The apex court while deciding a matter of copyright in Indian Performing Right Society Limited Vs Eastern Indian Motion Picture Association made an observation in 1977 that the rights of the creator of every work deserve protection under the copyright. It was noticed that there is a lacuna in the definition of the word musical work which disentitled the musician or the group of a musical artist to the copyright protection because the major element which lens monetary value to a musical performance is not only the music maker but also the musician who created the musical work and this has finally lead to change in the definition of the musical work.
The definition of musical work was amended in 1994 video amendment of the copyright act. Now section 2 (p) of the Copyright Act 1957 provides that- “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or accent intended to be sung, spoken, or performed with Music.
The dictionary meaning of the word music is “sound in melodic or harmonic combination produced by voice or instruments.
It is very clear from the definition that the musical work does not include the lyrics for any sound fixed on any medium. The current definition gives protection to classical music and folk music which comes from generation and was never fixed in any form and nobody claims any copyright over that particular music. The author in relation to a musical work is a composer and a composer is a person who composed the music regardless of the fact whether he recorded it in any form of graphical notation or not.
The musical work may be created or produced by the collaboration of two or more authors, where the efforts of one author cannot be separated from the contribution made by the other author. In all such cases, the application for copyright of the musical work may be filed by these persons as joint authors or composers and such work is known as work of joint authorship.
Confusion may arise in the minds of the common man with respect to the classification of work as a musical work or sound recording. The musical work and sound recordings are separate works and the application has to be filed in different categories. Where a graphical notation of a musical work is recorded or fixed in any tangible form and the same is communicated through any medium either directly or with the aid of a machine or device from which the sound may be produced it amounts to sound recording.
The sound recording has been defined under section 2(xx) of the copyright act,1957. The author of the sound recording is the producer of the sound recording. A producer is a person who takes the work, the initiative, and responsibility for making. A producer of sound recording needs to have no objection certificate or an assignment agreement from the various persons involved in the creation of the work like the lyricist of the music, the composer of the music to enjoy copyright protection. If a sound recording is produced without taking permission of the author of the work it will amount to infringement of the copyright and shall not be eligible for copyright protection.
This can be well illustrated through a general example
Mrs. A sing a song written by Mr. B with music composed by Mr. C and recorded in recording studio ABC recording studio and XYZ recording company recorded the same. Further, a dancer Mrs. Zeengh performs a dance to the same song in an event organized by a branding company.
The various possible rights in the verb example areas under:
- Mr B, being the writer of the song, enjoys the proprietary right over the lyrics of the song as provided under section 13 (1)(a) of the copyright act.
- Mrs A being the singer of the song, gets protection as a performer under section 38 of the copyright act.
- As per section 2(d)(ii), Mr C who is a composer is the author in relation to the musical work and his work is protected under section 13 (1) (a).
- ABC recording studio being the producer of the sound recording enjoys the copyright protection for the sound recording under section 13 (4) provided he has the NOC for the assignment rights from the old three-person mentioned above like namely Mr B (writer), Mrs A (singer)and Mr C.
- Xyz recording company is being granted protection of the copyright for the right to distribution and publication subject to the condition that he acquired either the assignment or no objection certificate from all the four persons mentioned above under section 13 (1) (c).
It is a very cumbersome job to get the NOC from so many right holders thus the practical approach is that all the right holders in a sound recording assign their right to copyright societies like the Indian performer’s rights society (IPRS) and Phonographic Performance Limited (PPL) is offering a licence to the recording companies for the recording purposes and its further distribution and publication. Copyright society could accept from the copyright owner’s exclusive authorisation to administer any right in any work by the issue of licence. They collect a fee for issuance of such licence and distribute such fees among the owners of the right holder after making a deduction for their own expenses. The copyright owner may withdraw such authorisation granted in favour of the copyrighted societies provided it is not contrary to any contract entered with the copyright society. The copyright societies administering musical work in India are the Indian performer’s rights society (IPRS) and Phonographic Performance Limited (PPL).
- The event organiser will have the right to perform the program that is right to the public performance of the work during the event. This right is protected under section 14(3) of the copyright act.
Section 14(a)(i) to (vii) of the copyright act talks about the exclusive right of the author in respect of the work. The copyright owner in musical work enjoys the below rights:
- To reproduce or authorize to reproduce the work in any material form including storing it in any medium by electronic means.
- Right to store in any electronic medium like CD ROM DVD or upload on the internet
- Right to share in resale price where the resale price exceeds Rupees Ten Thousand or more provided the author of such work was the first owner.
Every recorded work with moving visuals and images will be considered as a cinematograph Film. Section 2(f) of the copyright act defines the cinematograph film as “cinematograph film” means any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.
The acts further define the visual recording in Section 2 (xxa) as under:
“Visual recording” means recording in any medium by any method including the storing of it by any electronic means of moving images or of the representations thereof, from which they can be perceived, reproduced, or communicated by any method.
Any recording of moving images like photograph animated contents drawings video game animations, video recordings of choreography/classroom lectures/ public delivery of speeches /dance performances will be considered as a cinematograph film.
Cinematograph film is the end result of the collaboration of various works like literary or artistic dramatic music work sound recording still it is considered as a separate work and enjoys the copyright protection under the category of a cinematograph film. The act provides that copyright shall subsist throughout India in cinematograph film subject to the provision of the Copyright Act. Thus, a cinematograph film must not infringe rights in literary, artistic, musical work, sound recording, and dramatic work to be entitled to remedies in the copyright. Thus, cinematographic rights are distinct and independent of the other rights in the work on which it is based. The work of an actor and his performance as an actor does not fall within the definition of cinematograph film and hence is not protected under this act; it is the cinematograph film that enjoys protection along with its soundtrack.
The producer is the author of a cinematograph film but he needs to submit a no-objection certificate for the assignment agreement signed by the various right holders in his favor at the time of making an application for registration of the cinematograph work with the copyright office.
“Producer” in relation to a cinematograph film or sound recording means a person who takes initiative and responsibility for making the work. The word responsibility is very important here because it is the producer who will be sued for copyright infringement wherein the case is filed for copyright infringement by any of the right holders as the producer is the person responsible for making the work and has caused such infringement.
The term Publishers is very important in the copyright as he is a person who makes the work available to the public the meaning of Publication is defined under section 3 of the copyright act as\ making a work available to the public by issue of copies or by communicating the work to the public further the act defines the word communicating to the public under section 2f of the copyright act which is as under;
“Communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display for diffusion other than by issuing physical copies of it, whether simultaneously or at places and times to send individually, regardless of whether any member of the public actually sees, here or otherwise enjoys the work or performance so made available.
In a nutshell communication to the public means once the work is made available to the public irrespective of the fact whether it has been actually seen by the public at large or not.
General examples of the publication could be
- Cinematograph film made available at the video store in the market in the form of a flash drive DVD or CD or any other means of storage
- Display of the film in multiplexers cinema halls or theatres
- Broadcasting a film through DTH channel cable TV or through online video platforms
A cinematographer’s film enjoys protection for a term of 60 years from the date of its first publication.