This article is written by Sudisha Mukherji who is pursuing a Diploma in Intellectual Property, Media & Entertainment Laws from LawSikho.
Table of Contents
Introduction
For an artist, the law that protects his/her art is a very important tool. It is vital for artists to have a good understanding of how intellectual property rights work, especially copyright. intellectual property rights is a wide concept which covers various types of intellectual property under it, like- trademarks, patents, designs, copyrights, and geographical indications. For performers and artists, like musicians, painters, dancers, film-makers, actors, designers, etc. the most important type of intellectual property right is copyright since it governs the rights in and to the artist’s art.
However, for some artists, it might be a combination of one or more intellectual property rights along with the copyright. For example, fashion or jewelry designing can sometimes incorporate more than one intellectual property right. The designer can have a copyright in the core drawing of the design but if the designer uses a particular, inventive process to make that garment, the designer can also patent that process/ technology so used. Additionally, when these services are provided under a specific brand/ business name, that incorporates a trademark. The most important right, for performers, however, is copyright. Copyright law can be complex and sometimes complicated to understand, which is why a lot of artists usually dismiss its importance. But it is crucial for artists to understand what powers are and are not granted under the scope of copyright. 
The Indian copyright act simplified for artists/ performers
What is copyright and what does it protect?
Copyright is a form of intellectual property protection granted under the law to the creators of original works such as literary, dramatic, musical, artistic, cinematographic, and sound recording works. The term ‘literary work’, however, includes many works such as software programs, tables, and compilations, schemes, codes, etc.
Copyright is granted and governed under Indian law by the Copyright Act, 1957, and its subsequent amendments. The most important question that appears around copyright law is whether it is mandatory to register copyright? Indian courts, through various judgments, have rejected that copyright registration is mandatory. Once a work is created, provided it is not a mere idea but presented in some tangible form and is original, the creator automatically has copyright over it.
Who is the first owner of a copyright?
As per Section 17 of the Act, the author or creator of the work is the first owner of the copyright. However, the exception to this rule is that if the creator creates the said work in the course of employment, then, the employer becomes the owner of the copyright. For example:
- if a photographer clicks a certain picture for his/ her own project, then, the photographer is the owner of the copyright.
- However, if the photographer is hired by a magazine for a photo shoot, then the magazine is the owner of the copyright of such photos. This is dealt with in Section 17 (a) and (b). According to Section 17 (b), subject to 17 (a), if work is made at the instance of a person, even in the absence of an agreement, such person shall be the owner.
How can copyrights be transferred?
No one can re-create, reproduce or copy someone else’s work without due permissions or authority to do so. If a movie producer incorporates a musician’s song in his movie, without the necessary permissions and payments to the singer, the producer is violating and infringing the musician’s copyright. There are two main ways in which a person can be authorized to use/ reproduce the creators/ artists copyright, that is by way of licensing or assignment of copyright.
- Assignment:
The owner of the copyright of a work (assignor) has the right to assign his copyright to any other person (assignee). The effect of the assignment is that the assignee becomes entitled to all the rights related to the copyright to the assigned work. The mode of assignment is prescribed under Section 19 of the Act, according to which an assignment of copyright is only valid if it is done in writing by the assignor or his representatives, which is called an assignment deed. This assignment deed must include and specify the following things- which work is being assigned, the specific rights that are being assigned, the duration and territorial extent of the assignment, and the royalty payable to the assignor upon assignment. Assignment of copyright also involves the future assignment of copyright, wherein a performer can assign any future copyright in any work to the assignee whenever such work comes into existence.
- Licensing:
There are two types of licenses in terms of copyright licensing. Voluntary licensing is provided under Section 30 and Compulsory licensing is provided under Section 31. A voluntary license is a lot like an assignment deed as discussed above, essentially, where the licensee approaches the licensor with a view of using the work and the licensor grants a license for such use. However, a voluntary License may be exclusive or non-exclusive. Exclusive licenses are ones which is conferred upon the licensee to the exclusion of other people. Which means no one else can be given a license to the same work. Non-exclusive is the opposite of exclusive license wherein a licensor can license his work to multiple licensees.
A compulsory license is provided for certain work in the public interest under certain circumstances. According to Section 31, if a copyright holder refuses to republish/ allow republishing of his/ her work or refused to communicate/ broadcast the work on reasonable terms, the Appellate Board has the opportunity to grant a compulsory license after reviewing the situation. According to Section 31 A of the Act, where the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a license to publish such work or translation thereof in any language. Section 31 C is important for music artists as it is related to Statutory License for music covers and similarly Section 31 D for statutory licensing for broadcasting of Literary and musical work and sound recording.
What constitutes an infringement of copyright?
Simply put, infringement is any act that constitutes the use of any work, without proper authorization or permission, which one does not own the copyright in. Thus, copyright will be infringed if a substantial part of the work is reproduced. what amounts to a substantial part of the work will depend upon the circumstances of the case. Section 51 and 52 of the Act deals with infringement.
According to Section 51, copyright is infringed when a person, with a license:
- Does anything the exclusive right to do which is conferred upon the owner of the copyright, or
- permits for profit any piece to be used for the communication of the work to the public.
- Makes for sale/ hire or offers for sale/hire the infringed work
- Distributes the work either for trade or any other reason prejudicial to the owner
- Imports the infringing work.
The Act also includes the following in the list of infringement:
- infringement of copyright by copying (S. 17);
- infringement by the issue of copies to the public (S.18);
- infringement by rental or lending the work to the public (S. 18A);
- infringement by performing, showing, or playing of work in public (S. 19);
- infringement by broadcasting or inclusion in a cable program (S. 20);
- infringement by making adaptation or act done in relation to adaptation (S. 21)
The exception to Infringement under Section 52 include but not limited to:
- Private or personal use, including research
- Criticism or review, whether of that work or any other work (Fair use)
- The reporting of current events and current affairs, including the reporting of a lecture delivered in public.
What are performers’ rights under the copyright act?
The Copyright Act extends protection to all ‘performers’ by means of a special right called the “performers right”, in respect of making sound recordings, visual recordings, etc. of their live performances. The definition of ‘performance’ includes any visual or acoustic presentation made live by one or more performers and Section 2(qq) of the Copyright Act defines performers as actors, dancers, musicians, acrobats, snake charmers, a person delivering a lecture, etc.
There are two types of rights conferred by the copyright act on performers- economic right and moral right. These rights are over and above the rights granted to the original author and/or owners of the work.
- Exclusive rights (economic rights) of performers:
Section 38A of the Copyright Act which was inserted in 2012, provides exclusive rights to performers, which allows performers to make or authorize to make a sound recording or visual recording of the performance including- reproduction of it, communication of it to the public, selling/ commercializing of it and issuance of copies. The term of the performer’s rights extends to 50 years after the start of the year of the performance. For instance, if a singer sings and records a song in January 2020, the singer shall have performers’ rights for 50 years until December 2070.
- Moral rights
Another extension of performers’ rights is moral rights as granted in Section 57 of the Act. Moral rights allow an artist to claim credit for their work/ performance and also ensure that an artist’s work performance is not distorted, mutilated, or modified in a way to harm the artist’s reputation.
What are copyright societies?
Copyright Society is a legal body that protects or safeguards the interest of owners of the work in which copyright subsists. The Copyright Societies gives assurance to the creative authors of the commercial management of their works. Sections 33 to 36 of the Act deals with copyright societies.
The copyright Societies discharge the following functions:
- It grants the license of the copyright in the work for reproduction, performance, or communication to the public.
- It locates the infringement of the copyright and initiates legal proceedings.
And the copyright societies have the following powers:
- To issue licenses under Section 30 in respect of any rights under the Act.
- To collect fees in pursuance of such licenses.
- To distribute such fees among owners of rights after making deductions for its expenses.
Copyright Societies must be registered as per the Act. The following are the main registered copyright societies in India:
- Society for Copyright Regulations of Indian Producers of Films and Television (SCRIPT) for cinematography films
- The Indian Performing Rights Society Limited (IPRS) for musical works
- The Phonographic Performance Limited (PPL) for sound recordings
- Indian Reproduction Rights Organization (IRRO) for authors and publishers
It is important to understand how the copyright act works because the Act is constantly evolving and changing with time. The earliest version of the copyright act did not include performers’ rights or moral rights. The concept only came through with modernization and the evolution of technology. Earlier, for example, a music band would perform their songs on a particular day and it would be limited to that performance, until their next performance. However, now, a band is constantly touring and playing music around the world and through various modes. Their performance is not just limited to the live performance but includes television, radio, internet broadcast, etc. This is why the Act has made provisions to include such future mediums and modes of media.
Conclusion
The Copyright Act and its subsequent amendments can seem rather daunting to an artist, who simply wants to create and perform his/ her art. However, every artist in their professional lifetime understands the importance of the copyright act and how much it protects the artist. An artist with a good understanding of their rights can benefit more from his/ her art.
References
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