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SYMBIOSIS LAW SCHOOL, PUNE.

ANUKRITI RANDEV

B.A L.L.B DIV: B

PRN NO.: 17010125106


SUBJECT: IPR
TOPIC: INFRINGEMENT OF COPYRIGHT IN MUSIC
ABSTRACT

Since decades the Indian music has been a quest of originality which is one of the most
important elements of any musical composition. This originality based on creativity and
innovation can be protected under the law as a copyrightable work. As technology has started to
develop in the recent times especially in the music industry we have come across a lot of
instances of ‘copyculture’ in India. Many high-profile music directors get away with copyright
infringements in India very easily. The ‘sweat and the brow’ doctrine is being followed here in
legal spirit however the same is not being implemented hence the musical industry faces one of
the biggest challenges in the recent times of that of implementation of the true spirit of the
legislations present to protect copyrights on music in India. With a sentiment of not considering
plagrism in musical world immoral in the contemporary world there is a huge debate as to what
should be the extent of restrictions that are required to be imposed in order to create a balanced
approach towards both the music authors as well as the users.

This paper discusses about the current legal position, how the same is favoring or is against the
concerned parties and what possibly can be the solutions which can stop people as well as
current legal stance from infringing the rights of the copyright holders and causing loss to them.

KEYWORDS: COPYCULTURE, SWEAT AND THE BROW, COPYRIGHT INFRINGEMENTS, MUSIC

AUTHORS.
INTRODUCTION

Music is an art, which if you copy implies that there are no feelings involved in its inception. As
no two people in the world are the same, even music should be like that way.1
The Copyright Act provides copyright protection to various works, including original literary,
dramatic, artistic and musical works, cinematographic films, and sound recordings. 2 The
Copyright Act further grants exclusive rights to the copyright holder, authorizing the copyright
holder to reproduce, distribute, perform, and translate the work, among other rights.3
Section 2(p) of the Copyright Act, 1957 specifies 'musical work' means a work consisting of
music and includes any graphical notation of such work but does not include any words any
action intended to be sung, spoken, or performed with the music
Music is a unique genre in the field of copyright protection. It is a special category deserving of
independent copyright consideration. The inherent nature of music makes it difficult to detect
copyright violations.4 Each musical composition is composed of multiple elements working
together. New technology and the digital world have created new and improved means for
manipulating those elements in an original work and incorporating them into a totally new work.

Unauthorized derivative works and reproduction of copyrighted musical works is one of the most
frequent ways of copyright infringement in India. This problem even after the existing laws has
continued to grow in its magnitude. If we see the basis of the same it would not be wrong to
derive that that the Indian courts do not enforce the copyright laws thoroughly and the
public at large is hardly aware of their rights. Such infringements hamper creativity and
disregard the due credit that the owners and the authors of the original copyrights workers
deserve.5

Due the complexity of the matter of copyright in the field of music, we hardly find any
substantial discussions or effective rulings in favor of the aggrieved parties.6

1Nehaluddin Ahmad; Saurabh Chaturvedi, Originality Requirement and Copyright Regime of Music: A
Comparative Overview of Indian Perspective, 22 Info. & Comm. Tech. L. 132 (2013).
2 Smith v. Michael Jackson, 84 F3d 1213 (9th Cir, 1996).
3 Section 14, The Copyright Act, 1957.
4 Bridgeport Music, Inc. v. Dimension Films, 401 F. 3d 647, 653 (6th Cir. 2004)
5 Navdeep Kaur Tucker, Musical Copyright Infringement in Bollywood Music, Perspectives
on a Problem, 26 Ent. & Sports Law. 18 (2008).
6 Copyright Problems in India Affecting Hollywood and Bollywood, 26 Suffolk Transnat'l L. Rev. 295 (2002).
IDENTIFICATION

“It is not wrong to say that the sine qua non of copyright is originality.”7A two fold test is kept
in place to ascertain whether copyright has been infringed or not, which are:

 Substantial similarities in original and infringing work.


 Challenged work copy of original work.8
The word 'original' under Section 13 of the Copyright Act, 1957 does not imply any originality
of ideas, but merely means that the work in question should not be copied from some other work
and should originate from the author being the product of his labor and skill.9

COPYRIGHT IDENTIFICATION BY INDIAN COURTS

When it comes to music the requirement of originality is very candid. Songs need not be novel to
attract copyright protection, but they must reflect the composer's own contribution.
However, for the purposes of a musical work there is no requirement that it be recorded in
writing or notation. Although, if music is to be afforded copyright protection, it must satisfy the
requirement of fixation which is defined by Section 3(2) of the Act which states that 'copyright
does not subsist in music unless and until it is recorded, in writing or otherwise'.

In the case of Ram Sampath v. Rajesh Roshan & Ors.10 It was laid down that to identify if
there is an actionable infringement there are two factors which need to be identified:

1. The similarities and differences in the two works


2. If the other song can substantially exist without the copied part.
The court also said that it is imperative to look into the ‘catch part’ of the song, and if that is
copied as a whole then the same will surely amount to actionable infringement.
It was also held that just by using a small part of a song on the TV for a show does not amount to
copyright infringement per se.11 the idea behind the same was imparted to the fact that creativity
would end if even a few minutes of songs will not be allowed to be used.

7 Feist Publications, Inc. v. Rural Tel. Serv Co., 499 U.S. 340, 345 (1991).
8 Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002).
9 RupendraKashyap v. Jiwan Publishing House, (1996) PTC 439 (Del).
10 Ram Sampath v. Rajesh Roshan & Ors, 2009 (40) PTC 78 (Bom.).
11 Yash Raj Films v. India TV, 2013 (53) PTC 586 (Del)
MODIFICATIONS

VERSION RECORDING

Version recording as a concept has come into existence wherein creative changes are made in
existing Indian songs. They have been divided into 3 broad categories:

1. COVER VERSIONS
2. MEDLEYS
3. REMIX
Cover versions have become a new hit wherein a lesser known singer sings popular songs. The
only difference in such songs is that of the singer and the orchestra. 12 Medley on the other hand is
a musical selection, one or two minutes long arranged snippets of the original song. Remix being
the most recent entry to the list carries with it the adaptation of old tunes into a new arrangement.
These not so serious experiments which were undertaken by the music industry lead to huge
intensification of competition in the Indian music industry.
When for the very first time Cassettes were used to reproduce and distribute music this lead to
the change in the monopolistic nature of music production as such.13

Version recordings are so much in demand in today’s world because not only are they very
quickly reproduced but offer a much higher return as compared to the small amount of
investment that is placed on it. They offer a lucrative business idea but today if we see around us
it has become a very competitive market in itself.14

The existence of such modifications has sparked a new debate in the field of copyright as neither
do they directly fall within the ambit of actual copying of original work nor do they in anyway
benefit the original right holder. Such ideas have encouraged more people to get involved in such
practices and platforms like YouTube have further encouraged this side of the music industry to
prosper.

12 Super Cassette Industries vs Bathla Cassette Industries, IA No 1766/93 in Suit No 381 of 1993, decided on
September 9, 2003.
13 Arnstein v. Porter, 154 F.2d 464 (2d Cir., 1946).
14 Mars Recording vs the Gramophone Company of India decided on February 28, 2004 at the VIII Addl City Civil
Judge (CCH 15) (unreported).
LEGAL IMPLICATIONS

SECTION 52

Time and again it is seen that law is amended in favor of such a competition and the same is
always encouraged. In 1995 the Indian Copyright Act, 1957 was amended to include Section
52(1)(j). This provision allowed the entities to make adaptations of previous songs without
requiring waiting for the consent of the right holders. This provision read with Rule 21 of the
Copyright Rules allows the version recorder to send a notice within 15 days in advance of
recording.

To make it a more balanced right this is allowed only after 2 years of publication of the
original recording and a Royalty of 5% is fixed without any special importance being regarded
to its popularity or special history.

This particular provision has increased the number of litigations in the courts on the issues of
copyright along with a stark rise in competition.

The negative implications of such a thing can be underlined as follows:

1. The Moral Rights of the rights holder of the songs is violated. These rights prevent
distortion of the musical author’s work and protects their reputation.
2. A very short period of monopoly is allowed which deprives them of any Financial
Benefit based on the popularity of their songs. 2 years is not enough for the song to
actually reach its optimal sales level.
3. The amount of royalty paid is also extremely low. The financial benefit derived from the
adaptation is much more.
4. Hardly any checks are placed to check the quality of the work produced in the market.
5. There’s unequal sales tax.
6. Legal problems arising as there is – absence of fast-track courts, provision of compulsory
arbitration, statutory damages and appeals against acquittals.15

This provision has created a situation which gives the idea of Compulsory Licensing. This
whole concept not only defeats the idea of creativity based on which the whole copyright law
was introduced but also blurs the distinction between the original music author and the version

15 Rajlakshmi V. Nesargi, Copyright and Copyculture in Indian Music, Economic and Political Weekly, Economic
and Political Weekly, Vol. 40, No. 6 (Feb. 5-11, 2005), pp. 516-517, https://www.jstor.org/stable/4416162 (accessed
on 1st September 2019)
recorders as owners or authors. Through compulsory licensing the musical author is unable to
prevent distortion of songs which affects his own reputation.

Even in cases of litigation the burden of proof has been placed on the plaintiff wherein he is
required to establish infringement in the work and that they have incurred losses because of the
defendant’s activities.

SECTION 68

Section 68 (b) of the Copyright Act, 1957 provides de- minims punishment of one year that may
be extended with or without fine which is a very small penalty considering the magnitude of
financial and moral loss that the musical author has to incur because the violation of his rights. A
fine of maximum Rs.5, 000 can be imposed on the offenders by the Magistrate of Ist Class which
again is not adequate. (Section 70) such a provision makes the aggrieved having to appeal in the
Higher Court. In most of the cases appeal is made and this ends up delaying the process even
more and causing even more delay in provision of justice.

But we must not forget the fact that an artist starts by getting inspired from the others and
musical industry as such is all about getting discovered.

If we consider the other side the points that can be highlighted are:

1. Such methods promote new talents and allows people to get discovered.
2. Almost 2 years of a time period is provided before such a process can be undertaken
giving ample credit to the Musical authors.
3. All of the version recorders maintain their books of accounts and comply with all the
required formalities.

The court provides two basic remedies for copyright violations which are injunction and
damages as per the discretion of the court. Criminal offences are also created under the Act
including imprisonment and fines.

The Act also protects foreign works that countries mentioned in International Copyright Order
produce. This order safeguards works of nationals of countries included in the Berne
Convention, the Trade Related Aspects of Intellectual Property Rights Agreement ("TRIPS
Agreement"), and the Universal Copyright Convention. The Indian government set up the
Copyright Enforcement Advisory Council to review enforcement of the Indian Copyright Act
and to advise on measures for better enforcement. TRIPS Agreement makes sure that member
nations offer other members nationals the same way they would treat their own nationals when it
comes to IPR.
Article 14 of the Agreement specifically protects producers of sound recordings and the
performers.16 This provision as such provides a structure to the Indian law and allows them to
build the existing IP laws and enforce them in a better manner.

ANALYSIS

Even with the growing awareness there are still a lot of producers who are actually against the
2010 amendment. Another reason of concern regarding the amendment is that fact that the terms
like “equal rights” to lyricists and composers is vague and the method of division of royalties to
be paid in case of presence of a number of different owners is also not clearly defined.
Copyright infringements in India are considered as low priority cases by the courts and hence
they end up lasting for long period of time discouraging the concerned parties to actually apply
for copyright violations with the courts. What we require today is better systems to not only
protect the artists but also to establish international trust with other nations in terms of IPR as it
is majorly based on reciprocity.

I. STRICT PENALTIES ON HIGH-PROFILE INFRINGERS


16 Liz Robinson, Music on the Internet: An International Copyright Dilemma, 23 U. Haw. L. Rev. 183 (2000).
The rampant infringement of copyright in India can be credited to lack of proper implementation
of the Copyright Act. There is an enormous amount of backlogs of copyright cases as very little
importance is attributed to such cases by the court. Also the Indian film industry people for years
have copied foreign music relying on the anonymity and lack of accountability. However this
practice has largely been affected by globalization now because the anonymity that existed has
ceased to exist now. It is necessary to impose harsher and more stringent penalties to those who
commit such crimes. If the authorities went after the popular musicians who generate the most
profits from unauthorized derivatives, the public would understand the wrongs being committed.

II. Better Copyright Enforcement


The current setup needs to be implemented more responsibly. International guidance and support
is what is needed at the moment to be able to curb this situation of constant copyright violations
in the music industry. This industry as such is so vast and complicated that to cater to the ever
changing technology it is very important that the law constantly evolves with the evolving types
as well as mediums of music that is being produced in the country today. There needs to be a
better protection of domestic and international copyright. Both the creators as well as the owners
of the copyrights need to be aware of their rights and at the same time should be able to actually
get their rights enforced in the court of law effectively. The Indian Copyright Act establishes
Copyright infringement as a criminal offense, but ineffective enforcement of copyright
infringement and other IPR suits halts the process and also disregards the copyright holder's right
to have her day in court.17

CONCLUSION

During the young age I had always come across my parents saying how the songs in today’s
generation are all copied from the old songs and seeing the current scenario it is not wrong to say
that the same is true. Originality especially in the music industry has died.

17 Harini Ganesh, The Need for Originality: Music Infringement in India, 11 J. Marshall Rev. Intell. Prop. L. [i]
(2011).
Despite of the existing advisory board there is continuous violation of copyrighted musical
works. Even though India has tried time and again tried to protect domestic and foreign works
and created enforcement methods there is still a long way to go. India is still on the Special 301
“priority watch list “of USA because of the meager amount of protection imparted to protect
the Intellectual Property rights of the people.
There are many countries which have come a long way in improving their own hindrances in
terms of their IPR laws by basing their existing frameworks on the international standards.
Malaysia introduced specialized IP courts in their judicial system and formed a special task force
to create awareness. Similarly Taiwan has worked hard to get off the “priority watch list”. India
has the framework in place all that is needed now is better efforts to bolster the existing
copyright law.18

Through the 2010 amendment the share of royalties paid to the composers and lyricists has
increased and at the same time the Act now conforms to the international treaties which allow
their work to be protected abroad. There also an increase in the awareness of the people
especially in the top names of the industry who have started taking cognizance of such copyright
violations in the music industries.

If India follows the lead of other developing countries that have increased IPR protection and
enforcement, India can move itself off the United States' Special 301 "priority watch list."
Justice Krishna Iyer has rightly observed that universal protection of intellectual and aesthetic
property of creators of 'work' is an international obligation; each country in its law must protect
such rights whenever originality is contributed.19
It is high time that we rework the existing originality requirement for musical copyright by
raising the standard for originality but if the laws remain unchanged, we are going to be blocked
with the old songs and maybe it is time to do something new.it is not wrong to say that people
get inspired by the work of the other people and thence it is not wrong to say that today's
alleged infringers are tomorrow's artists who will be fighting for their rights as copyright
holders to original works. So continue balancing the competing interests of protecting the work
of a copyright holder and not stifling the creative process.

18 Ganesh, H. (2011). Comment, 'The need for originality: Music infringement in India'. The John Marshall Review
of Intellectual Property Law, 11(1), 171.
19 Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., AIR1977 SC1443
BIBLIOGRAPHY

A. JOURNALS
 Nehaluddin Ahmad; Saurabh Chaturvedi, Originality Requirement and Copyright Regime
of Music: A Comparative Overview of Indian Perspective, 22 Info. & Comm. Tech. L.
132 (2013).
 Navdeep Kaur Tucker, Musical Copyright Infringement in Bollywood Music,
Perspectives on a Problem, 26 Ent. & Sports Law. 18 (2008).
 Copyright Problems in India Affecting Hollywood and Bollywood, 26 Suffolk Transnat'l
L. Rev. 295 (2002).
 Liz Robinson, Music on the Internet: An International Copyright Dilemma, 23 U. Haw.
L. Rev. 183 (2000).
 Harini Ganesh, The Need for Originality: Music Infringement in India, 11 J. Marshall
Rev. Intell. Prop. L. [i] (2011).
 Ganesh, H. (2011). Comment, 'The need for originality: Music infringement in India'.
The John Marshall Review of Intellectual Property Law, 11(1), 171.
B. ONLINE SOURCES

 Rajlakshmi V. Nesargi, Copyright and Copyculture in Indian Music, Economic and


Political Weekly, Economic and Political Weekly, Vol. 40, No. 6 (Feb. 5-11, 2005), pp.
516-517, https://www.jstor.org/stable/4416162 (accessed on 1st September 2019)

C. CASES

 Smith v. Michael Jackson, 84 F3d 1213 (9th Cir, 1996).


 Bridgeport Music, Inc. v. Dimension Films, 401 F. 3d 647, 653 (6th Cir. 2004)
 Feist Publications, Inc. v. Rural Tel. Serv Co., 499 U.S. 340, 345 (1991).
 Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002).
 RupendraKashyap v. Jiwan Publishing House, (1996) PTC 439 (Del).
 Ram Sampath v. Rajesh Roshan & Ors, 2009 (40) PTC 78 (Bom.).
 Yash Raj Films v. India TV, 2013 (53) PTC 586 (Del)
 Super Cassette Industries vs Bathla Cassette Industries, IA No 1766/93 in Suit No 381 of
1993, decided on September 9, 2003.
 Arnstein v. Porter, 154 F.2d 464 (2d Cir., 1946).
 Mars Recording vs the Gramophone Company of India decided on February 28, 2004 at
the VIII Addl City Civil Judge (CCH 15) (unreported).
 Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., AIR1977
SC1443