This article has been written by Hetal Panjari pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

The use of social media and digital platforms has rapidly increased in recent times, particularly during the Covid 19 pandemic. The popularity of user generated content platforms such as YouTube, SoundCloud, etc. gave aspiring artists across the globe an opportunity to reach an audience at large and also earn global reach.

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Home recording is the practise of recording music in a private home instead of a professional recording studio. A studio setup for home recording is called a “home studio” or a ‘project studio’. Many singers, musicians, voice actors, etc. have resorted to recording their musical work at home.

Until the late 20th century, musical work was recorded either on low quality tape recorders  or on expensive tape machines. Due to the high price involved, it was practical to record at professional studios then. However, the cost of setting up this professional audio equipment has dropped significantly due to technological advancements during the 21st century, as information on various recording techniques is easily available online. This has undoubtedly increased the popularity of setting up home recording studios, giving rise to a shift in the music industry towards recording musical works from the comfort of home rather than spending hours at a professional studio. Many artists have set up their own home studio to self record and produce musical works, thus cutting their budget.

How private home recording of musical works and its benefits

A home recording studio is a space in your home where you can record your music, share it on social media platforms, or collaborate with others. Many artists can use a home recording setup to improve their musical skills by practising on their own or with their band. The main benefit of having private home recording studios is that you will be able to make high quality recordings without paying for studio expenses and also have  creative freedom without time constraints.

What do you need to set up a private home recording studio

To set up a private home recording studio, one would need the following:

  • Choose the right place with a comfortable desk and chair, as artists will have to work in a quiet environment without distraction and can also accommodate a complete studio gear setup. Also, this place should be well insulated from the outside to reduce interference with recordings.
  • In order to get best quality recordings , artists will require acoustic treatment (soundproofing) in the room to avoid people talking in other rooms, traffic, any external noise , etc. This can be done by adding acoustic panels, carpet, a sound booth and a voice isolation sheet to that recording room.
  • Essential studio equipment includes – i) Laptop or desktop computer; ii) a digital audio workstation (DAW); iii) Hardware such as samplers; iv) Audio interface; v) Studio monitors; and vi) studio headphones vii) Microphone(s)  viii) Microphone stand(s)  ix) Pop filter x) Musical Instrument Digital Interface (MIDI) keyboard  xi) MIDI Controller xii) Quality cables xiii) Third-party plugins.
  • Once all the equipment are ready, artist is ready to record their audio recording by – i) Connecting hardware; ii) Setting up your software; iii)  Setting up your microphones iv) Record the track.
  • Once the recording process is completed, the artist has to begin the task of mixing and  producing the musical works, which includes combining multiple sounds to shape the recorded music. Once this process is completed, then comes mastering the final tracks by optimising your music so that it sounds clear and consistent across all the music formats and platforms.
  • When music is finally recorded, it is time to distribute and promote it. This includes purchasing digital platforms like Spotify, Apple Music, Pandora, YouTube Music, SoundCloud, Google Play Music and Instagram/YouTube/YouTube reels music. This can also be done by partnering with digital distributors. Many digital distributors don’t have exclusivity deals. It means the artist will not give up their rights to their musical work. Artists are free to end the non-exclusive agreement at anytime. There are also added perks, like recommendation algorithms. These might suggest your tracks to people based on what they listen to.

Legal enactments involved in the private home recording of musical works

In India : Copyright Act, 1957

In India, musical works are protected under the Copyright Act of 1957, which recognises music as a form of artistic expression and graphical notation. The Act covers various aspects of musical works, including melodies, lyrics, arrangements, and sound recordings. Section 2(p) of the Act defines “musical work”  as 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 music. Section 2(d)(ii) of the Act defines the author in relation to the musical work as a “composer.” Whereas, according to Section 2 (ffa), “composer,” in relation to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation.

An application for musical work may also be filed by joint authors/composers. Section 2(z) defines “work of joint authorship” as a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.

Section 22 defines “duration of copyright protection for musical work,” which includes publishing within  the  lifetime  of  the author  until sixty  years  from  the  beginning  of  the  calendar  year following the year in which the author dies. 

In United States : Audio Home Recording Act, 1992

In the United States,the  Audio Home Recording Act of 1992 (AHRA) is an enactment that is an amendment to the United States’s Copyright Act of 1976 aimed at stopping music piracy.  This Act was enacted to protect copyright holders and their copyrighted material and  enacted a legal and economic compromise between the interests of audio hardware manufacturers, blank recording media manufacturers, sound recording and musical composition copyright owners, songwriters and recording artists, and consumers. AHRA prescribes copyright infringement action based on  home recording and is a legislative attempt  to settle the debate over the legality of home tapping. 

As technology advances, the law must adapt to properly regulate the use of the technology and protect the products it creates. For example, artificial intelligence (AI) has raised a number of legal questions, such as how to ensure that AI systems are fair and do not discriminate and how to hold AI developers liable for the harm caused by their systems. Similarly, the development of new medical technologies, such as gene editing, has raised concerns about the ethical implications of these technologies and how to ensure that they are used for good and not for evil.

The American Health Records Act (AHRA) is an example of how legislation is created as new technology gives rise to new issues. The AHRA was enacted in 2009 in response to the growing use of electronic health records (EHRs). The law was designed to promote the adoption of EHRs by providing financial incentives to healthcare providers who use them. AHRA also established a number of privacy and security requirements for EHRs.

AHRA is just one example of how the law must adapt to new technologies. As technology continues to advance, the law will need to continue to evolve in order to keep pace. This will require lawmakers to be proactive in identifying and addressing the legal challenges posed by new technologies.

AHRA enabled the release of recordable digital formats, such as digital audio tape, without fear of contributory infringement lawsuits. This Act amended the U.S. copyright law by adding “Digital Audio Recording Devices and Media.”

In Japan : Society for the Administration of Remuneration for Audio Home Recording

In Japan, the Society for the Administration of Remuneration for Audio Home Recording (SARAH) is responsible for the fair distribution of the collected remuneration to the interested parties, which include copyright owners, performers, and producers of the phonograms.

SARAH collects remuneration from consumers who purchase blank audio recording media, such as CDs and DVDs. This remuneration is then distributed to the interested parties based on a formula that takes into account the number of blank media sold, the type of media, and the genre of music. SARAH’s distribution process is designed to ensure that all interested parties are fairly compensated for the use of their works. The process is also transparent, with all interested parties having access to the data used to determine the distribution amounts.

SARAH’s work is essential to the protection of intellectual property rights in Japan. By ensuring that copyright owners, performers, and producers of the phonograms are fairly compensated for the use of their works, SARAH helps to create a vibrant and sustainable music industry. The ultimate distribution is made through the Japanese Society for Rights of Authors, Composers, and Publishers (JASRAC), the Japan Council of Performers Rights and Performing Arts Organisations (GEIDANKYO) and the Recording Industry Association of Japan ( RIAJ), which are members of SARAH.

Legal considerations involved while protecting musical works

Copyright and intellectual property rights (IPR) of the country

While recording any musical work at home, the author must have a clear knowledge of the copyright and intellectual property laws of the country where they intend to publish their musical work, along with international laws, which include a process for filing and registering the work, the costs involved in it, and the terms for which protection can be obtained.

Licencing and permissions

Artists should obtain valid licences and permissions for their musical works to be recorded. Also, music must be played by obtaining  valid licences and permissions. It is illegal to play music at an event unless one has a valid licence, as it will amount to copyright infringement. Anyone failing to obtain a valid licence can be sued under the IPR regulations of the country.

Creative commons and fair use

Fair use is a set of exceptions in copyright law that allow people other than the copyright holder to use copyrighted material without seeking permission or paying royalties. Whereas under Creative Commons, musical work may be used without permission of the copyright holder but only under certain circumstances.  This applies to the work that copyright holders have chosen to designate as ‘creative common’.

Privacy, plagiarism and data protection

When sharing your musical works online, copyright holders must take into consideration the privacy, plagiarism, and data protection regulations of the country. Piracy and plagiarism are two different aspects of copyright infringement. Piracy refers to the unauthorised copying, distribution, or sharing of copyrighted material, such as music. It can occur in physical formats like CDs, DVDs or pendrives, as well as in digital formats such as MP3 files or online streaming platforms. Piracy not only affects your ability to earn income from your music but also undermines the value of your work. Plagiarism, on the other hand, involves using someone else’s work without permission and passing it off as your own. This can include copying melodies or lyrics, using music samples without proper credit or obtaining permission from the  author of the musical works.

Despite taking due care, plagiarism still occurs. The following preventative measures can be taken:

  • Use tools like Google Alerts, Shazam, or Content ID to monitor your music and detect any instances of piracy or plagiarism. Search for your musical works online and offline to ensure that they have not been used by someone else.
  • iReport infringement or violation to the platform or service where your music is hosted or distributed. Also,  this can be done by taking legal action against such sources.

Performance rights and royalties

If your musical work includes original compositions, it is essential to understand  performance rights and royalties. Performance royalties are generated when your musical work is performed live (whether by you or another performer) and when it is played on certain forms of digital media platforms.

Steps to protect musical works

Steps to protect musical work includes-

Register musical works with a Performing Rights Organisation (PRO)

A PRO is an organisation collecting royalties on behalf of songwriters and publishers, building a link between the owners of composition copyright and music users (from radios and streaming services to your local business broadcasting music in the store). By registering your music with a PRO, such as – i) ASCAP; ii) BMI; iii) SESAC; iv) AMRA; v) MSCS; vi) JASRAC; vii) GEMA; viii) IPRS; ix) PRs for Music; x) SACEM, you ensure that you receive proper compensation when your music is played on the radio, performed live, or used in films, TV shows, or commercials.

Register musical works with a Mechanical Rights Organisation (MRO)

MRO collects royalties and offers a single licence for songwriters and publishers when their music is reproduced physically or digitally, giving creators a way to maximise royalties for their musical works with a streamlined process. By registering your music with an MRO, such as Harry Fox Agency (HFA) or Songtrust, you protect your rights and ensure that you receive royalties when your music is sold, streamed, or downloaded.

Register musical works with a Digital Rights Management (DRM) Service

A DRM service is the use of technology to control and manage access to copyrighted material. DRM enables authors, musicians, and content creators to control what people can and cannot do with their content. Thus, it also allows them to protect their copyrighted material. DRM enables content creators and copyright holders to:

  1. Prevent or restrict users from editing, saving, sharing, forwarding, printing, or taking screenshots of their content or products.
  2. Set expiry dates on media, which prevents access for users beyond that date or limits the number of times they can access it.
  3. Limit media access to specific devices, Internet Protocol (IP) addresses, or locations.
  4. Watermark documents and images to assert ownership and identity of content.

By registering your music with a DRM service such as Audible Magic, Kilohearts, Xfer, Voxengo, iZotope, etc., owners can add extra security to their musical work to avoid piracy or plagiarism.

Music metadata to your audio files

Metadata is information embedded within your audio files that provides details about your song, such as artist name, producer, writer, song title, and release date, and is used to identify, sort, and deliver your musical work. Adding metadata helps in identifying and tracking your music for proper credit and licence. Music metadata can be divided into three main types:

  • Descriptive metadata details include the contents of the recording, with objective text tags like song title, release date, track number, performing artist, cover art, and main genre.
  • Ownership metadata helps to ensure that each and every party taking part in the music creation process, which includes performing artists, lyricists, producers and songwriters, is remunerated accordingly.
  • Recommendation metadata reflects the contents of the recording and describes how it sounds. Each music platform will have its own approach to recommendation metadata generation and its own database behind the recommendation algorithm 

Watermarking your audio files

Audio watermarks function by encoding a unique digital watermark into an audio file. This process uses a complex algorithm to create a watermark that is difficult to remove without affecting the quality of the original audio. The process involves embedding a unique identifier, a digital code or pattern, into the audio file. This identifier can then be detected or extracted later to confirm the authenticity of the content or to identify instances of unauthorised copying or use.

Add licencing to your audio files

Licencing allows the owner to specify the terms and conditions of use and distribution of your musical works. Creative Commons and All Rights Reserved are two common types of licences. By adding licencing to your audio files, you make it clear how others can use your music. This can be helpful for both you and the people who want to use your music. For you, it can help protect your copyright and ensure that you are compensated for the use of your music. For others, it can help them understand what they can and cannot do with your music, which can save them time and hassle.

There are a few different types of licences that you can use for your audio files. The most common type is a Creative Commons licence. Creative Commons licences allow others to use your music for free, but they also impose certain restrictions on how the music can be used. For example, some Creative Commons licences require that others attribute you as the author of the music, while others allow others to use the music for commercial purposes.

Another type of licence is a commercial licence. Commercial licences allow others to use your music for commercial purposes, but they typically require that you pay a fee. The cost of a commercial licence will vary depending on the type of licence and the length of time that you want to use the music.

Conclusion

Engaging in this private home recording of musical works has  legal implications. Copyright laws, licencing, permission, and fair use guidelines must be ensured and complied with to protect the rights of music creators and copyright holders. However, while recording and uploading musical works on the user generated platforms can be a great way to build a fan-base and gain popularity, monetizing those works can turn out to be a legal nightmare.

Newer forms of protection are also emerging, particularly stimulated by the exciting developments in technological activities. With creativity being the keystone of progress, no civilised society can afford to ignore the basic requirement of encouraging the same. With recording facilities for musical works now available at the convenience of your home, it enables the artist to create musical works anytime. Intellectual property protection is thus dual in nature, i.e., it has both a national and international dimension. Thus, the conduct of intellectual property as well as its protection are governed by national laws and regulations and international treaties, which jointly serve as a consolidated set of regulations for intellectual property rights.

References

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