term paper_musical work
TRANSCRIPT
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Term PaperSubmitted in partial fulfillment of
paper no. L.M- 1018
(Intellectual and Industrial
Property Laws- I)
Presented by: AJAY NARWAL
Roll no. : 21
LL.M 1st
Year
( 3 Year Course )
FACULTY OF LAW, UNIVERSITY OF DELHI
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Copyright Protection
In
Musical Work
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Introduction:
Copyrightis mans inherent right over his intellectual property which emanates from
human mind and assumes tangible form-Literary, Artistic, Musicaletc. Copyright is a
monopolistic right to reproduce work and for certain works a right of public performance.
Copyright is the exclusive right given by the law for a certain term to an author,
composer etc (or his assignee) to print, publish or sell copies of his original work.1
An artistic, literary or musical work is the brainchild of the author, fruit of his labor and so
considered to be his property. So highly it is prized by all civilized nations that it is
thought worth of protection by national laws and international conventions.2
Law relating to Copyright in India is incorporated in The Copyright Act, 1957.
The objectof copyright is to encourage authors to create original works by rewarding
them with the exclusive right to reproduce the work for a limited period and to prevent
unauthorized reproduction and exploitation of his work by others.
It is in essence a negative right of preventing copying of physical material.3
Subject matter of copyright: Copyright subsists in a work i.e. some tangible form.
Work means and includes a musical work.4
1Oxford English Dictionary.
2Chinnappa Reddy, J in Gramophone Co. V. Birendra Bahadur Pandey. AIR 1984 SC 667 at Pg 676.
3Copinger on Copyright, 11
thedition.
4Sec 2(y) i of The Copyright Act, 1957.
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Musical workis defined as a work consisting of music and includes any graphical
notation of such work but does not include any words or any action intended to sung
spoken or performed with the music.5
An essential ingredient of a musical work is that it be sensed by the human ears but
mere sounds are not necessarily music. Music is that which is regarded by a reasonable
body of persons as music, as to which evidence would be admissible, or that which is
reasonably regarded by the composer as being music.6
According to sec 13(a) of The Copyright Act, 1956 (hereinafter referred as the Act),
copyright subsists in original musical work. Here original work refers to work which is
originated from author and not a copy of others work. To decide whether a given
musical work is original work, one must see whether sufficient skill or labor has gone
into it to make it protected under the act.
To be entitled to copyright there must be novelty and originality in the work of music.
But the musical piece, to be original, need not be absolutely new production; so, a new
arrangement of an old piece may be the subject of copyright, if it is more than a mere
copy with variations; the new composition must indicate exercise of inventive genius as
distinguished from mere mechanical skill or change.7
Things like tempi and phrasing can form part of musical work provided that they are
sufficiently certain and can be appreciated by human ear.8
Any adaptation of an existing musical composition in which a certain amount of skill and
5Sec 2(p) of The Copyright Act, 1956.
6Copinger and Skone James on Copyright By Kevin Garnett, Gillian Davies. & Gwilym Harbottle. 15
thedition. (2008).
7Arnstein v. Edward, etc, Music Corporation, (1935) 27 U.S.P.Q 127.
8Copinger and Skone James on Copyright By Kevin Garnett, Gillian Davies. & Gwilym Harbottle. 15
thedition. (2008).
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labor has been employed in its creation will amount to original musical work and a new
copyright will come into being.9
It is not necessary for musical work to be copyrightable that it should possess musical
merit. A musical work need not be written down to enjoy copyright protection, there no
such statutory requirement. But some form of fixation is required as an evidence of
authorship.
Owner of copyright of in musical work:
For a right to be protected there must be someone holding those rights i.e. there must
be an owner of the right.
In case of copyright in musical work the provisions regarding the owner are incorporated
in Sec 17, 2(d) ii & 2(ffa) of the Act.
Sec 17 says,
17. First owner of copyright.-Subject to the provisions of this Act, the author of a work
shall be the first owner of the copyright therein
Provided that-
(a)..............................
9Lals Commentaries on Law of Copyright by Dr. G.S.Karkara, M.L.Chpara & Justice Gyanendra Kumar. (1986).
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(b) subject to the provisions ofclause (a), in the case of a photograph taken, or a
painting or portrait drawn, or an engraving or a cinematograph film made, for valuable
consideration at the instance of any person, such person shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein;
(c) in the case of a work made in the course of the author s employment under a
contract of service or apprenticeship, to which clause (a) or clause (b) does not apply,
the employer shall, in the absence of any agreement to the contrary, be the first owner
of the copyright therein;
Sec 2(d) ii says,
(d) "author' means,-
(ii) In relation to a musical work, the composer;
And Sec 2(ffa) says,
(ffa) "Composer', in relation to a musical work, means the person who composes the
music regardless of whether he records it in any form of graphical notation;
After reading the three provisions together one can say that firstowner of the copyright
in a work is the authorof the work which in the case of a musical work is the
Composer.And Composer is a person who composes the music regardless of
whether he records it in any form of graphical notation.
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Where, however the work is composed in the course of employment undercontract of
service the employer will be the first owner.10
A contract of service is not same as the contract for service. In a contract of service
there is an employer-employee relationship whereas in a contract for service there is
employer independent contractor relationship. In the former case the copyright with
respect to work of employment rests with the employer but in the latter case the
copyright vest with the independent contractor.
The copyright in a work done by an employee in his private time and not in the course of
employment is in the employee.
11
The reason behind it is that when a work is produced
by someone under an employment then such work is part of duty assigned to him.
In a contract of service the employer influences a sufficient degree of control over the
employee with respect to a given work viz. what should be done? When it should be
done? And how it should be done? Etc. On the other hand in a contract for service the
control by employer is least or none at all.
The expression in the absence of any agreement to contrarygiven in proviso (b) & (c)
of Sec 17 of the Act implies that a composer can have copyright in his work done even
under a contract of service by providing terms in the contract to such effect.
Example: When a film producer commissions a musical work for remuneration, he gets
the right to incorporate the music in his film and all other rights connected with the film.
The composer, however, retains the copyright in the work in all other respects. In the
10Sec 17 proviso (c), the Copyright Act, 1957.
11Copyright and Industrial Designs By P Narayanan, 2
ndedition, (1995)
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given case authorship differs from ownership in the sense that here the author is the
composer but the first owner of the work is the employer who hired the composer.
Rights conferred by copyright in musical work and protection of these rights:
When a person creates an original musical work then he becomes the owner of various
rights in respect to that work by virtue of copyright in that work. These various rights are
incorporated in Sec. 14 (a) of the Act. And what is protected by the copyright act is
infringement of these very rights of the owner of copyright in a given musical work or
any other person who has acquired any or all of the rights by license or assignment.
The provisions regarding infringement are incorporated in Sec 51 of the act. These
rights and their infringement are closely related terms as there can be infringement only
where there are rights. So for this reason we will study the two headings i.e. rights and
infringement side by side.
Now Sec. 14 (a) says about the rights which are conferred on an owner of copyright in
musical work (apart from literary and dramatic works) under the Act. It is as follows:
14.Meaning of copyright.-For the purposes of this Act, "copyright" means the
exclusive right subject to the provisions of this Act, to do or authorize the doing of any of
the following acts in respect of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic ormusical work, not being a computer
programme, -
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i. to reproduce the work in any material form including the storing of it in any
medium by electronic means;
ii. to issue copies of the work to the public not being copies already in circulation;
iii. to perform the work in public, or communicate it to the public;
iv. to make any cinematograph film or sound recording in respect of the work;
v. to make any translation of the work;
vi. to make any adaptation of the work;
vii. to do, in relation to a translation or an adaptation of the work, any of the acts
specified in relation to the work in sub-clauses (i) to (vi);
These rights are exclusive rights but as provided in the sec, are subject to other
provisions of the act. Being a property rights these rights can be sold or licensed and
from the point of view of the owner also he need to know that which are his rights in
respect of his work by virtue of copyright in it. Protection is granted against the invasion
of these exclusive rights by a person other than the owner of copyright in a particular
work.
Exclusive rightmeans the owner of the copyright has the sole right to exploit the
work and further he has right to exclude all others from reproducing his work without his
permission.
to do or authorize the doing of: These rights are economic rights which can be
exploited by the owner of the copyright in the given work for economic gain, by himself,
with the exclusion of others or the owner may license or assign these rights to any other
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person for a consideration to exploit the same. But protection is provided to these rights
if any person exploits rights without the authorization of the owner.
Such license or assignment can be given of all or any one or all of the acts provided in
Sec. 14 (a) in respect of the work or any substantialpart of it. Here word substantial
part construed depending on the quality of work and not the quantity of it.
Now Sec 51 of the act says about the infringement of copyright in a given work. It is as
follows:
51. When copyright infringed. -Copyright in a work shall be deemed to be infringed-
(a) when any person, without a license granted by the owner of the copyright or the
Registrar of Copyrights under this Act or in contravention of the conditions of a license
so granted or of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the
owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the
public where such communication constitutes an infringement of the copyright in
the work, unless he was not aware and had no reasonable ground for believing
that such communication to the public would bean infringement of copyright; or
(b) when any person-
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or
offers for sale or hire,
or
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(ii) distributes either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India,
any infringing copies of the work
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any
work for the private and domestic use of the importer.
Explanation. - For the purposes of this section, the reproduction of a literary, dramatic,
musicalor artistic work in the form of a cinematograph film shall be deemed to be an
"infringing copy".
So this section tells us about the infringement of copyright in a musical work. When a
person has a copyright in a musical work and any other person produces or reproduces
the work or any substantial part thereof in any material form, he commits an
infringement of copyright. In order to constitute infringement it is necessary that a
substantial or material part is copied.
Copyright in a work is deemed to be infringed when any person, without license granted
by the owner of copyright does anything, which is the exclusive right to do conferred by
the Act upon the owner of the copyright.12
It is not necessary that the alleged infringement should be an exact or verbatim copy of
the original but its resemblances with the original in large measure is sufficient to
indicate that it is a copy.13
12Fateh Singh Mehta v. O.P.Singhal, AIR 1990 Raj 8.
13R.G.Anand v. Delux Films, AIR 1978 SC 1613.
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So a copyright in a musical work is protected from, infringement by person who has no
right conferred by Sec 14(a), in such work.
A combined reading of sec 14(a) i with sec 51 give us an overview of rights which are
protected under copyright in a musical work. So now we will take these rights and
infringement in respect of them one by one.
a) Reproduction: [clause (i) of sec 14 (a)]. The first exclusive right in respect of a
musical work is right of reproduction. In respect of a musical work reproduction
means substantial copying of the musical notations. Broadly, reproduction means
copying. Such reproduction can be in any material form including storing the
work in any medium by electronic means viz. storing in discs, reproduction in
form of record or cinematograph film etc.
There is a reproduction if one makes a substantial use of the features of the
original work in which copyright subsists.
While deciding whether substantial part of a musical work has been copied one
has to see whether the alleged infringement has made use of a substantial part
of skill, labor and taste of the original composer. A relative short part can amount
to substantial if what has been taken is the vital or essential part of the work. 14
Reproduction in copyright law means copying and a copy is one which so near to
the original as to suggest original to the mind of the spectator.15 Reproduction
does not mean only an exact reproduction but includes any copy of work which
may be considered as the infringement of copyright therein.
14Copinger and Skone James on Copyright By Kevin Garnett, Gillian Davies. & Gwilym Harbottle.15
thedition.(2008).
15Mohendra Chundra v. Emperor AIR 1928 Cal 359.
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What amounts to reproduction in material form depends upon the nature of the
work and the importance of the matter copied or reproduced.
So if reproduction of a musical work is done without the authorization of the
owner or licensee/assignee of copyright in such work than there is infringement
of copyright in such work.
b) Issue copies of the work to the public or communicating it to the public:
Second right under Sec 14 is Right ofPublication. For the purposes of this act
m
aking a work available to the pu
blic by issu
e of copies
orby commu
nicating it
to the public means and constitutes publication.16 Here both issue of copies
[under clause a(ii) of Sec 14] and communication to public [under clause a(iii) of
Sec 14] constitutes publication so we will try to understand both under this part.
y The right ofissue of copies is also called as distribution right. This
means act of first release in market of any particular copy of the work
including the original. It does not apply in the case of copies already in
circulation because of the fact that there is no restriction on reissuing of
those copies by a person who has lawfully acquired them.
Copies of a work are issued to the public when they are exposed for sale
even though no member of the public received it until sometime later.17
The work is first published when it is first put on offer.
Sec. 4 of the act says that, except in relation to infringement of copyright,
a work shall not be deemed to be published, if published without the
16Sec. 3, The Copyright Act 1957.
17Copyright and Industrial Design By P.Narayanan.
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license of the owner of the copyright. This sec. makes it clear that there is
an infringement of the copyright in musical work if it is made available to
the public without the proper authorization of the owner.
y "Communication to the public"means making any work available for
being seen or heard or otherwise enjoyed by the public directly or by any
means of display or diffusion other than by issuing copies of such work
regardless of whether any member of the public actually sees, hears or
otherwise enjoys the work so made available.18
Such communication may be made by means of satellite or cable or any
other means of simultaneous communication to more than one household
or place of residence including residential rooms of any hotel or hostel.19
So if a musical work is communicated publicly without proper authorization
of the owner of copyright in such musical work than there is infringement.
Here it is important that the work should be made available to the public. It
is not necessary that the public should avail themselves of the work i.e.
actually buys the copy or see or hear it.
This exclusive right relates only to communicating the work to public and
not to private audience so communications of such work for private (non
commercial use) use is not communication to public and hence no
infringement of copyright.
18Sec 2(ff), The Copyright Act, 1957.
19Explanation to Sec 2(ff), The Copyright Act, 1957.
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c) Performance of the work in public:[clause (iii) of sec. 14(a)]. This is third
exclusive right provided under Sec. 14 of the act.
While deciding whether a particular work is performed in public the following
factors has to be considered:
a) Whether there is any injury to the owner of the copyright by virtue of such
performance.
b) What is the character of the audience?
What is intended to be protected by this exclusive right is the value of the
authors invention. Any performance which is not domestic or quasi domestic will
be regarded as in public even if only a few members of public are present or that
no charge for admission was made.
If the audience is one which the owner of the copyright could fairly consider as
part of his public then performance is in public.20
In a private performance the audience does not enjoy the work under the
conditions in which they would normally pay for the privilege.
This exclusive right is confined to performance of the work in public which shows
that a copyright owner cannot prevent others from performing the work in private.
Thus a musical work can be performed in private by anybody without
infringement.21
20Turner v. Performing Rights Society (1943) Ch. 167 at Pg. 172.
21Mellor v. Australian Broadcasting Corp, (1940) 2 All ER 20 at Pg. 23.
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Performer' includes an actor, singer, musician, dancer, acrobat, juggler,
conjurer, snake charmer, a person delivering a lecture or any other person who
makes a performance;22
And "performance", in relation to performer's right, means any visual or acoustic
presentation made live by one or more performers;23
Here the word performance is defined only in relation with the performers rights.
In relation to a musical work a performer can be a musician and a performance
by him can be of his musical work constituting melodies and harmonies.
Performance by teachers and pupils in school are, in general, not performance
in public.24
The question whether a performance is in public may be approached by inquiring
whether or not the act complained of as infringement would, if done by the owner
of the copyright himself, have been an exercise by him of statutory right
conferred upon him. The words public must be construed primarily in the light of
the relationship of the audience to the owner of copyright and not in the light of
relationship of the audience to the performers.25
Performance in public without the consent or license of the copyright owner of
the work is an infringement of copyright in that work.
22Sec 2(qq), The Copyright Act 1957.
23Sec 2(q), The Copyright Act, 1957.
24Halsburys Laws of England, 4
thEd. Vol. 9
25Jennings v. Stephens, (1936) Cp. 469.
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The proprietors of a factory, to increase efficiency and output, relayed music from
gramophone records to their 600 employees. The court if appeal held that the
music was being performed in public.26
The music which was broadcast over radio was played through a loudspeaker in
a private room adjoining a public restaurant in such a manner that the music was
clearly audible to the public in restaurant. This arrangement was held to be a
performance in public constituting infringement.
d) Adaptation of thew
ork:[clause vi of Sec 14 (a)] adaptation is provided in Sec.
2(a)iv & v, with respect to musical work as;
a) "adaptation" means,-
(iv) in relation to a musical work, any arrangement or transcription of the work;
and
(v)in relation to any work, any use of such work involving its re-arrangement or
alteration;
Copyright subsists in arranging music by adding new harmonies, new rhythms
and transcribing it for a different musical force.27
Transcribing in relation to music is defined as arrangement of a musical
composition for some instrument or voice other than the original.28
26Turner v. Performing Rights Society, (1943) Ch. 167.
27Intellectual Property By W.R.Cornish. 2
ndEdition.
28Websters Collegiate Dictionary.
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Indian music is written down in terms of swaras in particular notation. A new
arrangement of composition may result when a composer try to change the
swara structure.29
So, if a person rearranges or transcribes or alters a given musical composition
without authorization or license of the owner of copyright in such work than he
infringes the copy right in such work.
e) Translation of the work:[clause (v) of Sec. 14 (a)]. This is another exclusive
right of the owner of copyright in musical work.
If copyright subsists in original work then reproduction or publication of the
translation without the consent or the license of the owner of the copyright in
original work will constitute infringement.
f) To make any cinematograph or sound recording in respect of the work:
[Clause (iv) of Sec 14(a)]. If a person uses a musical composition while making a
cinematograph film or a sound recording without the authorization of the
copyright owner (composer) than he infringes the copyright of such composer.
But situation will be different if such composer is under employment of such other
person (viz. producer etc.), in such case the first owner of the copyright will be
that other person. And in such situation if a third person wants to make use of
such composition in his work than he will have to take permission of such
producer before doing so.
29Copyright and Industrial Design By P.Narayanan.
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g) to do, in relation to a translation or an adaptation of the work, any of the
acts specified in relation to the work in sub-clauses (i) to (vi);
[Clause (vii) of Sec. 14(a)]. According to this provision a copyright owner of a
musical composition which is a translation or adaptation of another work can
exercise all the above discussed rights in relation to it.
Remedies against such infringement:
There are three types of remedies against the infringement civil, criminal and
administrative.
(i) Civil remedies include injunction,damages and accounts, delivery of
infringing copies, and damages for conversion.
(ii) Criminal remedies provides forimprisonment of the accusedorimposition
of fine or both or both, seizure of infringing copies and delivery of
infringing copies to the owner of copyright.
(iii) Administrative remedies consists ofmoving the registrar of copyright to
ban the import of infringing copies into Indiaanddelivery of infringing
copies confiscated to the owner of copyright.
Conclusion:
So, from above discussion it is clear that the Act provides a variety of rights to
the owner of copyright in musical work as a fruit of the skill, labor and innovation
he invested in such work. Today copyright is serving various industries apart
from musical industry. And in todays competitive environment and ever growing
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musical industry the importance of protection of copyright in musical work has
immensely increased. And to protect these rights the statute provides various
safeguards as discussed above. And with the piracy of such musical work on all
time high it deem necessary also to provide statutory protection to the owner of
the copyright in such work.
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References:
y The Copyright Act, 1957.
y Carter, Ruck & Skone James. Copyright Modern Law and Practice. London. Faber
&Faber. (1965).
y Cornish, W.R. Intellectual Property. Delhi. Universal Law Publishing Pvt. Ltd. (2003).
y Garnett, Kevin, Gillian Davies, & Gwilym Harbottle. Copinger & Skone James on
Copyright. London. Sweet & Maxwell. (2008).
y Karkara, Dr. G.S, M.L.Chopra and Justice Gyanendra Kumar. Lals Commentaries on
Law of Copyright. Allahabad. Law Publishers. (1986).
y Khosla, G.D. Know Your Copyright.
y Narayanan. P. Copyright and Industrial Designs. New Delhi. Eastern Law House. (1995)
& (2003).
y Oxford English dictionary.
y Sighal. The Copyright Act, 1957.
y Websters Collegiate Dictionary.