Copyright and 'Fair Dealing' in the Music Industry

With the turn of the century and the onset of a new digital era, there have been few laws as pervasive among the general public as copyright law. With the advent of the internet and the mercurial rise of popular culture invading every aspect of our being, there has been an increased reliance on utilising the original work of others for marketing manoeuvres or as inspiration behind creating new work. However, the popular discourse around copyright is often remiss in emphasizing upon its rigid and technical nature of copyright, especially in India and it is pertinent for creators and entrepreneurs to understand the full scope of the law so as to not get sued for copyright infringement.

A copyright confers upon the owner of the work a ‘bundle of rights’ which protects the owner’s interest in the work by protecting their rights pertaining to reproduction, communication, adaptation and translation of the work. Such protections seek to ensure that creativity is not stifled by allowing creators to be the primary financial beneficiaries of their original work and generally continues for the entirety of the owner’s lifetime as well as an additional sixty years post their death. As stated in Section 63 of the Copyright Act, 1957 transgressing these rights can result in imprisonment ranging from six months to three years as well as well as a fine starting from Rs 50,000 and going up to Rs 2,00,000 or even higher in certain exceptional circumstances.

This is in addition to several civil remedies that emanate from copyright protection laws such as the right to seek injunctions and damages for infringement. In Sanjay Soya Pvt Ltd vs Naraynai Trading Company the Bombay High Court stated that the copyright does not have to be registered in order to enforce these rights, although, it helps the judicial process move along smoothly if a dispute arises as it acts as evidence. Judicial pronouncements as well as statutory amendments have ensured that India keeps pace with international standards when protecting the copyright of Indian work as well as foreign work as India is a signatory to the several international organisations such as the Berne Convention, Universal Copyrights Convention, World Intellectual Property Organisation and the Agreement on Trade Related Aspects of Intellectual Property Rights.

What is work? – Understanding Protection of Rights Within the Music Industry

Any literary, dramatic, musical or artistic work would fall under the ambit of ‘work’ under Section 13 of the Copyright Act, 1957. However, this Act only protects the tangible expression of work and not mere ideations of originality in these areas. Under this Act, a musical work includes any ‘graphical notation’ of the music, that is, a physical manifestation of the musical work, such as traditional sheet music which has been written down on a piece of paper, is required in order for it to be protected, however, it need not be confined to traditional forms of musical notation.

It is pertinent to note that songs are not covered under musical work but rather under sound recording which also provides protection to podcasts, speeches and other audio clips. These sound recordings are only protected by law for a period of sixty years (from the date of publication). In addition to this, performers have additional rights, which have been elucidated upon in Section 38 of the Copyright Act, which provides performers with exclusive rights over the performance and the manner in which it may be used and reproduced.

But this does not mean that a performer necessarily has a copyright over the song or music itself. A song is made up of several different components which often involve the labour and expertise of several people. Therefore, a lyricist will have copyright over the lyrics of the song, a composer will be hold copyright over the musical notation, the singer may have performers rights and the producer often has copyright over the sound recording. Therefore, when applying for copyright the owner will have to present a No Objection Certificate (NOC) from other authors such as the lyricist, producer, and composer and only when the Registrar is satisfied that there is no dispute will the copyright be registered.

The Fair Dealing Doctrine

Since the purpose of copyright law is to promote creativity and innovation, the law has been allowed to develop in a manner which balances the rights of owners as well as those who seek inspiration from the work of others. In pursuance of this principle Section 52 of the Copyright Act was drafted which enumerates actions that do not amount to copyright infringement. Fair use allows a person other than the original creator of the work to reproduce a small portion of the work. However, it is impermissible to replicate the work in a manner which limits the owner of the copyright from marketing it or if an essential feature of the original work is utilised. Since the fair use exemption is provided to encourage the general public to create without being burdened by restrictions, people are not allowed to blatantly plagiarise the work of another, rather, they must use it to create something transformative – therefore, it is crucial that a person applies their own skill and labour in order to create something novel using the copyrighted work.

But the way fair dealing works in India is very different from the American “fair use”. While the purpose of both is the same, in USA, the fair use is mostly left to the judge to decide, giving her more discretion. In India, the Act lays down specific areas and circumstances in which a person may use the defence of fair dealing. Section 52 of the Copyright Act provides this exhaustive list of exceptions to copyright, and while facts and circumstances do play a major role in the decision, they are not the primary consideration during adjudication.

The US judiciary, on the other hand, devised a four-factor test which can be applied to any action to test for infringement. While the Indian method allows people to have a better understanding of what is permissible, thereby reducing multiplicity of litigation, the US method is better to incorporate newer developments in the field of technology and broadening the scope of the doctrine. However, the Indian courts have utilised the various factors given in Civi Chandran vs Ammini Amma while adjudicating upon copyright cases, the only caveat is that the exception must already be present in the list provided in Section 52 of the Act.

Fair Dealing and Music

The Copyright (Amendment) Act, 2012 was hailed as a cure for copyright holders and especially those in the music industry. Pursuant to the addition of Section 31C to the Act, even a cover of an original song must follow stringent guidelines, although these are amenable consequent to negotiations with the artist. Additionally, as has been stated by the Delhi High Court, a cover of an original song does not warrant a copyright of its own. Moreover, a version recording cannot make any alterations to the existing musical composition or lyrics – if it does so it will be considered a remix rather than a cover, although there is no definition of the word ‘remix’ in the Copyright Act. The duties owed by someone who makes a remix of the song and markets it are the same as someone who markets a cover of the song and both will be considered an adaptation of the copyrighted material.

Singers also have an “inalienable right to receive royalty” if a clearance certificate is not obtained by bars and restaurants when playing the music performed by these singers. Therefore, restaurants and shop owners must be particularly careful to of obtain such requisite certificates when establishing their business. Similarly, using music to promote a small business via social media may or may not be fair dealing, - although this is largely dependent on the platform. An app like Instagram or TikTok, which has established licensing deals with record labels at the outset allowing you to use a wide variety of music provided by the audio library of the application, however, an app like YouTube does not allow you to use copyrighted music.

Indian Courts have attempted to balance the interests of both creators and the general public, however, with the increasing shift from traditional forms of artistic expression to a more digitalised era; times have changed and accordingly the law needs to change as well. The United States recently passed a Music Modernization Act to keep up with the changes in the industry and it is important that India look at the Copyright law through a modern lens as well. Laws such as statutory licensing, found in Section 31D of the Copyright Act, which were earlier required for licensing no longer serve their purpose in the digital sphere. Additionally, with an increase in content creators and young entrepreneurs, there is bound to be an increase in litigation. A Tribunal which deals exclusively with copyright infringement claims would help streamline the process and help promote speedier access to justice. Therefore, India should work towards amending its laws in order to make it suitable for contemporary standards and at oar with the present international calibre.

This post is written by Prakriti Rai, law student at Jindal Global Law School and member of the LEC Blog team.