are able to impose their hard-won rights before the courts. The group of composers and lyricists must also always be on their feet to ensure that music publishers and film producers share royalties with them, as required under the reforms. They should negotiate and register publishers in collective bargaining with copyright societies. This is better said than done because writers, particularly composers and lyricists, tend to be individuals with independent minds.
Besides courts, the Copyright Registrar is also involved in registering and enforcing compliance with modern copyright societies. The Copyright Registrar will then have to show a great deal of experience in copyright administration under existing legislation. In a country as complex as India, it is never easy to enact groundbreaking legislation such as the 2012 Copyright Amendment Act. Indian lyricists and composers are likely to be happy.
Notice and Takedown (NTD) Regime
Section 51(ii) allows for a warning and downgrade (NTD) system that has become a standard in world copyright laws (c). The Indian NTD regime, however, imitates its global peers weakly. Firstly, the effect on freedom of expression and speech is potentially chilling. An ISP could be likely to withdraw or block access to the notified content when a warning is given without disrupting the legitimacy of the statement. The implications of failure to comply with the alarm could prove deadly for the life of an ISP. On the other side, it is almost a risk-free proposition for the ISP that the information being informed is blocked.
Secondly, it would be NTD that would result in indiscriminate censorship. An ISP is visualized in the scheme envisaged by the NTD instead of a judge who is asked to rule on the merit of the copyright charge. In such a situation, the most important thing is that copyright cases are interspersed with legitimate technologies and that ISPs are novices in these practices. The NTD, therefore, places a burden on the ISPs which they cannot bear.
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