Introduction to Copyright and Musical Works
Copyright is an Intellectual property right which creators have over their original literary and artistic work. The Copyright Law in India is largely developed through the British Law. In India, the journey of Copyright Law began in 1847 (Copyright Act of 1847). Later it was replaced by the Copyright Act of 1914 which was a replica of the English law of 1911. Although it was Post -Independence that The ‘Indian’ Copyright Act of 1957 came into force, it still remained a derivation of the 1914 Act and an obvious drawback of such a direct derivation was ambiguity in language as well as interpretation.
Due to such ambiguities in language, copyright in Musical works has always been interpreted in various ways. Under the initial act, only the composer of the song was entitled to a copyright over their musical work, however with the 1994 amendment, the purview of the definition of ‘Musical work’ was broadened to include “work that consists of music as well as any graphical notation but excludes any words or actions intended to be spoken”. The amendment of 1994 made the Act more inclusive as well as beneficial to the Indian Music industry. The Act stated that the author of the copyrightable work is regarded as the first owner of the copyright stemming from the said work in the case of original literary, dramatic, music, and artwork. The Indian Copyright Laws have developed gradually to give separate rights to their due owners ie. the lyricists or the band of musicians etc.
With showcase platforms being accessible easily, Independent Music Artists have become more than ever famous, and they barely wait for opportunities by Music Labels and Production houses to kickstart their careers. However, a parallel reality also subsits wherein the music and the movie industry would be non-existent without the cooperation of each other. Music is vital in movies and sometimes it’s the music album that is loved more than the movie itself. Even in such a situation, it’s not the music composer but the producer or the music label, that benefits, depending on to whom the rights have been assigned.
Legal Rights associated with Song Creation
There exist various bundles of rights in the creation of one song. Taking an example-
If Indian singer Darshan Raval sings a song penned by the lyricist Irshad Kamil and its music has been composed by Pritam Chakraborty for a movie produced by Imtiaz Ali then –
- Darshan Raval, who sang the song is protected under Section 38 of Indian Copyright Act, in the capacity of a performer.
- The lyricist, Irshad Kamil is protected by Section 13 (1)(a) of the Act, since his work falls under the category of an original literary work.
- Pritam Chakraborty as the composer would be protected as the author of the musical work under Section 13 (1)(a).
- Since the song is composed for a film and the services of Pritam Chakraborty as the Composer have been commissioned by the Producer Imtiaz Ali, he would therefore under Section 17 of the Copyright Act be the owner of the song.
Although The Indian Copyright Act grants protection to original artistic, musical and literary works yet it fails to define the word “song”. In the absence of such a definition, the Act renders protection to the different fundamentals that constitute a song –
- Literary rights which are conferred on the lyricist (the author of the song)
- Music in the song is protected as ‘Musical work’ and the composer is its owner
- The Music label or Producer owns the tune and the lyrics together, which is protected as a song recording
- The performing rights and moral rights are conferred upon the singer of the song
Copyright protection of songs is vital. To begin with, it is not only essential to encourage authors, composers, and artists to create original works, but also to create a protective barrier that has legal backing andinfringement of the barrier draws sanctions. In addition to this, Copyright protection awards the authors, composers and artists certain rights as well as monetary benefits. Furthermore, Copyright protects the creators of the original work from being wronged or misled by frauds.
The Copyright law in India has always been ‘Producer centric’. After the 2012 Amendment, the trend was hindered and the amendment gave better ownership control to songwriters, composers and musicians than the producers and record labels. The amendment divulges that the song creators are the owner of the copyright. In addition to this, it has also made royalty payment by broadcasters to these artists mandatory. Furthermore, it specifies that a cover version can be created only after five years from the first recording of the song.
The Rights of Music Composer
The rights granted to a Music Composer as the owner of a copyrighted work are as follows :
- Moral Rights– Section 57 of the Act gives the author some special rights that are independent of whether or not the author has assigned his rights arising out of the copyrightable work.
- Right to Paternity under Section 57 (1)(a) i.e. the author is conferred the right to be credited for his original work or creation. He can claim that the work belongs to him even after he has assigned the related rights in favor of the Producer or the Music Label. An example of this right is the controversy over right of Ratan Kahar for the song ‘Genda Phool by Badshah’, where he was not given due credit.
- Right to Restrain under Section 57 (1)(b) i.e. incase the author’s work is distorted or modified in a derogatory manner so as to affect his honor and reputation, he is conferred the right to claim damages.
- Economic Rights- These rights are enlisted under Section 14 of the Act and includes-
- Right to reproduction under Section 14 (a)(i) ensures that the author has the right to reproduce his work in any material form.
- Right to issue copies under Section 14(a)(ii) i.e the copyright owner is allowed to distribute his work in any manner that gratifies him. He/She also has the right to transfer his/her rights related to the particular work wholly or in part. Distribution of rights to a music label is an example.
- Performance Rights under Section 14(a)(iii) i.e the owner has the right to perform works created by him publicly. The Performances given by singers or composers at Concerts or shows fall under this category.
- Right to make Adaptations and Translation under Section 14(a)(v)&(vi) i.e being the first owner of the musical work, the author is conferred the right to make adaptations or translation of his original work . Hindi songs like ‘Zingaat’ from the movie ‘Dhadak’ and ‘Chikni Chameli’ from the movie ‘Agneepath’, were originally Marathi songs – ‘Zingaat’ and ‘Kombdi Palali’ respectively.
What are Performer’s Rights ?
Section 38 and 38A of the Indian Copyright Act enlists Performer’s rights that are available to the Composer as well as the Singer of the song in the capacity of the Performer. The Act authorizes a performer to:
1. Make sound or visual recording of his performance, which shall comprise:
- Reproduction of such sound recording as well as storing of such recording, in any material form or medium.
- Purvey copies to the public (not being the copies already in circulation).
- Communication of it to the general public.
- Selling these recordings or giving it for sale or on commercial rentals.
2. Communicate the performance to the public besides where the performance is being broadcasted.
Under Section 38A(2) , if the making of any performance is for commercial use, the Performer shall also be entitled to royalties.
Copyright protection granted to a musical work not only protects the efforts of the author as well as other artists, who are involved in the making of a song, from being violated and infringed by unauthorized sources but also confers on such persons the power to resort to legal remedies and prove that the work was created by them in the first place or that they have a particular right in the song, in case of infringement. Any person deriving unjust enrichment from other’s work should not be allowed to do so. The author’s right to receive royalties and benefits should be protected. In case any author’s work is commercially exploited, the author should duly be credited for the same by payment of royalties.
I am a 4th Year B.L.S.LLB student at Adv. Balasaheb Apte College of Law, affiliated to Mumbai University. I’m keenly inclined towards Intellectual property rights and am a Media and Entertainment law enthusiast. I also wish to pursue a career in the same field of law. Apart from work and academics, I am into music and singing.