ABSTRACT
Copyright, as the name suggests, means that people cannot copy the work or creation of the author. Ideas and facts are in the public domain, so no one can claim copyright on them. One of the main tests for originality is the Idea Expression Dichotomy, which states that authors cannot claim copyright on ideas, but they can claim copyright on their way of expression. Their expression should be unique and involve some creativity in their work.
India is a multicultural nation with different traditions, cultures, and religions. However, Indian culture has always placed a strong emphasis on music, from ancient to modern times, which is typically associated with film music. Copyright consists of bundles of rights that authors have on their work. The need to copyright work has arisen with the growth of the music industry, to prevent others from copying and to sustain the originality of the composer’s work. Under the Copyright Act, there are two types of licensing: compulsory and voluntary licensing. Although the IPR regime is not very strong in India, the concept of licensing helps prevent infringement. In the present paper, the author will briefly explain about the importance and need for licensing, rights related to music, and its impact on the music industry.
Keywords: –Music Rights, Compulsory Licensing, Copyright Law.
INTRODUCTION
Copyright is defined under section 14 of the Copyright Act[1]. Copyright is the combination of two words, “copy” and “right”. “Copy” simply means to create a duplicate or the same version of some work, and “right” is a kind of power that is given by the law or statute to the people to exercise. Various definitions exist for copyright. According to the Black Law Dictionary, the word copyright is the inclusion of several rights, such as the right to produce and reproduce copies of their work, the right to sell copies of original work to the public, and the right to transcript, imitation, etc[2]. Therefore, copyright is known as the bundle of rights, which is categorized into three categories, i.e., economic rights, neighbouring rights, and moral rights. These rights are further classified into different categories. Also, copyright is called a negative right because it provides a monopoly to the author for their work. The copyright owner has the sole right over their creation, and no one can reproduce or use their work without their permission. If someone uses that work without permission, then it leads to infringement, and the author can sue that person for different subject matters like literary, dramatic, etc which were mentioned under section 14 of the Copyright Act, 1957[3]. India is a multicultural nation where different traditions, cultures, and religions are followed. However, Indian culture has traditionally placed a strong emphasis on music, from ancient to modern eras, which we typically associate with film music. In the music industry, licensing under the Copyright Act has become a critical tool for rights holders to commercialize their works and generate revenue. Licensing under the Copyright Act is a legal mechanism that allows rights holders to use their copyrighted works for a certain time. Music licensing encompasses a broad range of activities, which include a variety of economic rights like the right to reproduction, distribution, perform, display, and adapt musical compositions and sound recordings. In the music industry, licensing can be essential for artists to earn income from their works.
RESEARCH METHODOLOGY
The researchers have adopted a doctrinal method and secondary sources for the research in the following research paper. The research has been conducted through secondary sources such as case laws, legal databases, statutes, online websites, research papers, reports of renowned authorities, etc.
REVIEW OF LITERATURE
The issue of licensing under the copyright act and its impact on musical rights has been a subject of debate and discussion in recent years. Licensing under the Copyright Act is a complex issue that has a significant impact on musical rights. Many scholars and researchers have explored this topic, providing valuable insights into the various challenges and opportunities associated with licensing in the music industry.
One of the key challenges associated with licensing is the difficulty in determining fair compensation for creators and rights holders. This literature review aims to provide an overview of the recent court rulings that have redefined licensing and its impact on musical rights in India. Further, the author will explain this with the help of the case, Tips Industries Ltd. v. Wynk Music Ltd. (2018), which is one of the important cases where the Bombay High Court ruled that music streaming services were required to pay higher royalties to rights holders. This case demonstrated the importance of balancing the interests of creators and licensees and the need for clear and transparent licensing agreements.
Another important issue in licensing is the growth of digital streaming services and their impact on the music industry. Overall, licensing under the Copyright Act is a complex issue with significant implications for musical rights. While licensing can provide valuable revenue streams for creators and rights holders, it also poses challenges related to fair compensation, transparency, and bargaining power. Future research in this area may explore potential solutions to these challenges, as well as the evolving role of digital streaming services in the music industry.
LICENSING
Chapter VI of the Copyright Act, 1957 outlines the provisions related to Licensing. According to the act, a license is defined as the transfer of an interest in a copyrighted work to another person. The person who receives the interest is known as the licensee[4]. The act further categorizes licensing into two types: voluntary and compulsory licensing. Voluntary licensing occurs when the copyright owner grants permission to a licensee to use their work. This type of licensing is negotiated between the parties involved and is not mandated by the law. On the other hand, compulsory licensing is a statutory license that grants permission to use copyright work without owner permission which is granted by the government. This type of license is granted in certain situations where the use of the work is deemed to be in the public interest, such as for educational purposes or the production of essential goods. License allows other people also to use the copyrighted work along with some restrictions. A license can be provided for both present and future copyright work.
Moving Forward, it is pertinent to note here that from the license only the right to use the property is transferred, it doesn’t mean the transfer of ownership. Section 30 to 32B of the copyright act specifically deals with the license and different types of licenses. A voluntary license refers to the license which is given by the owner of work to any other person to use that work exclusively. It can be in a variety of forms, including implicit license, exclusive license, sole license, and co-exclusive license[5]. On the other hand, the compulsory license which is also known as statutory license gives the other person freedom/opportunity to use the copyrighted work without the requisite permission from the owner. Further, it also provides some rights related to that work. Section 31[6] of the act states the compulsory licensing of copyright work which is in the public domain. License is granted for a certain period after the completion of that time, other people can’t use that work, and his actions amount to infringement.
The main objective of the license is for the public at large to provide copyrighted work accessible to them with certain restrictions. But it is pertinent to note that the work should be used with Bonafide intention and in a fair manner. The copyright act grants protection to the work of authors, creators, artists, producers, and so on to profit from the fruits of their labour and innovation. The registrar of copyrights may issue a compulsory license in situations where the owner of the copyright is unwilling to part with their creation. In these situations, the work is made publicly accessible. A compulsory license plays a very important role in providing access to work for academic purposes also. In cases of unpublished work where the author of the work is no more and died before publishing then that work can come under the category of the public domain with the help of compulsory licensing.
MUSICAL WORK
Section 2 (p)[7] of the Copyright Act, 1957 defines musical work. 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 the music”. So, this act also grants copyright protection to musical work. Now a question arises who is the author of the musical work? So, in general, the composer should be the author in relation to any musical work and as per the provision of this act section 2(d)(ii)[8] also states that “the composer is known as the author of the musical work”. Moving forward, section 2 (ffa) [9]defines who is a composer in relation to musical work. So, A composer is “the person who has composed the music regardless of whether he records it in any form of graphical notation”. Further, section 22[10] talks about the time period of copyright in musical work. So, for musical work, copyright protection is given for the lifetime of the author + 60 years. Moving Forward, the Copyright Act also provides several rights to music creators and rights holders, for their work which include:
- Right to reproduce and distribute copies of work;
- Right to make derivative works based on the original work;
- Right to communicate with the public;
- And lastly, right to display and perform the work publicly.
The rights of creator of a copyrighted work are granted automatically upon creation and last for a limited time, which is generally the lifetime of the creator + 60 years. This duration applies to all types of copyrighted works, including literary, dramatic, and artistic works.
IMPACT OF LICENSING ON THE MUSIC INDUSTRY
The music industry has undergone significant changes over the past few decades, largely driven by technological advancements and disruptive business models. Licensing has become a critical tool for artists and record labels to monetize their creations in a digital age where music piracy and illegal downloads have become widespread. Through licensing, rights holders can ensure that their creations are used legally and earn a fair amount of compensation for their use. Further, the Copyright Act grants creators several rights to the author in relation to their works, like right to reproduce, distribute, and perform their music, as well as to create derivate works based on their music. Licensing allows creators to exercise these rights and ensure that their works are not used illegally. In cases where infringement occurs, copyright owners can seek legal action and claim damages for the breach of their rights.
Moving forward, licensing provides a number of advantages for composers and music publishers. The first is that licensing gives individuals control over how their music is utilized, which is crucial for upholding the validity of the composition. An artist might object if their music is utilized in a commercial for a product, they don’t believe in. They can negotiate the conditions of use and make sure that their music is used in a way that adheres to their ideals via licensing, which enables them to do so. Second, especially in the digital era, licensing can be a substantial source of money for musicians and music publishers. It can be challenging for musicians to generate income from their music through traditional record sales given the rise of streaming services. Licensing gives an additional cash source because they can negotiate royalties for the usage of their music in films, ads, and video games. Moving forward, licensing helps to improve the visibility of performers and music publishers by exposing their music to new audiences. For example, if a musician’s song is featured in a popular film or television show, it can improve their awareness and lead to greater sales and bookings for live performances.
It is pertinent to note that one of the most significant impacts of licensing on the music industry is the revenue generated by licensing fees. According to a recent report by the International Confederation of Societies of Authors and Composers (CISAC), global royalties for music creators reached $10.2 billion in 2019, up from $9.6 billion in 2018. According to the report, the majority of these royalties were generated by licensing agreements, which included licenses for film, television, and commercials. Furthermore, licensing has facilitated the development of new music business models. Nowadays, many streaming services, such as Spotify and Apple Music, rely significantly on licensing arrangements with rights holders to offer their consumers with access to millions of songs.[11]
In conclusion, licensing under the Copyright Act is essential for the use and dissemination of music. It allows music creators to earn income from their work, enables the widespread use of music in various contexts, and provides some restrictions on the rights of copyright owners as well.
CHALLENGES AND ISSUES OF LICENSING
Although licensing under the copyright act has significantly impacted the music industry, but it has also presented a number of difficulties and problems. The difficulty in obtaining music licensing is one of the biggest obstacles. Numerous parties, such as the composer, lyricist, music publisher, and record label, may claim various rights to a specific musical composition. This fragmentation can make it difficult to negotiate licensing agreements, which can cause delays or even make it impossible to obtain the required licenses. For independent musicians who do not have enough resources to negotiate, it becomes a time-consuming and complex process for them. individual license agreements. Some musicians may choose to work with a licensing agency, but this can come with additional fees and may limit their control over how their music is used.
Moving forward, the terms of a license agreement may also be difficult to negotiate. Musicians may have to compromise on the scope of use or the amount of compensation to secure a license. This can be particularly challenging for new or independent artists who may not have the bargaining power of more established musicians. concludingly, there is a risk of exploitation in the licensing process. Musicians and music publishers may be offered low fees or unfavourable terms by companies who know that they are in a position of negotiating power. There might be a situation when they feel that they were not compensated properly for their work, particularly in cases where the licensee is making significant profits from the use of the music. This can lead to situations where musicians feel like they have to accept unfavourable terms to make any money from their music.
Another is related to Territoriality. Due to the territorial nature of copyright rules, a license granted in one nation might not be recognized in another. In order to utilise a specific piece of music, one may need to get licenses from many nations, which might provide difficulties for global music producers and users. Further, sometimes there are chances that Licensees will use the music in ways that are improper or outside the parameters of the license. This can lead to legal action and damage to the reputation of the music creator. Consequently, licensing under the Copyright Act for musical rights has many advantages but also a number of problems that need to be carefully addressed and managed by both music creators and licensee.
JUDICIAL TREND ON COPYRIGHTS RELATING TO MUSICAL RIGHTS
The judicial trend on copyright relating to musical rights has evolved and varies across different jurisdictions. However, some general principles have emerged, such as the importance of protecting the rights of music creators while also promoting the public interest in access to music. The Copyright Act of 1957 provides the legal framework for the protection of musical rights. The Act grants protection to different subject matter, like musical works, sound recordings, and performances. Over the years, Indian courts have interpreted and applied this law to several cases involving musical rights.
One notable case is the IPRS v. Sanjay Dalia[12], which dealt with the issue of licensing music. In the present case, the Indian Performing Rights Society (IPRS) sued a hotel owner for playing copyrighted music without obtaining a license. The honorable court held that the hotel owner had infringed the copyright of the music composers and the IPRS and ordered the hotel owner to pay damages. The court also emphasized the importance of protecting the rights of music creators and the need for event organizers to obtain licenses before using copyrighted music.
Moving Forward, in India, sound recordings have been given copyright protection since 1999. Before that, only the underlying musical work was protected. In Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey (1984)[13], the apex Court stated that sound recordings were not eligible for copyright protection under the Indian Copyright Act, 1957. It is pertinent to note that earlier sound recordings were not under copyright protection, but the Copyright Act was amended in 1994 to include sound recordings under copyright protection. This has allowed for greater protection of musical works in India.
Another important case is Myspace Inc. v. Super Cassettes Industries Ltd.[14], which dealt with the issue of online copyright infringement. The honorable court held that the website Myspace infringed the copyright of Super Cassettes Industries Ltd. by allowing its users to upload copyrighted music without permission. The court ordered Myspace to remove the infringing content and pay damages to Super Cassettes Industries Ltd. The court also emphasized that the platforms have a duty to ensure that they do not host infringing content and that they should take down infringing content promptly upon receiving notice from copyright owners.
Further, in the case of Tips Industries Ltd. v. Wynk Music Ltd. (2018)[15], the Bombay High Court held that online music streaming services are required to obtain licenses from copyright owners before streaming their music. The court also clarified that streaming music without a license amounts to copyright infringement.
Overall, India’s judiciary has tended to preserve the exclusive rights of copyright holders while simultaneously acknowledging the value of fair use and weighing the interests of all parties concerned. As technology continues to evolve and new issues arise, Indian courts will likely continue to shape and refine the laws related to Intellectual Property Rights.
CONCLUSION
Licensing under Copyright Act is helpful in protecting the rights of musicians and facilitating the functioning of the music industry. It ensures that authors are paid fairly for their work and provides a framework for the legitimate use of copyrighted materials. Nevertheless, there are still issues that need to be resolved, like ensuring that licensing agreements are fair and transparent and enforcing copyrights in the digital age.
To sum up, licensing under the Copyright Act is a crucial component of the music business. However, the digital age has created new challenges regarding the protection of musical rights. In order to handle new issues and keep up with technological developments, the Copyright Act must be continuously revised. The issues that now exist must be taken into account in order to create better solutions to enhance licensing processes and methods as the music industry continues to develop in the future. In the end, the sustainability and expansion of the music industry depend on a strong and efficient licensing regime.
Author
Nishika
University of Petroleum & Energy Studies
[1] The Copyright Act, 1957, § 14, No.14, Acts of Parliament,1957 (India).
[2] Bryan A. Garner (ed.), Black’s Law Dictionary, West -Thomson Reuters, U.S.A. (6th ed.- 1990), p.843.
[3] Mrs. Runa Mehta Thakur, How to Judge the Infringement of Copyright: An Analytical Study, M.D.U. Law
Journal 2006, 11(2); Pages 135-140.
[4] Yashika Joshi, A Detailed Note on Licenses By Owners Of Copyright, IPleaders, (9 Feb 2023, 12:30 PM), A Detailed Note On Licenses By Owners Of Copyright – iPleaders
[5] Shreyamanjari12, Understanding The Concept Of Licensing Under Indian Copyright Law, legal service India ( 10 Feb 2023, 10:30 AM), Understanding The Concept Of Licensing Under Indian Copyright Law (legalserviceindia.com).
[6] The Copyright Act, 1957, § 31, No.14, Acts of Parliament,1957 (India).
[7] The Copyright Act, 1957, § 2(p), No.14, Acts of Parliament,1957 (India).
[8] The Copyright Act, 1957, § 2(d)(ii), No.14, Acts of Parliament,1957 (India).
[9] The Copyright Act, 1957, § 2(ffa), No.14, Acts of Parliament,1957 (India).
[10] The Copyright Act, 1957, § 22, No.14, Acts of Parliament,1957 (India).
[11] Ifpi, https://www.ifpi.org/ifpi-issues-annual-global-music-report (last visited on 10 Feb 2023).
[12] IPRS v. Sanjay Dalia and Anr. (2015) 10 SCC 161.
[13] Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey 1984 AIR 667, 1984 SCR (2) 664.
[14] Myspace Inc. v. Super Cassettes Industries Ltd. (2017) 236 DLT 478 (DB).
[15] Tips Industries Ltd. v. Wynk Music Ltd., Commercial IP Suit (L) No. 114 of 2018.