COPYRIGHT IN MUSIC BUSINESS DEFINITION: [SECTION 2(p)]:
The Definition of Musical work is given under section 2 (p) of the copyright act, 1957 which states “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music.
WHO IS THE AUTHOR OF THE MUSICAL WORK?
As per section 2(d)(ii) of the Copyright Act, 1957, the author in relation to the musical work is a “Composer”.
Whereas according to section 2 (ffa) “Composer”, in relation to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation. An application for Musical Work may also be filed by joint authors/composers.
Section 2(z) defines “work of joint authorship” as a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors;
DURATION OF COPYRIGHT IN MUSICAL WORKS (SECTION 22):
Duration of copyright protection for musical work published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.
In case of joint authorship work, the term shall be counted at or immediately before the date of the death of the author who dies last
Section 2(a) (iv) defines “adaptation”.
“Adaptation” means, “in relation to a musical work, any arrangement or transcription of the work; ”
Hence, according to section 2 (a) (iv) ‘Adaptation’ in relation to musical works means ‘any arrangement or transcription of the work’. Copyright subsists in arranging music by adding accompaniments, new harmonies, a new rhythm and the like, and transcribing it for different musical forces.
ARRANGEMENT OR TRANSCRIPTION EXPLAINED:
Arrangement: It refers to a musical work that resulted from the rearrangement of an existing musical work.
Transcription: In relation to music it may be defined as an arrangement of a musical composition for some instrument or voice other than the original. For instance Franz Liszt, a prolific 19th-century Hungarian composer, was the greatest arranger in the history of music. About half of his more than 800 known piano compositions are arrangements of his own or other composers’ music.
Schubert song transcriptions, Beethoven symphony transcriptions, and paraphrases of operas by Mozart, Bellini, Donizetti, and Verdi poured from his pen. Had ld. Mr. Franz has been alive in the present time, his arrangements could easily become the subject matter of Copyright.
In a similar manner, the best-suited example of adaptation in today’s time is remixing of musical compositions, which involves alteration of original musical composition by adding, removing, and/or changing the arrangement of such composition.
DIFFERENCE BETWEEN MUSICAL WORK & SOUND RECORDING:
Differentiating between Musical Works and Sound Recording Works is sometimes difficult to recognize by many applicants.
When a lyricist, composer, or songwriter creates a musical work, consisting of the melody and or lyrics, this is referred to as the musical composition. When this composition is performed, recorded, mixed, and mastered, the resulting creation is referred to as the “master” or sound recording.
As observed by the Hon’ble Supreme Court in Indian Performing Rights Society v. Eastern Indian Motion Pictures Association [AIR1977 SC 1443] “In a musical work “Copyright is not the soulful tune, the super singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced to printing, writing, or graphic form”.
Sound Recording has been defined under Section 2(xx) as 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.
A Sound Recording Copyright may be claimed in the aggregate of sound embodied in any tangible medium, including phonograph discs, open-reel tapes, cartridges, cassettes, player piano rolls, and other material of objects in which sound are fixed and can be communicated either directly or with the aid of machine or device. (Nimmer on Copyrights, 2010) When a graphical notation of a musical work is recorded in any medium from which sound may be produced, it amounts to Sound Recording.
The author of a sound recording work is the Producer of the sound recording, as opposed to Composer being the author of Musical Work.
Producer’ has been defined under Section 2(uu) as in relation to a cinematograph film or sound recording means a person who takes the work the initiative and responsibility for making. For example: When a composer develops a melody that is represented as a piece of sheet music (which may include Western, Swaras, or any other form of graphical musical notation) it will be registered under the Music category.
However, when the same melody is recorded in CD, Flash Drives, or any other medium of recording in which sound is fixed and can be communicated either directly or with the aid of a machine or device, the said recording will become registrable under the Sound Recording category.
COPYRIGHT ACT AMENDMENT, 2012
The Copyright Amendment Act, 2012 brought in a phenomenal change with respect to the rights of music directors, lyricists, and performers. Javed Akhtar’s maiden speech in Rajya Sabha for Amendment to Copyright Bill 2010 made a very persuasive speech and was instrumental in lobbying for the amendments. Section 31C of the Copyright Amendment Act, 2012 deals with statutory licenses that can be obtained for making a sound recording in respect of any literal, dramatic, or musical work. “Cover version” means a sound recording made in accordance with the above-mentioned section. There can be two forms of licenses that legalize this action i.e. Statutory licenses and General licenses. While a statutory license is governed by the provisions of this Act, a general license is made on the terms and conditions as agreed upon between the licensor and licensee.
However, section 51 of Copyright Act 1957 (Amendments 2012) states that if any person, without obtaining a license from the owner or the registrar of the copyright,
performs an act that violates the right conferred upon the owner of the copyright, it shall be considered as an infringement.
A major concern with “remixes” is the extent of original contribution in the adaptation of older work and this often becomes challenging for courts to determine the nature of infringement in such work. Therefore, a major concern over creating a remix has been how to protect the rights of the author of the remixed work and at the same time safeguard the rights of the author of the original works (or source materials), both morally and economically.
Another significant issue revolving around the remixing of work includes the “moral rights” of an author which are enshrined under section 57 of the Copyright Act. According to this section, “even after the assignment or the transfer of the copyright the author shall have the right to claim the authorship of the work and as well as he can restrain or claim the damages for any distortion, mutilation, modification or any other derogatory act if such act is hampering the honor and reputation of the author, before the expiration of the term of copyright”. Therefore, in determining the infringing nature of a remixed creation, the test of “substantial similarity” is applied. A remix is considered an infringement if the average audience is likely to associate the remixed song with the original recording. For an author of adapted content to escape legal penalties, it is inevitable that prior consent is obtained from the original author of the copyrighted work, and requisite credit is accorded to the pioneer creator.
The Indian Copyright Act gives exclusive rights to the original author of work through section 14 including the right to develop it further, the right to make translations, the right of reproduction, the right of publication, communication to the public, etc.
The Copyright Act also protects the adaptation of a musical work, which means that it protects any arrangement or transcription to a musical work. The ownership of the copyright in a given song or piece of music involves several aspects. 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. An owner of a sound recording is accorded certain rights through section 14(e) of the Copyright Act. These include the right to make any other sound recording embodying it, the right to sell or give on hire, or offer for sale or hire, any copy of the sound recording (whether the same had been sold or hired in the past), and the right to communicate the sound recording to the public at large.
Contributed by Shreya Marwah (A Member of the Legal Experts Team at Let’s Learn Law)[/vc_column_text][/vc_column][/vc_row]