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Compulsory licensing of Musical Rights under Copyright Law


Definition of Copyright


Copyright is a form of intellectual property that protects artistic works. It is an assortment of rights that entrusts the person the protection of their original work - like written material, song, music, etc. This means that the original creators of the product and anyone they offer authorization to are the sole ones with the right to reproduce the work. Copyright law provides creators of original material the prerogative to additional use and duplicates that material for a given amount of time, at the purpose the Copyrighted item becomes public domain.


Copyright law protects the expression idea of the original work rather than the idea itself. According to section 13 of The Copyright Act 1957, copyright protection is granted in literary works, dramatic works, musical works, artistic works, cinematograph films, and sound recording. For example: books, computer programme is protected under literary work.


Copyright provides a bundle of exclusive rights under Section 14 of the Act. These rights can only be exercised by the owners of the copyright. These include, right to adaptation, right to reproduce, right to publicize, etc.



Importance of Copyright Law


The importance of copyright is an essential part of today’s modern world. Copyright helps to protect the value of an author’s works by giving the originator of the work the surety to protect their works from any unwise usage. This helps the originator to prevent their data from being copied to a degree where they cannot sell it or get any credit from it.


Copyright is a way to progress. It helps to promote science and useful arts. It encourages people to come up with original and innovative ideas, which helps the people to benefit financially. It takes a lot of time, energy, and resources to come up with new innovative and creative ideas that are completely different from others. Copyright law helps to protect the “privacy” of the works so that only the rightful owner has the right to sell or let others copy its original work and get credit from it. For example, an author has spent a lot of time and money to produce a book filled with his ideas and thoughts. It will be a loss if someone reproduces the same work and sell it for a fraction of the price. Copyright law provides the author with the obligation to be the sole proprietor of their works and decide how to sell and get the credit for them.


Copyright law disallows anyone to copy other original works, either written or drawn. In a world where technology is so advanced, it is important to have something that will make the creators move forward with their ideas and creations without being at the risk of their works getting copied or stolen. Copyright law gives them the certainty to license their works and get them publicized allowing them to gain recognition and also protecting their livelihood. It is legal protection provided to the original author of the material.


Copyright law strives to balance the interests of copyright owners and users. A copyright owner has a choice to ban users from using a work or any specific method without the owner’s permission. The user cannot use the original work without the owner’s permission. Copyright law helps to make sure that the original ideas and creations should not be stolen. The copyright owner has the exclusive right to control the distribution of his works. The owner has the right to decide on the production and adaptation of his works, and also decide the public display of the performance of his works.



License under Copyright Law


A license is a transfer of copyright interest. In a license, the right to use a copyright is given to some other person with some restrictions. The license can grant the right to copyright a work that is already in existence or has yet to came into existence. A licensee, a person who has been granted the legal right to use copyrighted work, can use the copyrighted work without any harm of being infringed or unauthorizes use being brought by the copyright owner.


The license has two important types,

I) Voluntary license

II) Compulsory license


I) Voluntary license is covered under Section 30 of the Indian Copyright Act, which defines voluntary licensing as: the owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by license in writing signed by him or by duly authorized agent.


II) Compulsory license is covered under Section 31 of the Indian Copyright Act. It is a term used for the statutory license which gives an exclusive right to do an act without the prior permission of the owner of the copyright. Section 31 provides for compulsory licensing of copyrighted work that is withheld from the public.


Importance of Compulsory license

A compulsory license is important as it gives access to use the works of the original owners in a licensed form that is not accessible to the public. It is also important as compulsory licensing can be granted in cases of unpublished works where the author dies before the publishing of the work and through means of compulsory licensing it can be brought into the public domain. The case of unpublished work includes authors which are unknown, dead, or who cannot be traced and as a result, any person can request the board and seek a license to publish the work.


Case Study:

One of the most landmark judgments is the “Entertainment Network (India) Ltd. V. Super Cassette Industries Ltd.”, in the present case while radio Mirchi was playing songs, super cassette claimed the rights on it. It also filed for a permanent injunction at the same time. At the time of the pending of the suit, the FM operators also applied for the grant of compulsory licensing under the copyright act.


The issue which was in question was whether the granting of the compulsory license was viable at this time and the court said that compulsory licensing can only be granted when denied to public access and in the present case the license was already granted to the AIR and Radio City so Radio Mirchi was liable for the infringement of copyright. It is a case from the year 2004.



Musical Work


According to Section 2(p) “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 music. According to section 2(d)(ii), 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.


In Gramophone Company of India vs Super Cassette Industries Ltd , the Delhi High Court observed: Musical work is not merely a combination of melody and harmony or either of them. Every musical composition has a structure, or shape that is the arrangement of individual elements so as-to constitute a whole and that musical notation means a visual instruction for the performance of music.


Music Licensing


It is a licensed use of copyrighted music that is used for public performances. A license is attained from the composer of the music each time the music is being broadcasted. The owner of the copyrighted work has all the right to reproduce, distribute or adapt the copyrighted work. This also includes the right to be approved or refused by the owner of the copyrighted work. This also means that the music that is broadcasted must obtain a license and also should pay the fees for broadcasting it.



Copyright in music works


Originality has its own novelty. In today’s era music has turned out to be an integral part of a person’s life. Ranging from its inevitable source of entertainment to its needs in everyday life, it is hard to imagine a world without music. However, with the change of dynamism in the society, music has morphed to keep its pace with the changes of society. One of the greatest changes is the introduction to ‘remix’.


Remix is nothing but a modification of the beats of the original music. There also can be the addition or removal of some lyrics therein original work. An example of this is the famed song ‘Tamma Tamma’ which was a famous iconic song of its time. The same song has been altered into something new with the modification of beats and music along with the addition of few new lyrics in it. The old song has been transformed with new beats and some modern touch.


But although it’s a remix version, it still has a uniqueness of its own. Many believe that when a composition is broken down to make a new form of music with alteration and variation it becomes a whole new composition with a new touch of its own. The ownership of it should be with the author of the new creation and not the author of the original work. It should also be given the same protection and rights as the other forms of novel works.


However, Section 51 of The Copyright Act 1957(Amendment 2012), states that if any person, without obtaining the license from the original owner of the copyright, performs an act that violates the copyright of the original owner, it shall be termed as infringement. The main issue with the ‘remix’ is the extent of original work in the remix version. The Copyright Law has no specific law for remix, so it often becomes challenging for the courts to determine the nature of infringement in such works. So, the major legal challenge is to protect the rights of the author of the remixed work, along with the protection of the original work without violating the copyright law both morally and financially.


Taking the consent of the original owner of the musical work is of great importance as laid out in the case of Gramophone Co vs Super Cassettes. The court laid out that the plaintiff’s consent was important for making a recording in compliance with Section 52(1) (j) in order to not fall under the category of infringement. In the present case, an audio cassette was made with the title Ganapati aarti ashthavinayak geete. The defendants wanted to make a sound recording that consisted of the original sound recording and thereby offered to pay a license fee for the same. The plaintiffs did not agree and returned the cheque which clearly shows that they did not give permission for the usage of the musical work. Even after this, the defendants brought out their sound recording. Thus, without the consent of the owner of the original work, it shall be an infringement.


Nevertheless, it will not amount to infringement if, while making a remix, a prior notice is given to the owner of the original work along with the royalties that are to be paid in advance. Without prior notice to the owner, it will be counted as infringement of rights. When the new works are brought to the market, it has to be made sure, that the identities of the artists of the that work should be disclosed, so that people are not misinformed by it. The new work should not be made until two years of the expiration of the novel work.


It is clear that remix version of the original work should be protected, same as the novel work as it requires an abundance amount of time and knowledge to make a remix. The only issue with ‘remix’ is that, the extent of original contribution in the new version of the work has led the authors to be at a disadvantage. As there is no fixed royalty specified in the Copyright Act, this leads the authors of the novel work to be in a difficult situation.


Conclusion


The recent times has seen the evolution in the field of arts. Adaptations of the novel works by creating it into something new has become a common practice. But the issue lies here, as it gets difficult to differentiate in original and adaptation. This in return has brought various issues in circling copyright infringement. The copyright protection generally, for every and each original work of the author, is lifetime plus 60 years after his or her death, as written in Section 22 of the Act. Section 51 of Copyright Act governs the copyright protection however there exists a demand for amending the copyright law to make it more applicable in the age of remixes and serve the requirements of both- owner or composer of the initial song and the maker of the remix version of that song. Along with this, there should also be a provision for the payment of royalties to the original author's, so that they are also financially supported.


Written By Ms. Somi Jha

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