Copyright Laws in India vis-à-vis Music Industry

By Nickkita Shome-

INTRODUCTION: -

In India, the concept of ‘copyright’ prevails since 1847. However, there was no legislation under this concept till 1914. Afterwards, some modifications have been made to this legislation such as the inclusion of criminal punishment in case of copyright violation and widening the scope of ‘copyright’ as a ‘sole right’ wherein the owner or author of original work has the right to reproduce, change, produce or publish a translation of work and thus, this same legislation of 1914 has been continued in 1957 which was then known as the Copyright Act, 1957. This Act governs all the Copyright laws in India. Before the formation of the Act of 1957, the said Act of 1914 was prevalent, which was an extension of the British Copyright Act, 1911.

Later on, in 2012, the Parliament passed the Copyright (Amendment) Bill, 2012 which aimed at bringing the Indian copyright laws to the international level and in accordance with the World Intellectual Property Organisation (WIPO) treaties such as the WIPO Copyright Treaty (WCT) and the WIPO Performance and Programme Treaty (WPPT). The changes brought by the 2012 amendment were:

1. Amendments in the right to artistic work like cinematograph films & sound recordings.

  1. Amendments in compliance with WCT and WPPT.

  2. Amendments in the mode of a grant of license and assignments.

  3. Safeguards against internet piracy. [1]


For instance, under copyright law, any owner, creator, author, composer, or any authorized person has the right to reproduce his or her original work. He can either sell or can distribute it in different formats like CDs or cassettes. Copyright Act is imposed in different fields.

DIFFERENT FIELDS WHERE COPYRIGHT LAW IS IMPOSED: -

· Copyright in Literary Works –

This field covers newspapers, magazines, journals, computer programs, software, dictionary meanings, and other non-dramatic textual works. They all are known as literary works that are copyrighted. Their owners are known as creators or authors. For example, if someone writes a research paper and then publishes it in a journal then, he or she has the copyright of that particular paper he or she is the author of the paper.[2]


· Copyright in Dramatics –

This field includes dance, opera, dramas, screenplays, etc. and their owners are the composer, choreographer, or dramatist. For example, when a YouTuber uploads his or her signature steps in a dance, they have the copyright of that particular signature dance step as it is their choreographic work and thus, it is protected under the Copyright Act, 1957. This is so because choreographic works are a part of Dramatics. [3]

· Copyright in Cinematograph Films –

This field includes visual recordings, sound recordings, etc. which all are protected under copyright laws. In the case of films, during the Pre-Production period, i.e., when the films are not yet released, the scripting, casting, crewing, shooting schedules, finding locations, rehearsal, etc. needs legal protection so that no one could copy them. Furthermore, during the Post- Production period, i.e., when the films have been released, the broadcasting rights and the reproduction rights, also need legal protection. Therefore, the entire filming procedure is protected by the Copyright Act, 1957.[4]

For example, in the case of Shree Venkatesh Films vs Vipul Amrutlal Shah,2009[5] the respondent was accused of copying the story of the Bollywood Blockbuster, Namaste London in a Bengali Film, ‘Poran Jaye Joliya Rae’ in 2009. The copyright to the script and screenplay of Namaste London was owned by Vipul Amrutlal Shah who filed an appeal in Calcutta High Court, seeking an order of injunction against the exhibition of Poran Jaye Joliya Rae. The respondents stated that even if the story was similar to the Hindi Film, there were several scenes in the Film that are ‘novel to Bengali cinema’, and are altered and different, and hence the Bengali film is by itself an original work.

The Calcutta High Court later held that there is a prima facie infringement of its story and screenplay in the original Film and passed an ad-interim order granting an injunction on the exhibition of the latter film. This order was appealed before a two-judge bench of the same court but was denied.


· Copyright in Sound Recordings –

Various sound recording constitutes song which can be with or without music, like podcasts, or audios or speeches. These all are also included within the purview of copyright laws and the author or owner of the sound recording is known as the producer. For example, the podcasts and audios present in ‘Spotify’ are all copyrighted.


· Copyright in Musical Industry –

In effect, musical work constitutes music which is the combination of graphical notations that represent music through visual symbols. The author of the musical work is known as a composer. We can see a lot of remixes happening these days in Bollywood. By taking an example of the “Masakali” song, we can observe that this song which was first released in 2009, sung by A. R. Rahman, was again released in 2020 as “Masakali 2.0”, sung by Tanishk Bagchi and in this case, neither the producer nor the singer took the permission from the original composer or singer. Though the first song was protected under Copyright Act still, no strict actions were taken due to the lack of enforcement mechanism in India. Moreover, due to the absence of strong machinery, producers often re-make any song which they like without taking proper permission. Likewise, a number of cases of copyright infringement are present in Bollywood. As per Section 17 of the Copyright Act, the composer, being the author of a musical work, is the first owner of copyright in it, unless certain conditions exist. As per provision (c) to the section, if a work is made in the course of employment under a contract of service and there is no agreement to the contrary, it is the employer who would be the first owner and not the author. So, in the case of a musical work made under a contract of service with a producer, the producer would be the first owner of copyright in the composition and not the composer (unless agreed otherwise). [6]

For example, it was alleged that the “Pandey Ji Seeti” song of the ‘Dabangg’ film has been inspired by the “Chalat Musafir” song of the film ‘Teesri Kasam’. Priyanka, the granddaughter of late lyricist Shailendra Singh, who composed the earlier song, alleged that the tune is being copied. Priyanka insists that the credit should go to ‘Teesri Kasam’ and music directors Sajid-Wajid should not claim the tune to be theirs. [7]


Is Remixing Music Legal?

In Copyright Act, the word ‘remix’ is not defined. Usually, in any remix song, the former is always slightly changed, i.e., in the lyrics, some new words are added and some words are omitted. Moreover, new beats are also added. For example, the “Tamma Tamma” song in the film ‘Badrinath Ki Dulhania’. In this song, the lyrics are almost the same as the original song. However, some modifications were made like the rap of Badshah was included, some beats were changed, and some words were added and deducted from the lyrics as well. Thus, the original song formed a new remix version with all these modifications. Therefore, the remix is considered a novel creation, and just like other songs, it should also get equal protection.

Scenarios in which remixes are allowed: -

Any person who is interested to remix any song has to follow some necessary procedure. They are –

1. Prior notice of intention- The person who wants to remix has to give prior notice of his intention to the original composer.

2. Royalties paid in advance- The person also had to pay some royalties to the original composer in advance, i.e., he has to pay some charges to him for using his song.

3. Right to Inspect books of accounts – The original composer will have the right to inspect all the books of accounts related to the original song.

4. Remix to be launched after two years of the making of original work.


The most recent copyright infringement took place when Punjabi rapper Badshah created his song “Genda Phool” without giving due credits to the original composer. He first claimed that his song was inspired by a Bengali Folk song but he missed to pay royalties to the real man behind the song, singer-songwriter Ratan Kahar, whose “Boroloker Biti Lo” inspired him to create his song. [8]


Tenure of copyright against each song: -

The copyright laws against each song have a specific tenure that is the lifetime of the author and sixty years after his or her death. Only up to this period the Copyright will be valid.


CONCLUSION: -

According to S.51 of the Copyright Act, 1957, if any person without obtaining the license from the owner of original work, or without paying royalties to the person, makes any remix songs, then, it would be considered as Copyright Violation. Otherwise, it would be considered Legal.

The government needs to make some amendments, though having strict Copyright Laws. The reason behind this is that firstly, the provisions related to the Proper Statutory Licensing System”, i.e., the process of obtaining the license for making or launching any remix version of the song, are yet to be made better. Secondly, nowhere it is mentioned that how much it is to be paid as the royalties which have to be paid to the original owner. Because of this, the original makers get very less amount in most of the cases.

According to my opinion, people try to remix or recreate something which has been popular in earlier times and I must say that this motive succeeds in most of the cases. Even sometimes, the former becomes more hit and popular than the earlier one but the only problem which lies in this regard is that at times people do not tend to accept that their particular art has been inspired by something and thus, they forget to give the due credits to the original minds behind that creation.



References- [1] Music-industry-copyright-law-in-India, https://blog.finology.in [2] Copyright Protection in literary work, Book, scripts, screenplay, novels, lyrics, Legal Service India https://www.legalserviceindia.com [3] What is copyright in dramatic works, University of Melbourne, https://copyright.unimelb.edu.au [4] Cinematograph-Films, http://www.legalserviceindia.com [5] Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah, 2009 SCC Online (Cal.) 2113 [6]Masakali-2-0-unconsented-song-remakes-and-ownership-of-copyright, Spicyip, https://spicyip.com [7] Bollywood_news/dabangg-2-pandeyji-salman-khan-tangled-in-an-allegation-of-copyright/ https://businessofcinema.com [8] Copyright-infringement-of-boroloker-biti-lo-song-by-badshah-s-genda-phool-sectional-analysis-of-copyright-act-1957-and-similarity-therein, http://www.legalserviceindia.com


Author- Nickkita Shome

Semester II, B.A.L.L.B.

Amity University Kolkata

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