Copyright in Musical Works in India

Copyright in Musical Works in India: An Analytical Study

Introduction

The domain of copyright law in India, particularly concerning musical works, presents a complex yet fascinating interplay of creative rights, commercial interests, and public access. Music, an integral part of cultural expression and the entertainment industry, necessitates robust legal protection to foster creativity and ensure fair remuneration for creators. The Copyright Act, 1957 (hereinafter "the Act")[1], as amended from time to time, forms the bedrock of intellectual property protection for musical creations in India. As observed by Justice Krishna Iyer and reiterated in Radio Today Broadcasting Ltd. v. Indian Performing Rights Society, "the creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic systems so operate that the priceless divinity which we call artistic or literally creativity in man is exploited."[2] This article endeavors to provide a comprehensive analysis of the legal framework governing copyright in musical works in India, examining the definitions, ownership, rights, infringement, and the evolving jurisprudence shaped by landmark judicial pronouncements and legislative amendments.

Defining "Musical Work" and Copyright Subsistence in India

The Act provides specific definitions for terms crucial to understanding copyright in musical works. Section 2(p) of the Act defines a "musical work" as "any combination of melody and harmony or either of them printed, reduced to writing or otherwise graphically produced or reproduced."[3] This definition was highlighted by the Supreme Court in Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association And Others (1977), where it was noted that "copyrighted music is not the soulful tune, the superb singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to print, writing or graphic form."[4]

A "work" under Section 2(y) includes, inter alia, "a literary, dramatic, musical or artistic work; a cinematograph film; a sound recording."[5] This distinction is important, as a cinematograph film or a sound recording are considered separate classes of works from the underlying musical or literary works (lyrics) they may embody.[6] Copyright subsists in "original literary, dramatic, musical and artistic works" under Section 13(1)(a) of the Act.[7] Furthermore, Section 16 of the Act stipulates that no person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of the Act.[8]

Authorship and First Ownership of Copyright in Musical Works

General Principles: Composer and Lyricist

The "author" in relation to a musical work is defined under Section 2(d)(ii) as the "composer."[9] The author of a literary work (which includes lyrics accompanying a musical work) is the "author of the work" (Section 2(d)(i)).[10] Generally, under Section 17 of the Act, the author of a work is the first owner of the copyright therein.[11] Thus, the composer is the first owner of copyright in the musical score, and the lyricist is the first owner of copyright in the lyrics. The Supreme Court in IPRS v. EIMPA (1977) noted, somewhat critically from an Indian cultural perspective, that under the Act, "the composer alone has copyright in a musical work. The singer has none."[4] However, post the 1994 amendments, performers' rights, including singers, are recognized separately under Section 38, and further strengthened by the 2012 amendments.

Impact of Cinematograph Films: The Producer's Role Pre-2012

The ownership paradigm shifts significantly when musical works are created for incorporation into cinematograph films. Provisos (b) and (c) to Section 17 state that in the absence of an agreement to the contrary, where a musical work is made in the course of the author's employment under a contract of service or apprenticeship, or where it is commissioned for a valuable consideration for a cinematograph film, the employer or the producer of the film, respectively, shall be the first owner of the copyright.[12]

The Supreme Court's decision in Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association And Others (1977)[12] was pivotal in this context. The Court held that when a composer or lyricist creates a work for a film producer under a contract of service or for valuable consideration, the producer becomes the first owner of the copyright in such musical or literary work as incorporated in the film. This effectively meant that "all the rights which subsisted in the composers and their works including the right to perform them in public became the property of the producers of the cinematograph films."[13] This ruling significantly impacted the bargaining power of composers and lyricists, often leading to the assignment of all their rights to film producers for a lump-sum payment, a practice noted in Saregama Ltd. v. The New Digital Media & Ors.[10]

However, Section 13(4) of the Act clarifies that "the copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made."[14] This implies that the underlying works retain their separate copyright, though its exploitation could be contractually limited.

The Copyright (Amendment) Act, 2012: Rebalancing Authors' Rights

The Copyright (Amendment) Act, 2012, brought significant changes aimed at protecting the rights of authors of underlying works, particularly musical and literary works incorporated in films and sound recordings. The Statement of Objects and Reasons for the amendment acknowledged that "independent rights of authors of literary and musical works in cinematograph films are being wrongfully exploited by the producers and music companies by virtue of [the] Supreme Court judgment in Indian Performing Rights Society v. Eastern India Motion Pictures Association."[10]

Key amendments include:

  • Provisos added to Section 18, clarifying that the assignment of copyright in a literary or musical work included in a cinematograph film or sound recording shall not affect the right of the author to claim an equal share of royalties and consideration payable for any utilization of such work in any form other than as part of the cinematograph film or for communication to the public of the film.
  • Section 19(9) and 19(10) were inserted, making it mandatory for assignments of copyright in literary and musical works (for films or sound recordings) to specify royalties payable to the authors, and ensuring that authors (or their legal heirs) have a right to an equal share of royalties from utilization of their works, a right which cannot be waived.[15] As noted in Novex Communication Pvt. Ltd. v. Lemon Tree Hotels Ltd. And Another, these amendments provide "sufficient and additional protection...to the owners/creators of the basic work being literary work, dramatic work, musical work or artistic work."[16]
These changes aim to ensure that composers and lyricists receive ongoing royalties for the exploitation of their works beyond the film itself.

Exclusive Rights of Copyright Holders in Musical Works

Scope of Rights under Section 14

Section 14 of the Act delineates the exclusive rights that constitute copyright. For a musical work (Section 14(a)), these rights include, inter alia:

  • (i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
  • (ii) to issue copies of the work to the public not being copies already in circulation;
  • (iii) to perform the work in public, or communicate it to the public;
  • (iv) to make any cinematograph film or sound recording in respect of the work;
  • (v) to make any translation of the work;
  • (vi) to make any adaptation of the work.
The owner of copyright in a sound recording (Section 14(e)) has the exclusive right, inter alia, "to communicate the sound recording to the public."[1] These rights are, however, "subject to the provisions of this Act."[8]

Performing Rights and Communication to the Public: A Dichotomy

A significant area of contention has been the interplay between the rights of owners of copyright in underlying musical/literary works and the rights of owners of copyright in sound recordings, especially concerning public performance and communication to the public.

In Indian Performing Right Society Ltd. v. Aditya Pandey & Ors. (2012), the Delhi High Court affirmed that the author of a lyric or musical work retains the right of performing it in public for profit otherwise than as part of the cinematograph film.[1] The Court also noted that the owner of copyright in a sound recording has the right to communicate the sound recording to the public under Section 14(e)(iii). The Supreme Court in International Confederation Of Societies Of Authors And Composers (ICSAC) v. Aditya Pandey And Others (2016) clarified that the right of the producer of a sound recording (who is an "author" under Section 2(d)(v)) to communicate his work to the public under Section 14(e)(iii) is not lost, even if it involves communicating the underlying literary and musical works.[15] However, the Court also noted the effect of the 2012 amendment (Section 19(10)) ensuring authors of underlying works (not part of a film) receive an equal share of royalties from such utilization.[15]

The Bombay High Court in Music Broadcast Private Limited v. Indian Performing Right Society Limited (2011) drew a distinction, stating that the owner of a sound recording has an exclusive right to communicate the sound recording, and such communication does not amount to infringement of the underlying works. Conversely, the owners of underlying works retain their bundle of copyrights otherwise than as part of the sound recording.[17] This suggests that for broadcasting a sound recording, while a license from the sound recording owner is necessary, the need for a separate license from authors of underlying works (represented by societies like IPRS) has been a subject of extensive litigation, now largely addressed by the 2012 amendments favoring authors for royalties.

Infringement of Copyright in Musical Works and Permitted Acts

Copyright is infringed under Section 51 if any person, without a license from the copyright owner or in contravention of the conditions of a license, does anything the exclusive right to do which is by the Act conferred upon the owner of the copyright.[8] However, Section 52 of the Act enumerates certain acts which do not constitute an infringement of copyright.

Version Recordings and Statutory Licensing under Section 52(1)(j)

Section 52(1)(j) provides for a statutory license to make "version recordings." As detailed in The Gramophone Company Of India Ltd v. Super Cassette Industries Ltd. (2010), a person can make a sound recording of a literary, dramatic, or musical work if:

  • Sound recordings of that work have been previously made by, or with the license or consent of, the owner of the copyright in the work;
  • The person intending to make the sound recording gives prescribed notice of such intention to the owner of the copyright, and provides copies of all covers and labels with which the sound recordings are to be sold;
  • The person pays royalties to the copyright owner at the rate fixed by the Copyright Board (now the Appellate Board, and subsequently the Commercial Court/High Court).
The Delhi High Court emphasized that strict compliance with these conditions, including those laid down in Rule 21 of the Copyright Rules (now Rule 23-28 of Copyright Rules, 2013), is mandatory.[8] The provision also stipulates that alterations necessary for the adaptation of the work to the sound recording can be made, but not if they are not reasonably necessary or if they would be derogatory to the author's rights (linking to moral rights under Section 57).[8]

Compulsory Licensing for Public Access

Section 31 of the Act provides for compulsory licensing in respect of works withheld from the public. If a copyright owner has refused to allow communication of the work to the public on reasonable terms, any person may apply to the Board for a compulsory license. In Entertainment Network (India) Limited v. Super Cassette Industries Limited (2008), the Supreme Court affirmed the Copyright Board's jurisdiction to grant such licenses, emphasizing a purposive interpretation of Section 31 to prevent monopolistic practices and ensure public access to copyrighted works.[18] The Court stressed that "refusal" should be understood in the context of reasonable licensing terms and that the Board must adhere to principles of natural justice.[18]

Statutory Licensing for Broadcasting

Section 31D, introduced by the 2012 Amendment, provides for statutory licensing for broadcasting organizations. Any broadcasting organization desirous of communicating to the public by way of broadcast or performance of a literary or musical work and sound recording, which has already been published, may do so by giving prior notice and paying royalties to the copyright owners at the rate fixed by the Appellate Board (now Commercial Court/High Court). In Super Cassettes Industries (P) Ltd. v. Music Broadcast Limited (2021), the Delhi High Court dealt with compliance issues under Section 31D and Rule 29 of the Copyright Rules, 2013, underscoring the necessity of adhering to the statutory framework.[19]

The Role of Copyright Societies

Copyright societies play a crucial role in the administration of rights in musical and other works. Section 33 of the Act mandates that copyright business in such works can only be carried on through a registered copyright society.[1] Societies like the Indian Performing Right Society Ltd. (IPRS) for literary and musical works, and Phonographic Performance Ltd. (PPL) for sound recordings, grant licenses, collect royalties, and distribute them to their member authors and owners.[20] Section 34 outlines the administration of rights by these societies, which act as agents for their members.[21] The functioning and authority of these societies, especially regarding tariff schemes and enforcement, have been subjects of numerous legal challenges.[16]

Conclusion

The law of copyright pertaining to musical works in India is a dynamic and evolving field. It seeks to strike a delicate balance between protecting the rights of creators – composers, lyricists, and performers – and ensuring that the public has reasonable access to these works. The Copyright Act, 1957, through its various provisions on authorship, ownership, exclusive rights, licensing, and enforcement, provides a comprehensive framework. Landmark judicial decisions have interpreted these provisions, often shaping the industry practices. The 2012 amendments, in particular, have significantly re-calibrated the rights of authors of underlying works, especially in the context of cinematograph films and sound recordings, aiming for a more equitable distribution of royalties. As technology continues to transform the creation, distribution, and consumption of music, Indian copyright law will undoubtedly face new challenges and require further interpretation and adaptation to remain effective and relevant in safeguarding the multifaceted interests involved in musical works.

References

  1. Indian Performing Right Society Ltd. v. Aditya Pandey & Ors. (2012 SCC ONLINE DEL 2645, Delhi High Court, 2012).
  2. Radio Today Broadcasting Ltd. v. Indian Performing Rights Society (Calcutta High Court, 2006).
  3. Copyright Act, 1957, Section 2(p).
  4. Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association And Others (1977 SCC 2 820, Supreme Court Of India, 1977).
  5. Acedemy of General Education, Manipal and Anr. v. B.Manini Mallya (Supreme Court Of India, 2009), citing Section 2(y).
  6. Eastern India Motion Pictures Association And Others v. Indian Performing Right Society Ltd. And Others (Calcutta High Court, 1974).
  7. Copyright Act, 1957, Section 13(1)(a); See also RDB AND CO. HUF v. HARPERCOLLINS PUBLISHERS INDIA PRIVATE LIMITED (2023 SCC ONLINE DEL 3046, Delhi High Court, 2023).
  8. The Gramophone Company Of India Ltd v. Super Cassette Industries Ltd. (2010 PTC 44 541, Delhi High Court, 2010).
  9. Copyright Act, 1957, Section 2(d)(ii); See also National Federation Of Indian Women Tamil Nadu Council v. Govt. Of T.N. (Madras High Court, 2008).
  10. Saregama Ltd. v. The New Digital Media & Ors. (Calcutta High Court, 2017).
  11. Copyright Act, 1957, Section 17; See also Eastern Book Co. v. Navin J. Desai (2001 SCC ONLINE DEL 45, Delhi High Court, 2001).
  12. Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association And Others (1977 SCC 2 820, Supreme Court Of India, 1977) [Summary provided as Ref 5].
  13. Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association And Others (1977 SCC 2 820, Supreme Court Of India, 1977) [Details provided as Ref 15].
  14. Copyright Act, 1957, Section 13(4); See also RDB AND CO. HUF v. HARPERCOLLINS PUBLISHERS INDIA PRIVATE LIMITED (2023 SCC ONLINE DEL 3046, Delhi High Court, 2023).
  15. International Confederation Of Societies Of Authors And Composers (Icsac) v. Aditya Pandey And Others (Supreme Court Of India, 2016).
  16. Novex Communication Pvt. Ltd. v. Lemon Tree Hotels Ltd. And Another (Delhi High Court, 2019).
  17. Music Broadcast Private Limited v. Indian Performing Right Society Limited (2011 SCC ONLINE BOM 953, Bombay High Court, 2011).
  18. Entertainment Network (India) Limited v. Super Cassette Industries Limited (2008 SCC 13 30, Supreme Court Of India, 2008).
  19. Super Cassettes Industries (P) Ltd. v. Music Broadcast Limited (Delhi High Court, 2021).
  20. Phonographic Performance Limited v. State Of Punjab Through Secretary, Department Of Home Affairs & Justice, Civil Secretariat And Ors. (2011 RCR CRIMINAL 4 776, Punjab & Haryana High Court, 2011).
  21. Anand Bhushan & Ors. Petitioners v. Union Of India (Delhi High Court, 2018).