This article is written by Astha Gupta, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com.
Copyrights, like any other Intellectual Property are concerned with human intellect and the realm is the protection of literary and artistic works such as fine art, music, paintings, software etc. Although it covers a lot of things, some which it doesn’t cover are concepts and ideas, names (you can’t copyright your name however much you love it) and common phrases, data and facts (e.g. you can’t get a copyright for a list of phone numbers and names) etc. The most important area under the copyright world apart from books and paintings is music.
In this write-up I’ve tried to debug and explain in simpler terms the different types of music rights available, how these rights come into force with a special focus on what sound recordings are and protections they confer.
What are Music Rights?
The Copyrights Act confirms the status of music and sound recordings as copyrightable rights by including them in the definition of musical works in section 2(p). However, such music must have been printed, reduced to writing or otherwise graphically produced or reproduced. In other words, it has to be fixed in a tangible medium of expression.
The list given by the Berne Convention for Protection of Literary and Artistic Works includes the musical compositions and it comprises two parts- Sound recordings and underlying Musical Compositions. They might sound similar but from the Copyright perspective, there is a distinction between the two.
There are two broad categories of rights in every musical work:
- Musical Compositions: a distinct fusion and arrangement of notes, rhythm, chords, lyrics etc. This is also referred to as a ‘song’. These are usually held by lyricists and composers.
- Sound Recording: When Musical Composition is recorded it becomes a sound recording also commonly referred to as ‘Master Recording’.
Formation of Music Rights
Musical rights whether as a song or a sound recording, are immediately created when any original work of a person is recorded as sheet music, digital recording or any other forms recognised. But it sometimes gets a little complicated as for various types of rights it can mean different things.
Once somebody records a song, they get a song copyright but the act of recording it also results in another copyright i.e. sound recording right. The ‘song’ copyright protects the composition and the sound recording right protects the recording of performance of the song.
Now, song or composition rights are created when music and/or lyrics are recorded by either jotting down on paper or any other means. Whereas, sound recording rights get created as soon as you fix the recording in any medium regardless of the format for example a disk, tape or audio cassette, vinyl record etc., from which it can be produced and reproduced.
Copyright for Sound Recording
Typically known as Master Recording, it can be defined as an expression of underlying musical composition. As per Copyrights Act section 2 (XX) “sound recording” means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.
Displaying Copyright Notice:
- The Copyright symbol © (capital C, circled) represents the rights of the author of song and composition and lyricists for all works and creations barring the sound recordings.
Example: © 2020 COPYRIGHT OWNER’S NAME. All Rights Reserved.
- The graphic symbol ℗ (capital P, circled) is a sound recording copyright which applies to Phonogram which is a legal term for master recording of music. The works containing sound recordings and collections are distinctly assigned this symbol.
Example: ℗ 2020 COPYRIGHT OWNER’S NAME. All Rights Reserved.
Incidental Rights available with Sound Recording Copyright
A right in the sound recording is different from the right in the material that is recorded. One could have a copyright in a song and an entirely different right in the recording of that song. For example: John is a singer and Max is a lyricist. Together, they come up with a song which they want to record. They approach Panel Media, a recording studio, to get their song recorded. In this scenario, John will have the rights in the song as an original author; Max will have rights in the song as a lyricist and the recording studio will have the rights in the song recorded unless otherwise contracted between the parties.
The Indian laws provide copyrights protection broadly in the form of Economic Rights (enumerated in section 14 of the Copyrights Act) and Moral Rights (enumerated in section 57 of the Copyrights Act).
A copyright is a bundle of rights as provided by section 14 of the Copyrights act, and for sound recordings these rights includes:
- The right of reproduction – this includes the right to make copies of the sound recording in any medium and form like digital downloads or phonorecords.
- The right to create derivatives – this includes creating derivative works on copyrighted materials such alterations and remixes or licensing the work to third parties.
- The right to perform the recording publicly by means of a Digital Audio Transmission.
- The right to sell/distribute or publicly display the recording.
The right to prevent reproduction of recordings given to the producers of sound recordings and right of public performance of a dramatic or musical work are termed as neighbouring rights under the European Law.
Owner of Copyright in a Sound Recording
Copyright protects the rights of the authors i.e. creators of intellectual property. The author is the first owner of copyright in a work. Section 2 (d) defines who the author is as per Copyright Act.
The copyright in a sound recording is owned by the creator of such recording who is usually the person who owns the recording equipment. Only the owner of the work can communicate or perform it to the public and anybody else would need a licence to do so as per the Copyrights Act.
The producer, Record Label or Studio is the author of sound recording rights. However the ownership can also be held by performing artists depending on the licensing agreements between the parties.
The owner of a sound recording copyright will only own the recording rights and not the rights in the underlying works incorporated with the recording like notes, chords, lyrics etc. These will be owned by the creators of the underlying work unless there is an agreement to the contrary.
To sum it up, music or a song consists of a number of rights which may or may not be available with the same person.
- for the lyrics of the song, lyricist owns the copyright and the right can be protected as literary work;
- for the music of the song, composer is the owner and the right can be protected as musical work
- when the song is recorded together with lyrics and music, such sound recording rights are owned by the producer or the record label.
There have been constant debates and conflicting views over rights of producers in sound recordings and rights of authors in the underlying works. The Supreme Court seemingly settled the matter in IPRS Society V. EIMP Association in which it dealt with the question of rights of producers of cinematograph films and rights of composers and lyricists. The conclusions that can be drawn out from the case are:
- In the first instance, only the Composer and Lyricist will have the right to make a sound recording of their song. The Producer can only make the sound recording and communicate it to the public through radio telecast or otherwise, if he has successfully obtained a licence from the composer and lyricist. In that case. The composer and the lyricist cannot then interfere with the exclusive right of the producer in a sound recording. The Producer of the sound recording is entitled to the copyright in such sound recording and the composer and lyricist are entitled to the copyright in their musical and literary works respectively. This construes a harmonious settlement.
- Secondly, the producer can totally beat the rights of composer and lyricist in accordance with section 17 if he commissions the composer of music or a lyricist for consideration to compose music or lyric for the purpose of making his cinematograph film, the producer of the film or sound recording, becomes the first owner of the copyright.
Although the stance has been cleared about the ownership of the underlying works by the Supreme Court in this case, the legal debate still continues.
Term of protection for sound recording works
India is a signatory to the Berne Convention which is one of the oldest international treaties signed in 1886. The Berne convention specifies the minimum standard of protection that the countries having ratified to the treaty must observe.
The convention has set a minimum duration of copyright protection as life of the author plus 50 years. In most countries today, the term has been adopted as life plus 70 years. For example, copyright protection in the US for the work registered and published before 1978 is 95 years from the date of publication of work and for the works created after 1978, life of the author plus 70 years.
Such differences in national laws results in a certain work being copyright protected in some countries but out of protection in others.
Section 27 of the Copyrights act 1957, states the term for which protection is available in sound recording works. In sound recording copyright shall subsist for 60 years. The duration starts from the beginning of the calendar year which follows the year in which recording was first published.
Limitations and exceptions to copyright infringement
Copyright protection is not absolute. Limitations are provided to ensure that rights of public are not unduly restricted. The Law offers two kinds of limitations against the exclusive rights of the owner but the specifics may vary from country to country due to historical, economic and social conditions:
- Exclusion of certain categories of work from copyright protection – In some countries specific works are excluded from Copyright domain e.g. law books.
- Allowing the public some usage of protected works without authorization of the author with or without compensation – This means unlicensed fair use of creative works.
Fair Use Doctrine: The Berne convention realised the fair use exception in Article 9, section 2 which later came to be known as Three- step test. The test in brief conveys that it is the matter of the individual legislations to allow reproduction of certain works (a) in some special cases, (b) when the reproduction does not result in a conflict with normal exploitation of work and (c) does not unreasonably defy the legitimate interests of the author.
Under the Indian copyrights act, 1957 as amended in 2012 fair dealing provisions are provided in section 52(1) exempting certain activities from the purview of copyright infringement. While most of the provisions of section 52(1) are applicable on all copyrightable works, some provisions are restricted to specific works for example, section 52(1)(k) is for sound recordings to be heard in an enclosed room or non profit club; section 52(1)(z) talks about storage with respect to sound recordings and section 52(1)(za) talks of performance in a religious ceremony or a ceremony held by government or marriages.
Organisations set up for Licensing and Protection
Copyright offers a legal protection to the author and owner of the works. It protects the exclusive ownership of a person or a company against any kind of unauthorised usage.
Although Copyright registration is not mandatory, it is a best way to seek a legal remedy as it serves as the best prima facie evidence in the Court whenever a dispute of ownership arises. For instance if someone illegally downloads one of your songs or performs it in public, if you don’t have a copyright registered in that work, you can sue for only damages, which are about peanuts. But if you have your work registered, you can claim what are known as statutory damages.
Also, it is not practically possible for a copyright owner to keep track of all the uses others make of his/her work. Hence, it is in the best interests of the copyrights owners to join a collective administration organisation to ensure better protection of their works and optimum economic benefits from their creations.
Section 33 of the Copyrights act provides for Registration of Copyrights Society for collective administration of copyrights. The main functions of such societies include:
- Issuing license for the rights administered by the society
- Collection fee against such licences
- Distributing the collected fee among copyright owners after making necessary administrative deductions.
We have two important societies in India related to Music Copyrights.
- Phonographic Performance Limited (PPL): Founded in 1941, PPL is a performance rights organization licensing its members’ sound recordings for communication to the public in the areas of public performance and broadcast. It is empowered to collect fees on behalf of its member music labels and distribute the proceeds accordingly.
It is mandatory to obtain a performance license for pre-recorded music being played in public irrespective of whether the organisation is commercial (hotel, shopping mall, gym, cafe etc.) or non-commercial (concert, college fests, festivals etc).
Unauthorised playing of pre-recorded music without seeking the license from PPL amounts to a cognizable non-bailable offence.
- Indian Performing Rights Society (IPRS): In 1969, it was incorporated as a body and later in 2017 was re-registered as a copyrights society under the amended copyrights act. The society is currently chaired by the famous lyricist Javed Akhtar.
It is more of a representative body which handles the rights of lyricists and composers who are its members and collects royalties on behalf of them when their work is used anywhere from Diwali party to a wedding or on TV or radio.
Most of the online streaming platforms are registered with IPRS for using the artists’ songs.
The vista of musical copyrights, especially, is quite complex where every different part of music originates a different ownership of right of the singer, lyricist, producer, record label etc. Each part of the song can have a different author and hence a separate copyright. A sound recording is considered to be created when it is “fixed” in a phonorecord for the first time.
There are multiple right holders in a sound recording. For example, the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music, and the person or company who produced the sound recording.
Copyright subsists in the original work. The reproduction of the adaptation will be possible only with the consent or license of the copyright owner of the original work. If you are the first owner of a work, you’ll enjoy some ancillary rights like reproduction, adaptation, performance etc. The Law tries to strike a balance between different owners of different parts of a sound recording and ensures certain minimum safeguards of the rights of authors over their creations.
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