This article is written by Anu Saharan pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.com.

Introduction

Music and teaching music is said to have been known in every society, both in present and past, and is considered to define the culture of people of every state and country in the world. In India, it has got its origin in Vedas. Teaching music is much harder than teaching any other subject and not only must a teacher possess musical skills but it is also important to know the legal boundaries of copyright. With the technological shift in the education methodology, where coaching is switched from classroom teaching to virtual teaching, before using any form of copyrighted work it is important to know whether or not it constitutes infringement under the copyright law. This article will focus particularly on the copyright in music and its exemption under the Copyright Act, 1957 that the music teacher needs to know about.

Copyright deals with the rights of creators of literary works, musical works, dramatic work, artistic works, cinematograph films, and sound recording, and bestows on the creators a bundle of exclusive rights to reproduce, perform and make copies, cinematographic films, sound recordings, translation and adaptation of their creation and protects it from unauthorized use.

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Copyright in the music industry

The music industry and movie industry are interdependent with each other. The rampant use of the creation of musical works and sound recordings in cinematograph films generates revenue for the owners of the underlying works and songs.

When it comes to the music industry, it is important to understand the copyright in underlying works in a song and sound recording i.e., what all elements of copyright are included in a song. Different components that comprise a song are literary works which include lyrics and musical works which include tunes, instruments, notations, composition, which as a whole result in a song or sound recording. From the lyrics to the music and its performance, the copyright law confers separate rights to their respective owners to monetize from their creation and gives protection to it from being used or misused without their permission. 

Generally, the copyright protection in literary and musical works lasts for 60 years beginning from the next calendar year following the death of the author of such work, and in the case of sound recording, the copyright protection lasts for 60 years beginning from the next calendar year following the year in which the sound recording is released.

Essential elements a music teacher needs to know about copyright law

Fortunately, Indian copyright law allows persons other than the owners to use the copyrighted works without permission for certain purposes only. The exhaustive list of acts which doesn’t constitute copyright infringement is listed under Section 52 of the Copyright Act,1957.

In the course of teaching, teachers often use copyrighted works to demonstrate concepts to students. Although, the copyright law in India allows teachers to make use, reproduce, perform, display literary, dramatic, and musical works during the course of instruction to students and in the activities of an educational institution, without taking permission of the copyright owner. However, it is very important for teachers to know how this exception operates and how they can get themselves immune from any copyright infringement claims. Exemption to utilize the copyrighted musical works or sound recording for teaching or educational purposes is captured under 52(1)(a), Section 52 (1)(i), and 52(1)(j) of the Copyright Act, 1957

Personal use of music teacher: Section 52(1)(a)

Section 52(1)(a)(i) of the Copyright Act, 1957, authorises fair dealing of copyrighted works for private or personal use, including research. However, the Act doesn’t define fair dealing, and as such, the Indian courts use a non-rigid approach in each case and exercise prudence in order to determine what constitutes fair dealing. The common factors which are considered by the courts are:

1. Amount and substantiality of the portion used vis-a-vis the copyrighted work as a whole
2. The purpose and character of use i.e., whether the purpose of the use is a commercial, non-commercial or educational purpose?
3. The nature of copyrighted work i.e., whether the use is transformative in nature?
4. Degree of impact on the potential market of the copyrighted work i.e. whether the user has resulted in any loss or harm to the sale of the copyrighted work?

For the personal use of underlying works in the song and sound recording, the music teacher will be protected against any copyright infringement claim if the copyrighted work is used in a fair manner and is not reproduced as a whole or substantially, which would otherwise constitute a copyright infringement.

Reproduction of copyrighted works for educational purposes only: Section 52(1) (i)

Section 52(1)(i) covers the reproduction of copyrighted works by teacher and pupil, where the teacher imparts knowledge or education to the students for which they have approached the teacher, as per the prescribed syllabus during the academic year. The main points to be looked at in this section are:

1. The reproduction or distribution of works must be done in the course of imparting instruction by a teacher to the students. Here, the term ‘teacher’ here means to include educational institutions.
2. It must be done in the course of instruction which is not confined to a classroom or lecture room setting and goes beyond the personal interface between a teacher and student.
3. It must be done as a part of the syllabus prescribed by the educational institution during the academic year.
4. The instruction is given to enrolled students only.

If during the process of teaching, a teacher wants to reproduce the music notations or notes of song composition, then it would not constitute a copyright infringement if it is done in the course of educational instruction during the academic year. For instance, if a music teacher displays and distributes music notation symbols of a song to the students during a music class, then it would fall under this exception.

Another instance; during a music lecture, where a teacher teaches how to play the harmonium and distributes extracts of a musical composition, then it will fall under this exception.

It does not matter if the entire work or a substantial portion of the work is used, the law only looks at whether it is essential for the purpose of education.

Performance of a copyrighted work by a teacher- Section 52(1)(j)

Section 52(1)(j) of the Copyright Act, 1957 deals with making the performance of literary, dramatic, or musical works, by staff and students of the institution in the course of activities of an educational institution which is subject to the audience being limited to such staff and students, parents or guardians of students and person connected with the activities of the institution.

In relation to musical works and sound recording, the act would not constitute a copyright infringement as long as the work is utilized for education and making performance by the teachers and students, in the course of activities of an educational institution, provided it is not listened or performed in public and the audience is limited to only staff, persons connected with the activities of the institution, students and their parents or guardians. To add, the legislation intends to widen its ambit to include the traditional style of educational setting which was there before the education got institutionalised.

The term activities include instructions for the purpose of teaching, whether in classroom interface or tutorials or otherwise, but for educational purposes and to enrolled students only. For instance; singing performances by teachers and students during the annual function attended by staff, founders, and other persons connected with the school, students, and their parents or guardians will fall under this exception. 

Synchronization of music

In case a music teacher wants to synchronize the underlying works (i.e. literary works and musical works) in a song or sound recording with an audio-visual for a commercial purpose, then would require a synchronization license as it falls outside the scope of the available exemptions under Section 52 of the Copyright Act, 1957.

The below tabular section provides a quick summary of the relevant provisions:

Conclusion

The legislation has not imposed any extent or limitation on the use of copyrighted works for the purposes of education or teaching, but the user should not unreasonably prejudice the author’s interests. The primary intent behind extending these exemptions to teachers and educational institutions is to make the knowledge available to students meet the educational needs of society. If a music teacher or an educational institution wants to make use of copyrighted work that falls beyond the scope of these exemptions, i.e., the work displayed to the public, then irrespective of whether it is given free or for money, it would require due permission from the right holders of the work, otherwise, it shall constitute an infringement of copyright.

With the technological shift and advancement, where teaching methodology is going online and physical classroom setting is going digital, protection of copyright is a challenge. Although for the purpose of education, the exemptions under the Copyright Act, 1957 which is territorial in nature, is given to educational institutions and teachers, but the risk to accessibility to the copyrighted work beyond the scope of the exemption exists in digital education and educational institutions need to build a system to secure the access to the copyrighted work is only within and as per the scope of the provisions of Copyright Act, 1957.

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