Ipr Final Draft.docx

MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

FINAL DRAFT

INTELLECTUAL PROPERTY RIGHTS

TOPIC: COPYRIGHT PROBLEM AND DISPUTES IN MUSIC

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Table of Contents

Introduction

3

Copyrights in Music: An Analysis

5

Copyrighted Music in Films

7

Reforms needed in the current copyright Regime

9

Conclusion

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Bibliography

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INTRODUCTION

Music is the line that connects all the dots. Individuals of different cultural background perform together and music is heard by people no matter the language or any other cultural barrier. Pandit Ravi Shankar, the great Indian Sitar maestro performed with the legendary band The Beatles. George Harrison, the lead guitarist of the band was a student of the Pandit and the Pandit was a major inspiration for the music composed by the band. In recent times, music copyrights and their ownership/rights to producers, artists, among other stakeholders, have been under strong discussion across geographies. There are several types of licence that filmmakers need to acquire in order to use a pre-recorded piece of music in films.1 First of all, the right to use a song differs from the right to use a specific recording of the song. This is particularly key for cover versions, where the rights to the song might not belong to the band who specifically recorded the version. Alternatively, some rights are likely to belong to the record company, with others being retained by the songwriters or performers. The rights to use of the underlying composition, and the specific recording or "master recording", may very well belong to different people, all of whom have rights which they can enforce. The ownership of copyright in a given song or piece of music involves several aspects. A simple song for instance has three parts and the rights may or may not be with the same person; 2 for instance 

The lyrics of the song can be protected as literary work and the owner of the copyright is the lyricist.



The music of the song can be protected as a musical work and the owner of the copyright is the composer

Martina, Music Copyright in India, Legal Service India, http://www.legalserviceindia.com/copyright/music-

1

copyright-in-India.htm. 2

Manuel, Peter. Cassette culture: Popular music and technology in North India. University of Chicago Press, 1993.

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

The song together with music and lyrics which is recorded can be protected as a sound recording and the owner of the copyright is the producer of the sound recording (the record label).

Once filmmakers have discovered who owns the rights, there are three types of permissions they typically need to obtain:3 the right to record and distribute copies of the song, to record the music in synchronisation with the moving pictures in the film, and thirdly to perform the song publically as part of the performance of the film. It's complicated, and convoluted, and for popular songs it can be eye-wateringly expensive. In the case of Guardians of the Galaxy 4 , where the screenwriters deliberately wrote the music into the film as a plot point, it's a bold and ostentatious move, signifying their vast budgets, and even more vast bargaining power.

3

http://copyright.gov.in/.

4

Editorial Staff, Copyright and Music – Licences in India, Selvams, https://selvams.com/blog/copyright-and-musiclicenses-in-india-2/.

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COPYRIGHTS IN MUSIC: AN ANALYSIS

Section 31C of the Copyright Act5 provides for licensing in case of cover songs. Subsection (2) provides that a licence needs to be obtained in order to publish covers of a song. Prior permission of the original artist needs to be taken and the royalty needs to be either agreed upon or given as per the rates fixed by the appellate board. The person making such sound recordings can not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings.6 Section 31D provides for statutory licences for broadcasting of literary and musical works and sound recording. Again, as per subsection (2) The broadcasting organisation needs to give prior notice of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board. Now, the rate of royalties for different kinds of broadcasts in this case is different, i.e. different for a radio broadcast and for a television broadcast. As per subsection (5) The names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast. Further, when such musical work is thereby published, no fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, is allowed without the consent of the artist who owns the rights.

5

The Copyright Act (No. 14 of 1957).

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ibid

5

As per S 38, the performer’s right subsists until fifty years from the beginning of the calendar year next following the year in which the performance is made. The further amendment in the form of 38A provides the exclusive right of performers to make a sound recording or a visual recording of the performance, to issue copies of it to the public not being copies already in circulation, selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording and to broadcast or communicate the performance to the public except where the performance is already broadcast. Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film. In India we have the Phonographic Performance Limited (PPL) which handles the copyright of sound recordings and Indian Performing Rights Society (IPRS) who handles the rights for lyricists and composers. Ideally, if a song is to be played in a restaurant, hospital, petrol bunk or in a bar or pub or any commercial establishment or public place or for a non-private use, A license from PPL would be needed.7 A license from the IPRS is needed if one wishes to have someone perform the song at a place instead of playing a recording. However even in sound recordings the underlying rights of the lyricists and composers still exist and so one may end up having to get licenses from both PPL and IPRS for any recording that one plays.8 In a landmark Delhi High Court case on August 12 2016, Justice S Muralidhar ruled that a South Delhi restaurant had violated the “inalienable Right to Receive Royalty” of performers by playing their songs “without obtaining Rights Clearance Certificate”, and asked the “defendant to render to the plaintiff the accounts of all the monies earned by it from the performance of the repertoire… of the performers”. 9 This marks a precedent for the protection of the economic rights of musicians where their works are being played in places without their permission.

7

Supra note 4. Ibid 9 The Indian Singers’ Rights Assosiation Plaintiff v. Chapter 25 Bar and Restaurant CS (OS) 2068/2015 8

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COPYRIGHTED MUSIC IN FILMS

Section 31D provides for statutory licences for broadcasting of literary and musical works and sound recording. Again, as per subsection (2) The broadcasting organisation needs to give prior notice of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.10 Now, the rate of royalties for different kinds of broadcasts in this case is different, i.e. different for a radio broadcast and for a television broadcast. As per subsection (5) The names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast.11 Further, when such musical work is thereby published, no fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, is allowed without the consent of the artist who owns the rights. To simplify, if what one uses does not lie in the public domain i.e. it’s copyright has not expired, one needs to obtain a license from the owner of the copyright to use the music in a film. Many recordings have not only a copyright for the song, but also for the recording of the song itself. Two licenses would be required in such a case. Music that is Royalty Free is very popular in use among film makers, as they can legally use it without paying royalty, but an important difference is to be noted: it may be free to use, but it is not in the public domain. There is a distinct difference between the two. Permission must still be granted for royalty free recordings.

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Generally, these permissions are usually blanket

10

Supra note 5. Ibid. 12 Manuel, Peter. Cassette culture: Popular music and technology in North India. University of Chicago Press, 1993 11

pp 322.

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permissions that apply to anyone though and are very easy to obtain. Things like this would include music from the now widely used site incompetech.com, run by Kevin MacLeod.13 When it comes to music use in film and other applications, copyright may get tricky. In many cases, the copyright is split between the record label and the publisher. The label controls the recording, while the publisher controls the song itself (the words and melody that appear in the recording of the song). Thus, to use a commercial song in a film, two licenses must be obtained per track involved – the synchronization license to use the song and the master license to use the recording of that song.14 Synchronization licenses are administered by the publisher. The publishers may vary from large companies to individual songwriters who publish their own work. The master license can be obtained from the recording label or, in case of independent artists, the artist directly.

13

Andy Smith, Using Copyrighted Music in Videos: When is it Legal, Tubular Insights, http://tubularinsights.com/copyrighted-music-in-video/. 14 Hannah, How to Legally Use Copyrighted Music in Your Marketing Video, https://www.miksmusic.com/how-tolegally-use-copyrighted-background-music-in-video/.

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REFORMS NEEDED IN THE CURRENT COPYRIGHT REGIME

Piracy can be argued as a consequence of technological innovation and the need to protect those from their unauthorized reproduction remains an important objective for copyright owners. Recently, the director of World Intellectual Property Organisation observed, “copyright must be developed to meet the development of new technologies otherwise it will become irrelevant on the theory and practice. The central issue is how to maintain a balance between availability of cultural works at affordable prices while assuring a dignified economic existence for creators and performers”15. An important aspect to be considered is statutory provisions concerning amount of compensation to be determined for infringement claims. Though owners of the musical works have civil and criminal remedies available to them in the event of violation, the damages recovered through courts is uncertain.16 It is the court’s discretion to assess the quantum of compensation based on the circumstances of each and every case. There exist no statutory damages provided under the legislation. As for criminal sanctions to the infringers, it is good that the government has constituted special copyright enforcement units in almost majority states in India, but the enforcement mechanism in the country is weak. The Government has also set up a statutory body, ‘The Copyright Enforcement Advisory Council’ for the purpose of boosting the enforcement but is inactive in performance.17 Punishments imposed for infringers are quiet strict but the only problem is that it lacks enforcement. Laws can do little justice unless properly implemented. This includes police personnel, who can play a major role in combating piracy, are not fully aware of various provisions of the law. There is also a lack of adequate number of personnel who can fully devote to copyright crimes alone. The police are more concerned with usual law and order problems and

15

Palanissamy, The Future of Copyright in India, International Conference on Software and Computer Applications, vol 9 (2011). 16 Marshall, Lee. Bootlegging: romanticism and copyright in the music industry. Sage, 2005, pp 211. 17 Ibid.

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copyright related crimes are attached least priority. The awareness level among end-users is also very low. 18 Further problems lie with the performers’ rights in India. The economic rights of performers in their performances are protected in India only until the performance is fixed. Once it is fixed, the performer has no right in the performance independent of the owner of the copyright in the fixed performance. In respect of copyrights one major problem is the dearth of litigation, which is due to most people with such disputes choosing to settle out of court. Because of this dearth, the lacunas lie unfilled.

18

Supra note 15.

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CONCLUSION

As we have seen, the rights of musicians with respect to intellectual property and copyright in India are taken very seriously and have backing from the statutes in the form of the Copyright Act 1957 and case laws that have further strengthened the base of these rights. The relatively well defined areas under the act through the 2012 amendment and the very nature of copyrights and assignment of copyrights through contracts makes the set of rights very malleable and customizable as per the needs and wants of the owners of the musical works. However there are still certain lacunae and inefficiencies that have yet to be addressed. Punishments imposed for infringers are quiet strict but the only problem is that it lacks enforcement. Laws can do little justice unless properly implemented. This includes police personnel, who can play a major role in combating piracy, are not fully aware of various provisions of the law. There is also a lack of adequate number of personnel who can fully devote to copyright crimes alone. The police are more concerned with usual law and order problems and copyright related crimes are attached least priority. The awareness level among end-users is also very low. Further the fact that exist no statutory damages provided under the legislation means that it is the court’s discretion to assess the quantum of compensation based on the circumstances of each and every case. This makes uniform justice difficult for copyright infringement cases.

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BIBLIOGRAPHY

JOURNALS Barrowclough, Diana, and ZeljkaKozul-Wright, eds. Creative industries and developing countries: voice, choice and economic growth. Taylor & Francis, 2008. Laing, Dave. "Copyright, politics and the international music industry." Music and Copyright 2 (2004): 70-85. Marshall, Lee. Bootlegging: romanticism and copyright in the music industry. Sage, 2005. Manuel, Peter. Cassette culture: Popular music and technology in North India. University of Chicago Press, 1993. Palanissamy, The Future of Copyright in India, International Conference on Software and Computer Applications, vol 9 (2011).

WEB SOURCES http://copyright.gov.in/ Sindhu, Pay the Music – Face the Music: What the Copyright Act Says, Indian Express, http://indianexpress.com/article/explained/play-the-music-face-the-music-what-the-copyrightact-says-3074420/ Martina,

Music

Copyright

in

India,

Legal

Service

India,

http://www.legalserviceindia.com/copyright/music-copyright-in-India.htm. Andy Smith, Using Copyrighted Music in Videos: When is it Legal, Tubular Insights, http://tubularinsights.com/copyrighted-music-in-video/.

Editorial

Staff,

Copyright

and

Music

–

Licences

in

India,

Selvams,

https://selvams.com/blog/copyright-and-music-licenses-in-india-2/. 12

Hannah,

How

to

Legally

Use

Copyrighted

Music

in

Your

Marketing

Video,

https://www.miksmusic.com/how-to-legally-use-copyrighted-background-music-in-video/.

STATUTES The Copyright Act (No. 14 of 1957).

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