The Indian music industry is always seen as a vibrant rainbow of various genres, languages, and traditions. It has even played an influential role in shaping the cultural fabric of our nation. In the last few decades, it is experiencing a dramatic evolution by shifting from physical records to digital platforms. This action has drastically grown its reach all around the globe. However, this transition also has brought some complex issues associated with copyright protection.
In such situations, Copyright laws act as a solid backbone for this creative music industry, protecting the rights of all artists, composers, and record labels. These laws also nourish the economic credibility of the industry.
Yet, the complications related to copyright laws are rapidly transforming the digital landscape, often directing the way to violations and disputes. Let’s take a detailed look into the complexity of copyright protection in the Indian music industry and what lies ahead.
What is Copyright Protection?
Copyright protection is the list of exclusive rights which are given to the creator of an original work. These rights are solely granted by the law of any specific country and give the creator power to distribute, reproduce, display, perform or license his or her work.
Why is Copyright Important in the Music Industry?
Establishing the ownership of work done under copyright law can many times pose difficulties, and this is exceptionally true for the music industry. The boundary which separates similar works is getting blurred and completely undefined in this sector.
The vast amount of music-related content available online makes the task of recognizing rightful ownership highly complex. There is a high possibility of situations where unintentional use of some parts of formerly created work can happen. On top of that, we are presently in a period that is often referred to as "the remix era."
Remaking songs is a common practice nowadays that is undeniably present at its peak now and is continuously rising. The Copyright Act does have some clauses for cover songs, but whether these rules apply to remixes or not remains uncertain.
In the end, companies generate immense profits from the release of these songs or by incorporating them into movies while usually leaving the artists uncompensated.
A precise instance of such artist exploitation can be seen in a very famous song named 'Masakali 2.0'. The original 'Masakali' was a joint creation by our great composer A.R. Rahman and lyricist, Mr. Prashoon Joshi, with a very famous record company, T-Series.
Now the case was T-Series launched the second version of the song 'Masakali' without taking any consent from its original creators. This example shows us how the rights of record companies are under scrutiny.
'Masakali 2.0' totally undermines the core principles of Copyright laws, i.e., the preservation of originality. In this case, almost every right given to the original creator, like Section 13(1)(a), Section 38, Section 17, etc., got violated.
Registration Process for Copyright Protection
The whole procedure for copyright registration is precisely detailed in the Copyright Rules. To register your work as a copyright, one must fill out Form XIV and submit it with the required fee straight to the Registrar of Copyrights (“Registrar”). This form ought to be signed by the applicant.
If the copyright owner is filling out the application, then a No Objection Certificate (NOC) from any other authors who were involved in the song's creation—such as the composer, lyricist, or producer—needs to accompany the application. This can be either mailed to the Registrar or submitted online through the Indian Government's copyright website.
The applicant is mandated to notify all people who claim an interest in the copyright subject matter. If the Registrar affirms the accuracy of the application's details and gets no objections within thirty days of the application's filing, then they will proceed to record the copyright in their register.
However, if the Registrar challenges the accuracy of the application's information, an inquiry can be conducted. Based on the results of this inquiry and after providing the applicant with a chance to be heard, the Registrar can decide to accept or reject the application.
In situations where the Registrar receives objections to the application, all parties concerned are given an equal opportunity to raise their case. Following the inquiry and the hearing of all parties, the Registrar proceeds to record the details in their register.
The registration process is considered complete only when the Registrar signs the copy of the copyright entry in their register.
Who are the Authorized Persons of a Song?
A song isn't viewed as a single entity under the Copyright Act; instead, it is split into various components, each of which can be easily copyrighted by its respective creator. In case only one person is writing, composing, and singing a song, he can claim the copyright over the entire song.
With this understanding, now let’s see the rights of contributors to a song:
Lyricist: According to Section 2(d)(i) of the Act, the author of any literary work is the person who has written it. In the context of songs, this would be a lyricist. Since the song lyrics are a literary work under the Act, the lyricist has full right to secure copyright for himself as the author.
Composer: Section 2(d)(ii) of the Act specifies the composer as the author of a musical work. Musical work, as clarified by Section 2(p) of the Act, is the work consisting of music, including any sort of graphical notations but excluding words or actions planned to be sung, spoken, or performed with the music.
Therefore, the composer who creates music for the song can obtain a copyright for the song's background music.
Singer: The Act's Section 2(qq) defines a performer as the singer of the song. The singer holds all rights related to their performance. They have the power to record their performance, reproduce it as per wish, issue copies of it on any electronic medium, and sell the copies.
They also have the right to protect their copies or recording against violation. However, these performers' rights do not touch upon the rights of the song's author, i.e., the lyricist and composer.
Producer: According to Section 2(d)(v) of the Act, the person who is responsible for the sound recording is believed to be the author of that particular recording. Section 2(uu) defines the producer of a sound recording as an individual who takes the initiative and accountability for making it.
Given that the producer supervises the recording of the song and its distribution in any kind of movie or album, they are the author of the song's recording. Hence, they, too, secure the copyright for the song.
What Rights Do Song Owners Have?
Here are some of the main rights that any song owner holds over his/her creations:
1. Economic Rights
These rights, which are detailed in Section 14 of the Act, apply to all authors of copyrightable work and include:
Right to Reproduction (14 a(i)): This right is retained by the original author of any musical, literary, or artistic kind of work, allowing them full power to reproduce their work in any tangible form. For instance, copying a song on Disc or releasing it on some sort of platform like YouTube. This approach is considered reproduction.
Right to Issue Copies (14 a(ii)): This right can be viewed as an extension of the right to reproduce. It endows the copyright holder authority to distribute his music or other literary work in any method they choose. They can even transfer their copyright-related rights partially or wholly. For example, distribution rights can be given to a music label.
The composer of a song can publish copies for public viewing, provided that these copies do not already exist in the public domain.
Performance Rights (14 an (iii)): This right permits the copyright holder to publicly perform all created works. For example, a lyricist has the full right to repeat the lyrics of a song they previously wrote at any public event.
Right to Make Adaptations and Translations (14 a(v)&(vi)): As the original owner of the musical work, the author is given the right to adapt or translate their work. A beautiful example of this is the song 'Zingaat,' initially in Marathi but further got translated into Hindi.
2. Moral Rights
Section 57 of the Copyright Act blesses authors with certain unique rights that are present independently of whether the author has shared their copyright-related rights or not, as was established in the Ilayaraja case. These include:
Right to Paternity (57 1(a)): The Act enables the author to claim their authorship over their work. In simple words, even after transferring their work-associated rights to a producer or music label, they can retain the right to be identified as the work's originator.
Right to Restrain (57 1(b)): If the author's work is mutilated, distorted, or altered in such a way that it harms the author's honor or reputation, then the author has the whole right to seek damages.
3. Performers Rights
These rights, described under Section 38 of the Copyright Act, apply to the singer of a song for their ability as a performer. The Act allows a performer to:
a. Make a sound or visual recording of the performance, this includes:
- Reproducing it in any sort of physical form, including reserving it in any medium.
- Releasing copies to masses that are not already in circulation.
- Communicating it to the public.
- Selling it, proposing it for commercial rental, or placing it up for sale.
b. Broadcasting or communicating their performance to the public before the performance has already been broadcast.
Laws Regarding Copyright Protection in the Music Industry
The Indian Copyright Act of 1957 governs the laws which are related to copyright in India. It was amended in 1983, 1984, 1992, 1994, 1999, and 2012 to adjust to changes in technology and other international developments.
Regarding music, the Indian Copyright Act supports protection for original musical works and all associated rights for performers and producers. Here's a brief overview of some specific sections applicable to the music industry:
Indian Copyright Act of 1957
- Section 13: This section represents what can be copyrighted. It includes literary, dramatic, original, musical, and artistic works. It even includes cinematograph films and sound recordings.
- Section 14: This section clarifies the meaning of copyright to reproduce work, issue any copy, work performing rules in public, practices for making any cinematograph film or sound recording with regards to the work, etc.
Section 51 of The Copyright Act: This is a critical section related to the music industry as it is responsible for dealing with copyright infringement. According to this section, copyright in a work is considered to be disobeyed when a person uses the work without taking permission from the owner of the copyright or violates the owner's exclusive rights. This includes the unauthorized sale, distribution of copies, or hire of the copyrighted work.
Note: The 2012 amendments to the Indian Copyright Act also presented important changes to the benefit of music composers and lyricists. Under the amended law, music composers and lyricists have all right to receive royalties for the commercial exploitation of their work straight from the music user.
This provision is used to help creators continue benefiting from the success of their music work over time.
Anyone who's dealing with music (or other copyrighted works) in India needs to be familiar with the full text of the Indian Copyright Act and its successive amendments, and may also need to confer with a legal professional to make sure they're in full compliance with the law.
The above-explained brief is a general overview, and copyright law can be more complex and case-specific.
Penalties for Infringement in Case of Music
It's worth mentioning that the minimum penalty for any copyright infringement is six-month imprisonment along with the lowest fine of Rs. 50,000/-. Furthermore, in cases of a second or subsequent conviction, this minimum penalty rises to one-year imprisonment with a fine of Rs. 1 lakh.
What is Trademark in Music?
With the growing understanding of intellectual property rights, creators now find more efficient ways to monetize their work. Registering a trademark for a song title or musician's name has become very common.
In India, the song "Why this Kolaveri Di," which earned immense popularity overnight in 2011, was the very first song to be registered as a trademark. This viral sensation very quickly became the most explored video in India and made even waves across Asia.
The song was recorded under Sony Music Entertainment India, which applied for the song trademark. This registration instantly allowed Sony Entertainment to monetize the song through different mediums, including compact discs, cassettes, and SD cards.
Penalties Related to Trademark Infringement
The criminal remedies available for trademark infringement are:
- Imprisonment for a period which is not less than six months, and extendable up to three years.
- A fine not any less than ₹50,000, plus, extendable up to ₹2 lakhs.