Music Makes Money - Copyright In The Music Industry
Author: LawSphereX
Category: Intellectual Property
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MUSIC MAKES MONEY: COPYRIGHT IN THE MUSIC
INDUSTRY
Harshita Nahar, BA LLB, KIIT School of Law, Bhubaneswar
ABSTRACT
The Indian Copyright Act of 1957 serves as the melody for protecting creativity in the music industry. Since “copyright” is an amalgamation made up of the words “copy” and “right,” it can also be used to describe the legal and exclusive rights of the person or organization that is the owner of creative intellectual property (IP). It safeguards original musical works, including compositions, lyrics, and even sound recordings. Copyright vests with the creators – composers, lyricists, and producers – automatically upon creation, without formal registration (though registration strengthens legal claims). This copyright grants exclusive rights. Creators control the reproduction, distribution, performance, and adaptation of their music. India’s music business is a thriving, multifaceted sector that is firmly anchored in the nation’s rich cultural legacy and modern artistic manifestations.
The production, distribution, and consumption of music are all being revolutionized by digital technology, and copyright law is playing a more and bigger role in defending the rights of all parties involved. This paper provides an overview of the copyright landscape in the Indian music industry, examining key challenges and developments. The paper begins with the meaning of copyright and the treaties that laid the foundation for intellectual property rights. Further, it delves into the relevant sections of the Copyright Act, of 1957, and analyzes the need for copyright protection in the music industry, its impact, and the road ahead. Technology breakthroughs and creators’ rights have coexisted peacefully to create opportunities and challenges. Today’s technology allows hundreds of people to access and use songs uploaded online.
As a result, such music is more inclined to be exploited and infringe upon the rights of their legitimate owners. Keywords: copyright, musical work, reproduction, technology RESEARCH QUESTION To what extent is the legality of a music creator using another’s work as inspiration without attribution, and the extent to which mere resemblance in a song constitutes copyright infringement?
INTRODUCTION
Copyright is an ensemble of rights that includes the freedom to reproduce, communicate with the public, adapt, and translate the work. It is created right away after the work is created. Reproducing ideas is not the focus; rather, it is about reproducing how ideas are expressed. To ensure copyright protection, the author’s work must have been sufficiently judged, skillfully executed, and laboriously produced. Sound and artistic creations are safeguarded by copyright for the life of the copyright owner and for an additional sixty years after the owner’s death. According to Section 13 of the Copyright Act, of 1957 works in which copyright subsists are: (a) original literary, dramatic, musical, and artistic works; (b) cinematograph films; and (c) sound recording. As previously mentioned, original musical works are protected by copyright.
By definition under Section 2 (p) of the Copyright Act, of 1957, the term refers to a composition that consists solely of music and comprises any accompanying graphical notation but excludes any words or actions that must be sung, spoken, or performed in conjunction with the music. Under this definition, a musical work that is reduced to any physical form will be protected by copyright. The most significant international treaty that protects both original and derivative works is the Berne Convention, which establishes minimum requirements for copyright protection in nations that are signatories to the agreement. According to the Berne Convention, member nations must safeguard literary and creative works, including musical compositions, from infringement and acknowledge other members’ copyrights as if they were owned by them.
This implies that all nations that have ratified the Berne Convention, including the United States, will grant copyright protection to any song composed by a citizen of the United States. A global agreement known as Trade-Related Aspects of Intellectual Property Rights (TRIPS) establishes basic requirements for safeguarding of intellectual property for World Trade Organization (WTO) members. Under TRIPS, member nations must preserve intellectual property rights for a variety of works, including music, and acknowledge other nations’ copyrights. 1 In the current digital era, it can become nearly impossible to figure out who owns what in the music industry. It is impossible to create a completely original and distinctive song these days devoid using some parts from other artists’ work, given the abundance of music available online.
The music industry is now facing difficulties as a result of this. As the entire cosmos can be viewed as a remix, generated by merging various pieces, current copyright laws are unduly restrictive for contemporary musicians. The composer is the one who creates any musical piece. Similar to musical works, sound recordings of speech and songs performed by anyone, with or without music, such as podcasts or audio files, are protected by copyright. Even the smallest aspect of a song that seems similar to something else could be construed as plagiarism, and the concern of violating copyrights influences songwriting and stifles creativity in the music business. Although the intended purpose of copyright laws was to encourage artists to create new works of art, it appears that the regulations are restricting the freedom of expression of artists.
2 While some experts have proposed using science or mathematics to determine if a piece of music has been used unlawfully or not, those methods are only useful for figuring out whether two songs that seem different from one another are rather similar to one another. Although the approach may be effective in identifying similarities, it is unable to address the subjective issues of whether a song’s “feel” or style may be imitated, or to what extent a resemblance qualifies as a copyright violation. For example, even if a song has been acknowledged to have been influenced by another artist, it retains the individual touch of the new artist who contributed to it and made it into something completely different. The issue is determining whether the new creation has sufficiently violated the old one to warrant legal action.
3 Song copyright protection is crucial for motivating writers, authors, and artists to produce original works, for which they are compensated with rights, earnings, and recognition. By establishing a protected barrier and providing legal backing and punishments for breaching it, copyright protection keeps fraudsters from deceiving the original work’s authors. 1 Copyright in Musical Work Internationally, https://aishwaryasandeep. in/copyright-in-musical-workinternationally/#:~:text=The%20Berne%20Convention%20requires%20member,if%20they%20were%20their% 20own (Apr. 22, 2024). 2 Copyright Protection in the Indian Music Industry, https://restthecase. com/knowledge-bank/copyrightprotection-in-the-indian-music-industry (Apr. 22, 2024).
3 Copyright Laws in the Music Industry by Elise M. Erhart,
https://ecommons.udayton.edu/cgi/viewcontent.cgi?article=1083&context=lxl (Apr. 22, 2024).
Laws regarding the Musical works A song is not considered to be one cohesive work. A piece of music can be distinguished from other works created by distinct artists. A song has been separated into sections by the Copyright Act. Every member of the song has the right to claim ownership of their respective portions. One person can get overall control over the entire song if he performs every section of it. The Indian rules of copyright are governed by the Indian Copyright Act of 1957. The Indian Copyright Act upholds the preservation of creative musical compositions as well as other related rights for creators and performers. An overview of the key provisions of the Indian Copyright Act of 1957 that are relevant to the music business is as follows: Section 13: What is protected by copyright is demonstrated in this section.
It consists of creative, musical, theatrical, literary, and artistic works. Sound recordings and cinematograph films are also included. Section 14: It defines what it means to replicate a work, distribute copies of it, have it performed in public, create a cinematograph film or sound recording of it, and more. Section 51: Given that it handles copyright infringement, this part of the music industry is extremely important. This provision states that using a work without the owner’s consent or in a way that infringes on their exclusive rights constitutes a violation of copyright infringement. This covers the unlawful leasing, selling, or dissemination of the copyrighted work. 4 Composers and lyricists of music benefited greatly from significant modifications made to the Indian Copyright Act in 2012.
Composers and songwriters of music now have the legal right to get royalties directly from music users for the commercial use of their compositions. This clause aims to support artists in reaping long-term benefits from the popularity of their musical creations. 5 Anyone working with music (or other copyrighted works) in India should be conversant with the Indian Copyright Act in its entirety, as well as any subsequent revisions. 4 Copyright Protection in the Indian Music Industry, https://restthecase. com/knowledge-bank/copyrightprotection-in-the-indian-music-industry (last visited Apr. 22, 2024). 5 Indian Music Industry and the Copyright Controversy, https://www. theippress. com/2021/01/29/indian-musicindustry-and-the-copyright-controversy/ (Apr. 22, 2024).
The Melody of Protection: Types of Copyright The Copyright Act, of 1957, lays the foundation for music copyright in India. It recognizes two primary categories: Composition Copyright: This protects the original musical composition and lyrics. It encompasses the unique melody, harmony, rhythm, and the written words. Composers and lyricists hold this copyright, automatically upon creation. Registration with the Copyright Office strengthens their claims but is not mandatory. 6 Sound Recording Copyright: This safeguards the specific recorded version of a song. It covers the unique performance captured in the recording, including the work of singers, musicians, and producers. The owner of the recording studio or the record label typically holds this copyright.
7 The Harmony of Rights: Rights of the Song Owners The primary rights that the proprietor of a song has over his or her work are: First, economic rights- All creators of works that are protected by copyright are entitled to the following rights, which are outlined in Section 14 of the Act: Right to Reproduction (14 a(i)): The first creator of any creative work, whether musical, literary, or artistic, is entitled to this right, which gives them complete control over reproducing their creation in any material form. For example, putting a song on a CD or uploading it to a website like YouTube. This method is regarded as replicable. Right to issue Copies (14 a(ii)): One may see this right as an expansion of the right of Performance Rights (14 an (iii)): It enables the public performance of all generated works by the owner of the copyright.
For instance, in any public gathering, a lyricist is free to recite the words of a song they have already written. Right to Make Adaptations and Translations (14 a(v)&(vi)): The composer of the musical composition has the right to interpret or modify it as long as they are the original owner. An exquisite illustration of this may be seen in the Hindi translation of the Marathi song "Zingaat. " Secondly- Authors are endowed with some exclusive rights under Section 57 of the Copyright Act, which exist whether or not the author has contributed to their copyright-related rights. Among them are: Right to Paternity (57 1(a)): Authors can assert their authorship over their creations thanks to the Act. Put simply, they can continue to be recognized as the creators of the piece even after giving a producer or record company the rights connected with it.
Right to Restrain (57 1(b)): The author has the entire right to pursue compensation if their original work is destroyed, twisted, or changed in a manner that compromises their integrity or good name. Thirdly- Performers Rights, Section 38 of the Copyright Act grants the singer of the song certain rights based on their skill as a performing artist. The Act permits an artist to: a) Recording the performance, either audibly or visually. It consists: • Reproducing what was performed in any tangible format, including storing it on any kind of media. • Distributing copies to the general public that aren’t in use yet. • Sharing it with the general population. • Offering it for sale, putting it up for industrial leasing, or selling it. b) Notifying the public about their performance or broadcasting it before it has been televised. 8
METHODOLOGY
The method of conducting a study on the topic is doctrinal. The relevant legislation in the area has been referred to. Most of the sources are online. The findings from the secondary data analysis are synthesized and interpreted to address the research objectives, identify patterns, and trends, and draw meaningful conclusions.
ANALYSIS
The music industry in India is commonly perceived as a vivid spectrum encompassing diverse genres, languages, and customs. It has even had a significant impact on how our country’s culture is shaped. It has drastically changed over the past couple of decades as digital platforms have replaced tangible albums. This action’s global impact has expanded significantly. But this change additionally brought with it some difficult problems related to copyright protection. In these circumstances, copyright laws serve as the industry’s strong framework, defending the rights of all musicians, songwriters, and record labels. Additionally, these laws support the industry’s economic legitimacy.
The need for copyright protection in the music industry The emergence of online streaming services such as Gaana, JioSaavn, and Spotify, together with the digital transformation, has completely changed the face of the business. Digital platforms have simplified music access, but they have also presented new difficulties for copyright regulation. The industry faces several significant challenges, including the emergence of digital piracy, unapproved distribution, and the intricacy of governing digital rights. In this industry, the line between similar works is becoming increasingly hazy and illdefined. The issue of determining proper ownership is extremely hard because of the abundance of music-related content that is available on the internet. There’s a good chance that some previously developed work may be accidentally used inadvertently.
Furthermore, we happen to be living in what is commonly called “the remix era. ” Remaking music has become a frequent activity in today’s world, and it is unquestionably at its height right now and continues 8 Copyright Protection in the Indian Music Industry, https://restthecase. com/knowledge-bank/copyrightprotection-in-the-indian-music-industry (Apr. 23, 2024). to rise. There are provisions in the Copyright Act pertaining to cover songs; however, it is unclear if these provisions also apply to remixes. Prioritizing the rights of music composers over the rights of those in charge of music exploitation alone is desperately needed. The 2012 Copyright Act Amendment upholds the Delhi Court's ruling in Indian Performing Rights Society v. Aditya Pandey.
The Hon'ble Delhi High Court ruled in this instance that “the authors of literary and musical works incorporated in sound recordings would remain entitled to receive an equal share of royalties accruing from the utilization of the sound recordings”. In the case of Shekhar Gajanan Joshi vs. Prakash Industries Ltd. (2002), this case dealt with the concept of “substantial part” in copyright infringement. The Court ruled that copying a significant and qualitatively important portion of a song would constitute infringement, even if not the entire composition. 9 The film industry and the music industry are intricately intertwined. For a considerable amount of time, filmmakers and music labels have been abusing and misusing music and artists without any control.
They have also been refused the extravagant benefits that producers or music names receive from using the music, whether it be through individual or single covers or the use of the piece of music in a specific film. Understanding intellectual property laws is essential for makers and artists to ensure that their creations are protected. This is what enables artists to profit financially from their creations, whether they are part of the original framework or have it altered. Remix Creators and Makers are Protected under Section 51 of the 1957 Copyright Act
The new piece shouldn't be shown with labels or packaging that might mislead the public about the craftsman's nature. • It is recommended that new work be delayed until two years have passed from the end of the year when the original work was completed. • It should be possible for the author of the first work to examine every book of records linked to the new work. 10 In the music industry, remixes of songs must have the same amount of securities as the original works if they are distributed legally and in accordance with the aforementioned guidelines. The level of original dedication in the adaptation of more established works is a major problem with "remixes," and nowhere has the creator or makers’ measure of sovereignty been mentioned that would lead to the inclusion of unrelated advertisements. The song Masakali 2. 0 Tanishq Bagchi composed and reworked the song “Masakali 2.
0” without the permission of writer Mr. Prasoon Joshi and composer Mr. A. R. Rahman. The 2009 film “Delhi-6” featured “Masakali,” the first version of it. The record business T-series, which was also in charge of producing the original song in Delhi 6, recreated the tune. The debate brought up the subject of how much control a record label has over a song. Section 13(1)(a) of the Copyright Act safeguards the rights of all parties involved in the music, including the composer and lyricist. Section 38 of the same act protects the singer’s rights for 50 years in the instance of original literary works. The value of originality, which forms the cornerstone of copyright, is threatened by the song “Masakali 2. 0.
” The composer would be treated as the initial owner of the copyright in the compositions used in a film, even if a musical piece is thought to have been commissioned or prepared under a contract of service, according to the second proviso to section 17 (under the 2012 amendment). Because Mr. A. R. Rahman, the song’s composer, and producer, is the initial proprietor of the copyright to the original “Masakali” composition, T- Series was unable to recreate the song without his permission due to their copyright in the sound recording or film incorporating it. Consequently, the label lacked the authority to either 10 COPYRIGHT AND THE MUSIC INDUSTRY, https://csriprnusrl. wordpress. com/2021/05/06/copyright-andthe-music-industry/ (Apr. 23, 2024).
permit or assign his copyright, preventing any other parties from remixing the song “Masakali. ”11 In the Gramophone Co. v. Super Cassettes case, the court decided that it is required to have the original owner's consent before using any of his creative musical works. In contrast, the court in Gramophone Co v. Mars had a different view. It decided that there might not be any instances of copyright infringement and that getting the owner's authorization is not necessary as long as Section 52(1)(j) is followed (consent requirement is only for the first recording). 12 The Copyright Concerto: Impact on India’s Music Industry Copyright law serves as a crucial instrument in the orchestra of the Indian music industry, playing a multifaceted role that impacts creators, consumers, and the industry itself.
Here's a breakdown of its key impacts: Positive Impacts Incentivizes Creativity: Copyright grants creators exclusive rights over their work, allowing them to profit from their creations. This financial incentive motivates artists to invest time, resources, and innovation into composing and producing original music. 13 Protects Livelihoods: By ensuring control over distribution and reproduction, copyright allows musicians to earn a living from their work. Royalties from sales, performances, and licensing provide financial security and enable artists to sustain their careers. 14 Promotes Investment: A robust copyright framework attracts investment in the music industry.
Preserve Traditional Music: Copyright safeguards traditional and folk music, preventing unauthorized adaptations or exploitation. This helps preserve India's rich musical heritage for future generations. Negative Impacts Limits Access: Overly restrictive copyright laws can limit access to music, particularly for those who cannot afford to purchase it. This can stifle discovery and hinder the growth of the industry. Hinders Innovation: Strict copyright enforcement may discourage remixes, adaptations, and other forms of derivative works. These can be valuable forms of artistic expression and contribute to the evolution of musical styles. Challenges in Enforcement: Piracy remains a significant challenge in the digital age. Difficulty in enforcing copyright online can lead to lost revenue for artists and threaten the sustainability of the industry.
Despite its limitations, copyright law plays a vital role in fostering a healthy music industry in India. It encourages creativity, protects artists’ livelihoods, and promotes investment in the sector. However, it is crucial to strike a balance between protecting creators’ rights and ensuring reasonable access to music for consumers. Infringement In Today’s Digital Age Fair Use in Musical Works: It is acceptable for critics of a song to quote lyrics without violating any rights. The following are some examples of acceptable usage for musical works: • If an emergency occurs that calls for the music to be immediately copied and substituted with a copy that was purchased. • When less than 10% of the work is included in the extract and the material is utilized for scholarly purposes. Additionally, each student will only receive a single copy.
• Any printed copy that has been purchased may be edited, but the essential essence must not change. • Any copy of music that a teacher or student needs for rehearsal is theirs to keep. • Educational institutions may also create a single duplicate of any music recording for use in creating auditory assessments or exercises. The following actions are forbidden:: • When the sole purpose of duplicating a work is to replace it with another one. • Except for the previously mentioned emergency copying, the work is replicated to create a performance. • Although copyright is not indicated in the printed copy, copying is done. • When completing a workbook, exercise, or test requires duplicating such material. In Sony Corporation of America v Universal City Studios, Inc. in this case, Universal alleged that the use of VCRs sold by the defendant violated the 1976 Copyright Act of the U. S.
and that the sale of VCR machines constituted contributory infringement. The Court focused on the factor of fair use doctrine ‘the effect of the use on the potential market for the copyrighted work’. The court held that the practice of using a VCR to record a program for later private viewing was a ‘fair use’ because it was non-commercial and there was little likelihood of harming the potential market for the copyrighted work. 16 Even though the original purpose of copyright rules for music was to promote creativity, they have had the opposite effect in the current digital era. The music heritage and how it evolves is not taken into consideration by the law. Since music is a subjective art form, it is unreasonable to try to measure it in terms of how much money it makes or how much has been stolen.
Combining many inspired elements to create a mood and an individual style for an artist is part of the culture of music. The Resolution of the Rhythm: The Road Ahead To ensure a thriving music ecosystem, India needs to address these challenges. Here are some potential solutions: • Strengthening Copyright Enforcement: Implementing stricter measures to deter online piracy and improving mechanisms to identify and take down infringing content is crucial. • Clarifying Fair Use Guidelines: Clear guidelines on fair use in the digital age can provide better clarity for content creators and users. • Developing a Robust Royalty Collection System: Establishing a transparent and efficient system for collecting and distributing royalties across all platforms will ensure fair compensation for artists.
A musical work's copyright infringement should be assessed with both the eye and the ear, not just by comparing notes for notes. Even if the defendants' work is the same as the plaintiffs' in every way, it is not considered an infringement if it was produced independently. A lot of the time, the judge's judgment and the expert testimony are what determine whether or not the defendant plagiarized the plaintiff. The defendant may utilize the plaintiff's work, but it could not be considered infringement if he hasn't significantly changed or replicated any of the plaintiff's original work. Collaboration between government agencies, industry stakeholders, and civil society organizations is essential to address the complex challenges facing the music
16 DETERMINATION OF COPYRIGHT INFRINGEMENT IN MUSICAL WORKS by Swagata Changmai,
https://thelawbrigade. com/wp-content/uploads/2019/05/Swagata. pdf (Apr. 24, 2024). industry and ensure the effective implementation of copyright laws. By embracing technological advancements, promoting transparency and accountability, and fostering a culture of legal compliance, India can harness the transformative power of copyright to nurture artistic creativity, stimulate economic growth, and uphold the rights of music creators in the digital age. One of the landmark cases of Bright Tunes Music Corp. v. Harrisongs Music United States District Court for the Southern District of New York (420 F. Supp. 177 (1976)). The court ruled in Bright Tunes v. Harrisongs Music that defendant George Harrison, known as the defendant of music plagiarism, unknowingly copied his song ‘My Sweet Lord’ from Ronald Mack’s successful song, ‘He’s So Fine.
’ Despite the significant differences in the two songs, only minor modifications were required. The court also noted that Harrison had multiple possibilities for musical materials, and his subconscious mind knew the musical blend would be successful. The court found Harrison liable for copyright infringement, despite the subconsciously achieved similarities. The court also determined that Harrison unconsciously misappropriated identical harmonies of “He’s So Fine. ” Despite the differences in notes, both songs had the same melodic motive. The court’s decision to hire an educated musician guided the determination of Harrison’s misappropriation and unconscious copying. 17 In Sulamangalam R. Jayalakshmi v. Metamusicals, Chennai (2000) PTC 681 (Mad) the plaintiff's composition was replicated by the defendants, who also recorded and performed it in cassets.
Through the reproduction of the recorded music from the tapes, the defendants violated the plaintiff's copyright. A temporary injunction was approved. The ruling addresses every facet of musical work in detail. In Joy Music Ltd. v. Sunday Pictorial Newspapers [1960] 1 All ER 703 (McNair, J. ), the defendant’s work had its original in plaintiffs’ work but it was produced by sufficient independent new work by the defendant that it was held to be not a reproduction of the plaintiffs’ work but a new original work derived from the plaintiff’s work. 18 Remedies available and civil damages. • Injunctions, the provision of copies that violate the law, payment of damages for any conversions made, and profit-sharing statements are examples of civil remedies.
• Criminal remedies include placing the copyright infringement perpetrator in jail, fining them, or seizing the offending copies and giving them to the copyright holder. • Prohibiting the importation and distribution of copies of the work that violate copyright are administrative remedies. Other remedies: In addition to these remedies, Anton pillar orders, Mareva injunctions, and other remedies are recognized under Section 55 of the legislation. • The Anton pillar order is severe and has far-reaching consequences, it should only be used in the most dire situations. • It represents the utmost authority of the court and is often accompanied by a Mareva Injunction. which forbids a defendant from acting in a way that might thwart future court rulings favoring the plaintiff, including disposing of assets.
Prior to granting such orders, the court must be convinced that the plaintiff has a very strong case, that the plaintiff has suffered or is likely to suffer grave and irreversible harm, and that there is substantial proof that the defendant possesses incriminating items or documents and that there is a genuine risk that he could destroy the material. 19
CONCLUSION
The Final Note: A Symphony of Creativity and Commerce A vital component of our life is music. There have been claims that music has positive effects on both mental and physical health. There are several ways that music is good for us. In the Indian music industry, copyright law is essential to promoting innovation and originality. It
19 DETERMINATION OF COPYRIGHT INFRINGEMENT IN MUSICAL WORKS by Swagata Changmai,
https://thelawbrigade. com/wp-content/uploads/2019/05/Swagata. pdf (Apr. 24, 2024). permits the business to thrive by acknowledging the rights of musicians and guaranteeing just recompense. Nonetheless, the legal structure must always be improved and adjusted to meet new difficulties. India has the potential to establish a more harmonious economy by tackling problems such as piracy and establishing a strong royalty system. This will allow both business and innovation to flourish together. Therefore, this music needs to be protected in a manner so that the artists are constantly inspired to produce more and more music. The idea of musical work infringement is not new. It is important to recognize the inventors’ hard work and to outlaw those who make fraudulent claims. The number of infringement cases is increasing despite the robust legal framework.
Therefore, the law must be applied correctly and strictly. The need for uniqueness will be clear if law enforcement agencies take strong action against imitations. Stricter enforcement will encourage musicians to compose music, allowing listeners to experience an increasing amount of calming music in the years to come. The Indian music field is constantly changing, and many well-known musicians call it home. However, musicians who started in the music business have always focused on the structural disparities in the industry, which look ambiguous when disclosed to the right people. Producers and record labels bear the brunt of these inequalities. This need is primarily met by the 2012 Amendment, which guarantees that creators are compensated with royalties for their original works.
India can establish a more egalitarian and sustainable music industry environment by promoting international cooperation and modifying the legal structure to reflect the realities of the digital era. This would guarantee that artists receive just compensation in addition to protection, enabling them to keep creating the soundtrack for India’s rich musical history. The sounds of business and creativity will blend in this future symphony, opening the door for a thriving Indian music industry. The Indian music business may ensure the preservation and expansion of its brimming musical legacy by developing a culture of respect for intellectual property, utilizing technology, and improving regulatory frameworks.