Introduction:
The music industry has undergone a massive shift of paramount nature in recent years which has been primarily caused due to the inception of streaming services and with that the coming of digital distribution of audio based media, which includes even podcasts and such. Such advancements have greatly revolutionized how music is consumed en masse and has made a great number of opportunities for both the artists as well as the record labels there that help get their art out. A key part of this transformation is the ever evolving landscape of IP Law, particularly that in relation to copyright and royalty structures.
In the past, the music industry greatly depended on selling physical copies like records, tapes and CDs. This made it quite simple to handle copyright and royalties because artists or record labels could check sales easily through regular distribution methods. But with the internet and digital advancements, this pattern has been shaken. Music is now available immediately from any place in the world, and services for streaming such as Spotify, Apple Music and YouTube have turned into the main platforms to consume music.
This move to digital has big effects on IP law. Copyright, which is meant to guard the rights of creators and make sure they get paid for their work, now faces new problems in the digital time. The simple way of copying and sharing digital content makes people worried about piracy and using things without permission. Also, the business model of streaming services, which earn money from subscriptions and ads instead of selling directly, makes old ways of paying royalties more complex. Artists and songwriters many times must manage difficult agreements for using their work and how money is shared, which can be very different on various platforms and jurisdictions.
In this paper, we will look at the role of IP in today’s music industry all the while paying special attention to how streaming services and digital distribution are changing copyright and royalty systems. First, we will review the historical background and traditional IP frameworks that have controlled the music industry up until now. First, we will look at how digital distribution and streaming are working today. We will talk about the main problems and chances for everyone involved in this area. Then, we will talk over possible changes and future paths for IP (Intellectual Property) law in the music business. This includes thinking about how rules and laws can change to help new ideas grow while making sure creators get paid fairly.
Research Methodology:
This paper is more of an analysis as to how IP Laws can be used to help protect artists and their art with an Indian perspective and a global perspective both taken into account. Secondary sources such as websites, newspapers and journals have been used for the research.
Review of Literature:
We will mostly go through existing literature in the realm of IP such as ‘The Copyrights Act, 1957’ and ‘The Trade Marks Act, 1999’, along with various blogs and articles that speak extensively about how this shift to digital has completely changed the landscape of the music industry for the better but sometimes for the worse.
Paradigm Shift:
The music industry as with most other media based industries is financially dependant for its very existence on the regulation of licensing and ownership legally. Most artists generally used to rely on record labels to help get their music out because there was a time when marketing the music was an extremely hard task but then came a time when streaming started gaining traction, apps like spotify and apple music helped fuel this streaming boom, which first saw its inception with music being shared on the peer to peer file application limewire. As aforementioned, streaming has changed the landscape of the music industry for the better by ensuring that it is easier than ever to get your music out, artists don’t have to rely on record labels and companies anymore to get their music out and this reduces the way they are exploited but along with this boon comes the bane that the artists barely get paid any royalties and further than that, the record labels can keep the music and own the masters of the artists which will make it harder for the artists to claim their art as their own and in turn profit from it. According to the IFPI, 67% of global music business revenue comes from streaming platforms. Music streaming services generate 67% of the total revenue generated by the music business worldwide. By contrast, the percentage of revenue from physical sales is currently only 16.1%.
Record Labels v. The Artists:
In the famous case of George Harrison v. The Chiffons(1976), George Harrison who was the first member of The Beatles to hit No. 1 on the charts with his solo song, “My Sweet Lord” in 1970 was sued by The Chiffons as they felt his song felt strikingly similar to their 1962 hit song “He’s So Fine’ that was written by Ronnie Mack. Alan Klein, the manager of George Harrison at the time, approached Bright Tunes Music Corporation, the owners of the original song’s copyright, in an effort to buy the entire repertoire. However, Bright Tunes decided to press on with a legal battle and in 1971 they launched a complaint for plagiarism. It would take a further four years for the case to go to trial.
Because of the song’s success, it was decided that Harrison had access to Chiffon’s song. Despite not having intended to utilize it for his own version, he was found guilty of “subconscious plagiarism” in 1981 and had to pay $1,599,987 in fines. After Klein acquired Bright Tunes Music and arranged the song’s sale to Harrison, this sum was reduced to $587,000.
This case is important in showing us how record labels and the artists haven’t always seen eye to eye but their relationship is important in the sense that it is nearly impossible for one to exist without the other. Michael Jackson famously bought out The Beatles entire catalogue which has been said to be worth over 1 Billion USD. The friendship between Michael Jackson and Paul McCartney which stemmed from them collaborating on “The Girl is Mine”, which was the lead single on Jackson’s album “Thriller: which went on to become the highest selling album of all time. Jackson once joked about how he could own Paul’s music if he wanted and after he bought the masters for them, their relationship turned quite sour. Michael Jackson in his 1988 Biography titled “Moonwalk”, stated that him and Paul both learned the hard way about the business and the importance of Publishing, Royalties and the dignity of songwriting.
We have noted that throughout the history of recorded music copyright laws, groups like the RIAA in the United States and the BPI in Britain have worked with the IFPI to explore potential legislative measures to prevent the counterfeiting of pre-recorded software.
Case studies:
The Indian music business has seen numerous instances of copyright infringement as a result of song recreations. “Musical work” was formerly described by the Copyright Act, 1957 Act as any combination of melody and harmony, or either of them printed, reduced to text, or generated in any other way graphically or reproduced. This definition totally disregarded voice and lyrics as components of a “musical work,” therefore outlawing the rights of both lyricists and singers. The Copyright Law, as modified in 2012, dealt with the progress of both music and film sectors and removed outdated sections. The inclusion of provisos 2 and 3 under section 18 states that an author of a literary or musical work which is included in any cinematographic film shall not assign or relinquish his rights to receive royalties for the utilisation of such work. This made contracts null and void that could result in propagation or reproduction (among other things) if they were primarily protected under copyright law. Entertainment industry sometimes encounters issues when there are complex contractual relationships between its multiple stakeholders; this might cause overlapping or conjoined rights due to a maze created by these contracts. When the law is applied strictly, it becomes very explicit and helps people understand how to not exploit or infringe upon original work.
- Genda Phool:
The song ‘Genda Phool’, which is a remake of ‘Boroloker Biti Lo’ released by singer Badshah, has been recently surrounded with controversy over its lyrics. There exists one line in the song that many people find objectionable followed by pure musical score between 0:44 mins and 1:17 min roughly, repeated twice (Times Music South Vevo India, 2020). In the Song Description section available on YouTube, no mention or credit is given to Ratan Kahar who according to documentary called ‘Ratan Kahar-The forgotten gem’ in year 1972 wrote lyric’s of song ‘Boroloker Biti Lo’ when he was part of an organization named Anan Gosthi (Times Music South Vevo India, 2020). This particular famous choir sung this popular song. Additionally, it’s not a secret that his song may have been used multiple times without giving him due credit. The song ‘Boroloker Biti Lo’ was originally adapted by Swapna Chakraborty, a famous Bengali folk music singer in the year 1976 and she took it to fame from there. But even at that time Kahar did not receive any recognition for his work (Times of India, 2020). The question that emerges is if Ratan Kahar was truly the initial creator of this song and what parts of the Copyright Act are relevant with regards to the most recent song called ‘Genda Phool’?
It is claimed that Badshah both replicated the work and communicated it to the public by way of an electronic medium (YouTube) through adaptation of the work. Examining the interpretation clause of Copyright Act, 1957, ‘adaptation’ in relation to musical work deals with any form of arrangement or transcription. As per Indian Copyright Act authors have a near-absolute right to “claim authorship of the work” (section 57(a)). So, if it is proven that Kahar wrote and rendered the song ‘Boroloker Biti Lo’, and the lyrics or rendition in ‘Genda Phool’ are substantially similar to this copyrightable part of original song, then Badshah’s actions would conflict with section 57(a) of Act. It even goes on to be out-and-out infringement under section 51 of Act for violating Ratan Kahar’s exclusive rights over song as per Section 14 of Act; this happens regardless results from any due diligence done. Each data about the song that one could get back in due diligence is showing ‘Boroloker Biti Lo’ as a traditional folk song from Bauls of Bengal. This point seems key because expressions related to traditional culture or folklore are often seen as open to recreation and sampling. It also makes me think that parts from the original song ‘Boroloker Biti Lo’, if any, might be under scrutiny too – this raises questions on what exactly can be protected by copyright law in first place.
The observation from scholars is that fiction of pure originality often can be used to expropriating and economically benefiting from traditions, identities, ideas or expressions of the minority communities. This occurs without any fair sharing in benefits – it’s like controlling culture near controlling “their self-definition tools in relation to others.” It has been said that Kahar responded to Badshah’s statement when the rapper stated he wanted to help this veteran artist. In response, Kahar said he expected a little monetary assistance because his living condition is poverty-stricken and would appreciate receiving aid from him (Badshah). Badshah, who acted quickly, contacted Kahar and put Rs 5,00,000 in the bank account of this experienced artist. This also highlights that copyright law allows for the kindness of those with whom it does not recognize their work as being valuable enough to protect.
- Masakali 2.0:
As explained in Section 17 of The Copyright Act 1957, the composer who is also the author of a musical work holds first ownership of copyright in that composition. This assumes there are no special situations altering this basic rule. As per proviso (c) to section 17, if a work comes into existence during employment under a contract of service and there is no agreement stating otherwise, it will be considered made by the employer and not by its author. So, for instance, if we have a musical work created under such employment conditions with producer as contractual partner then producer would have initial rights over copyright for composition – not composer himself (unless agreed upon differently). In addition, proviso (b) does not mention musical works specifically. However, as per the flawed interpretation of the Supreme Court in 1977 in IPRS v. EIMPAA, even if a composition is commissioned by the producer for a film and not created under a contract of service – as it usually happens – the first owner would be film producer and not composer (unless otherwise agreed). The decision has been used to argue that producers are first owners of copyright in literary or musical works recorded on films whether they come from commission or creation under a contract of service (for example, see here). The song ‘Masakali 2.0’ was made again and composed by Tanishq Bagchi, but he didn’t get permission from the first creators of this song – Mr. A.R. Rahman who is a composer and Mr. Prasoon Joshi who wrote it originally. The original version called ‘Masakali’ from movie ‘Delhi-6’ came out in 2009. The song was re-created by T-series, the record company that made the original song in Delhi 6. This conflict brought up an issue about how much control a record label has over their songs. In total, section 13(1)(a) of Copyright Act protects rights for every person involved with this song like lyricist and composer. In situation of original literary works, singer’s right is protected for 50 years under section 38 of the same act. The song ‘Masakali 2.0’ is a threat to the concept of Originality and its appreciations which are foundation stones in Copyright. The second proviso to section 17 (by the amendment in year 2012), states that even if a musical work is considered as commissioned or created under a contract of service, composer would be regarded as first owner of copyright in compositions included in film. Thus, T- Series couldn’t have made a new version of the song because they possess copyright in the sound recording or film that includes it. They would have needed consent from Mr. A.R Rahman (he is both producer and composer for original ‘Masakali’) who holds first ownership of copyright for this particular composition ‘Masakali’. So if he hadn’t given away or licensed his copyright, then no one could have remade or allowed another person to remake their song ‘Masakali’.
- Kantara and Thaikkudam Bridge:
In 2022, there was a Kannada action-drama movie called “Kantara.” It was written and directed by Rishab Shetty and made under Hombale films. The film became very successful at the box office and got good reviews from critics all around the country. But shortly after it came out on September 30th, this hit movie faced plagiarism accusations. A music group from Kerala named Thaikkudam Bridge claimed that the song “Varaha Roopam” in the film copied their own song “Navarasam,” which they had released five years earlier.
Thaikkudam Bridge went to court saying their original music and sound recording of ‘Navarasam’ was copied without permission. They claimed both moral and legal rights under the Copyright Act 1957. However, a single judge bench with Justice C.S.Dias in the Kerala High Court did not agree with them for two reasons: first, because the case was still new in the lower court; second, because Thaikkudam Bridge came to high court before using all other available legal options. So, their appeal got rejected by this higher court.
Suggestions:
In order to make better Intellectual Property and Copyright laws for artists so they get fair money from streaming services, some important steps need to be taken. First, it is important to change how royalties are shared out to create clear and fair payment systems. This might mean creating a payment system focused on users, where royalties are given based on how each user listens to music rather than the current pro-rata method. Right now, this often favors top artists too much. Also, making copyright laws stronger can help protect artists from their work being used without permission so they get paid fairly for it. Making international IP laws stronger and making rules the same in different countries would help fight against piracy and make sure artists get their fair payments all over the world. Also, setting required minimum royalty rates could stop streaming platforms from giving very low payments to artists. Giving musicians more data about how fans listen to their songs on these platforms can help them make smarter choices about sharing their music. Also, setting up stronger and friendlier groups that handle royalties for artists can simplify the process of collecting and giving out payments. This way, individual artists won’t have too much paperwork to deal with. By making these changes, IP laws can more effectively aid artists in increasing their earnings while still keeping music accessible and affordable for everyone.
Conclusion:
Preserving the legacies of these Artists need to be of Paramount importance to us as a society. Humanity is fueled and motivated by art, and if these artists aren’t protected by various laws and rules it’ll just lead to further gatekeeping which will in turn make it more harder for artists to fully express their creativity and in turn harm us as individuals as we will keep having lower quality art to consume, with a quantity over quality approach being chosen in order to ensure that the artists themselves get paid enough.Major global artists such as Kanye West, Taylor Swift, Metro Boomin and even artists of the yester-year such as Neil Young have pulled their music from streaming as a form of dissent although they put it back on, such acts of defiance show us that the current structure for Copyright Laws with regards to the music industry isn’t working the way it was intended and major amendments need to be made. The inception of AI too and AI made music, especially those that recreate various artists music poses a great threat to the industry as Artificial Intelligence can recreate it with such accuracy. In conclusion, this paper looked at how digital distribution and streaming services changed the music industry a lot. It showed important changes in copyright and royalty systems. Moving from selling physical albums to digital streaming has created new chances and problems, making it necessary to rethink current IP laws. To better support artists and make sure they get fair payment, it is very important to change how royalties are shared. Maybe using a user-focused payment system can help everyone earn fairly. Making copyright rules stronger and making international IP laws work together will fight against stealing creative works (piracy) and protect royalties everywhere in the world. Setting required minimum royalty rates and improving clarity by giving better access to usage data will give more power to artists. Also, having stronger collective management organizations can make the process of collecting royalties easier, lowering administrative workloads. By using these solutions, IP laws can change for the digital age. This helps artists get fair payment and also keeps music easy to access and affordable for everyone.
Aditya Kevin
Christ (DEEMED TO BE) University