Quick bite: Dear readers, the following post is brought to you by the Media and Entertainment law experts of BananaIP (BIP)Counsels. This post is the first in its series and promises to engage your grey matter. This post will essentially help you understand the Entertainment Law and Copyrights surrounding Royalty Rights in Sound Recordings, Lyrical & Musical Works.
Colloquially used word music/song is more than melody or harmony reduced to print, writing or graphic form[1]. Music is a language with a universal appeal. Music in itself is healing. It’s an explosive expression of humanity. It’s something we are all touched by. No matter what culture we’re from, everyone loves music. [2]
The Copyright Act, 2012 (hereinafter referred to as ‘the Act’) recognizes three classes of work viz. (a) literary, dramatic, musical or artistic work; (b) cinematographic film and (c) sound recording[3]. Song is a harmonious trinity of lyrics, music and singing[4]. The Act under Section 13 distinctly recognizes the existence of author’s independent copyright in Literary Works, Musical Works and Sound Recordings. A song being a harmonious combination of labour and creativity of authors of literary work (lyric), musical work (tune/music), sound recording of the performance of the lyrics and music by a performer[5], requires a person willing to perform or willing to communicate the work to public obtain license or authorization from the owner of copyright. Therefore, to play a song which is subject to protection under the law of copyright in hotels, restaurants, events, or on radio or in any commercial establishment, public place or for a non-private use, the person not being the owner of the copyright requires to obtain license or authorization from the owner of copyright for such performance or communication to public.
As discussed earlier, ownership of copyright in a song mainly involves three elements
- The lyrics of the song, protected as literary work where the owner of the copyright is the lyricist.
- The music[6] of the song protected as a musical work where the owner of the copyright is the composer.
- Song recorded together with music and lyrics is protected as a sound recording[7] where the owner of the copyright is the producer (the record company/label) of the sound recording.
Therefore, the two main Copyrights that are asserted while licensing a song are 1. the sound recording copyright which is the recording of sounds from which such sounds may be produced[8] and 2. the musical composition copyright which includes the underlying music and lyrics to the song[9].
A person willing to perform or communicate to public any song subject to protection under the law of copyright requires paying royalty to each author separately and obtaining separate licenses from each author. The Copyright Act categorically provides to authors of literary and musical work along with other rights- the right to perform the work in public, and/or the right to communicate the work to the public[10]; similarly, the Act recognizing the distinct right in the author of sound recording and thus provides amongst other rights- the right to communicate the sound recording to the public[11].
Although sound recording may be carved out of pre-existing musical, lyrical or cinematographic film copyright, the law has recognized a distinct right with respect to sound recording. Therefore, the author of sound recording consisting of the acoustic portion including a lyric or a musical work has the right to authorize any third party to make the sound recording be heard in public without securing any further permission from the author (composer) of the lyric or musical work for the performance of the work in public.[12]
The licenses discussed above can be issued by the owner of copyright, in his individual capacity or by Copyright Societies established under the provisions of Section 33 of the Act. Copyright Societies such as Indian Performing Right Society Ltd. (hereinafter referred to as IPRS) [whose members include authors of the lyrics or composers of the musical score] or Phonographic Performance Ltd. (hereinafter referred to as PPL) [whose members include copyright holders in sound recordings] are established for management and protection of copyright of their members. These copyright societies’ issue licenses, collect royalties, distribute fee[13] and institute suit for copyright infringement under the Copyright Act[14] on behalf of their members.
However, in the past few years courts have been called upon to answer, a peculiar question pertaining to the derivative work (sound recording) which is a combination of three elements: lyrics, music and singing[15] when exploited, does a licensee who obtains a permission from the copyright owner of the derivative work (sound recording) to broadcast by way of communicating to the public the said derivative work, additionally require a similar permission from the owner of the underlying works i.e. the literary and musical works?
Authored by the Media and Entertainment law division at BananaIP (BIP) Counsels.
References:
[1]Indian Performing Right Society Ltd vs Eastern India Motion Pictures Association, 1977 AIR 1443
[2] Billy Joel- an American singer-songwriter and pianist
[3] Indian Performing Right Society Ltd. Vs. Aditya Pandey & Ors., FAO(OS) No.423-424/2011
[4] 2011 Decision, supra note 3
[5] Phonographic Performance vs Cri Events Private Limited & Ors, CS(OS) 1185/2006 & I.A. Nos. 6486/2006, 6487/2006, 7027/2006
[6] ‘Musical work’, as defined in s.2 ( p) reads: musical work is 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;
[7] ‘Sound Recording’, as defined in s.2 (xx) reads: “sound recording” means 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;
[8]Section 2(xx) of Copyright Act, 2012
[9]Muthooth Finance Ltd vs The Indian Performing Rights, OSA No.64 of 2009
[10]Section 14 (a) (iii) of the Copyright Act, 2012
[11]Section 14 (e) (iii) of the Copyright Act, 2012
[12] Indian Performing Rights Society Vs. Eastern India Motion Pictures Association, 1977 (2) SCC 820
[14]PPL v. Hotel Gold Regency &Ors. (RFA(OS) No. 57 & 58 of 2008)
[15] Indian Performing Right Society Ltd. Vs. Aditya Pandey &Ors., CIVIL APPEAL NOs. 9412-9413 OF 2016
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