EVERYTHING ABOUT PROTECTING YOUR CREATIVITY UNDER INDIAN COPYRIGHT LAW

Copyright in Music, Artistic and Literary works in India

Copyright is a form of intellectual property having protection under Indian law to the creators of original works of authorship such as literary works, dramatic, musical and artistic works, cinematographic films and sound recordings.

Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original means, that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. However, one should obtain a registration for a better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.

Copyright In Music Industry and Cinema

Music is a form of art that is tangible and intangible. Copyrighting a song can protect the rights of the creator and copyrighting a melody can ensure the privileges of the maker and help them monetarily as well. But the music copyright landscape is notoriously complicated. There are different copyrights for different parts of a musical work, with copyright ownership and royalties split between artists, songwriters, labels, and publishers. Then, there is various middleman, from collection agencies to distributors, that facilitate the collection of royalties on behalf of rights holders.

What is music copyright?

Music copyright gives legal ownership of a musical composition or sound recording. This ownership includes exclusive rights to redistribute and reproduce the work, as well as licensing rights that enable the copyright holder to earn royalties.

Basic procedure of copyrighting music:

1. The first thing is to record the song in a manner which is tangible
2. Register for an account at the copyright office or website
3. Paying the registration fee
4. Submitting the copy of the song to the council
5. The final step is to wait for the registration to be processed, these are the basic     general steps that has to be followed

Two types of music copyright:

1. Composition
2. Master recording

• Composition

The compositional copyright covers an underlying musical composition: the arrangement of notes, melodies, and chords in a specific order. It is held by songwriters, lyricists, and composers, and managed by their music publishers.

• Master Recording

The master copyright covers the specific sound recording, or “master recording,” that contains a particular expression of the underlying musical composition created by performing or recording artists. This copyright is held by the performing artists and, typically, their label.

When are copyrights created?

• For compositions, the copyright is automatically created when music or lyrics are recorded, put on paper, or otherwise written down in a document
• For master recordings, the copyright is created as soon as “a sound recording is fixed, which means that when the sounds are captured in a medium from which they can be perceived, reproduced, or otherwise communicated”.

Term of copyright

The copyrighted work is protected for the term of sixty years. In the case of original literary, music, artworks the sixty-year period is counted from the year following the death of the author.

Registration and Infringement of copyright:

When any person uses the copyrighted work of another person without their permission or by any other means then it is said to be infringement of copyright which is a crime under Indian legal system. The punishment for infringement of copyright may extend to imprisonment of up to three years and the accused will also be liable to fine of up to two lakh rupees.

The registration is not mandatory but when issues arise in the court according to infringement or more than that we can use, it as prima facie evidence in a court of law with reference to dispute relating to the owner of the copyright. This registration will serve as important evidence so that the case will be in favour of the real owner.

Copyright in Cinematography and sound recordings:

Cinematography

“Cinematograph film” is defined as any work of visual recording produced through a process of producing a moving image by any means and includes a sound recording accompanying such visual recording including any work which is the result of any similar process of recording and also a video film.

In the copyright legislation of the “co-authors” enjoy the copyright of cinematographic works and, the content of the cinema which include the story, music etc are not considered part of the audio-visual work. In India courts have been in favour of allowing the cinema which is only inspired from other protected works to be non-infringing, the law of infringement of copyright revolves around the concept of substantial taking/copying. Thus, if the defendant can prove that the copying is not substantial and his treatment of the work is different from the way plaintiff has treated the work no case of infringement is proved.

A cinematograph film may be taken of a live performance, like sport events, public functions, or dramatic or music performance or it may be based on the cinematograph version of a literary or dramatic work. In the latter case if the corresponding literary or dramatic work is copyrighted the making of the film will require the consent or license of the owner of the copyright in the literary or dramatic work since that copyright includes the right to make a cinematograph film. Similarly if the film has a sound track recording of music the producer will have to obtain the consent of the verse writer and the song writer if copyright subsists in them.

Effect of Censorship:

Where any offence has been committed by the owner of a cinematograph film has under the law relating to film censorship and he is liable to prosecution for that offence, the question arises whether it would affect his right to copyright in the film. Since the subsistence of copyright depends only on the provisions of the Copyright Act it would appear that the fact that the owner has not complied with the film censorship requirements will not affect the subsistence of copyright in the film or the enforcement of remedies against infringement.

Copyright of artists in films:

Copyright protection is available only to the cinematograph film including the sound track, the cine artists who act in the film are not protected by copyright law for their acting. The actors or performers in the film are conferred certain special rights called Performer’s Rights provided under section 38 of copyright act. Since a film includes performance by various actors, dancers and so on, their permission is required to film their performances. This is usually done by separate contracts with the performers.

Sound Recordings

Recordings of such sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are reproduced are known as sound recordings and copyright exists in such sound recordings. Copyright will not subsist in any sound recording made in respect of literary, dramatic or musical work, if in exist in the making the sound recording, or that copyright in such work has been violated or infringed. The right of sound recording is different from the subject matter recorded as they are the subject of independent copyrights. The author of a sound recording is the producer. Thus copyright in the recording of music is separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. Where the song has not been written down and the composer who is also the performer records the song two copyrights come into existence at the same time, one for the music and one for the sound recording.

Under Section-52A of the Copyright (Amendment) Act 1984, the following particulars should be displayed on sound recording or video films or video cassettes, as the case may be, or any container thereof namely:

(a) The name and address of the person who has made the sound recording

(b) The name and address of the owner of the copyright in such work

(c) The year of its first publication.

Copyright in Literary Work

For the protection of literary work, it may or may not be of literary quality, literary work does not require literary merit to be registered. What is the precise amount of the knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon his composition in order to acquire copyright in it, cannot be defined in precise terms. The words literary work cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word ‘literary’ seems to be used in a sense, somewhat similar to the sue of the word ‘literature’ in political or electioneering literature, and refers to written or printer matter.

Copyright in a book:

Under the Copyright Act, 1957, in Sections 13 and 45 the registration of book with the Registrar of Copyrights, is a condition for acquiring copyright with respect to it. Copyright in a book is only secured if it is an original creative compilation and is duly registered under the Copyright Act and once it is registered, the author is deemed to acquire property rights in the book. Upon the registration of a book, civil or criminal remedy can be raised by the author upon infringement. Hence, without registration the author can have no rights, nor remedies given the fact that his work is an original creative work.

Copyright and adaptation of literary work:

Any such work which requires alterations and rearrangement is said to be adaptation. Copyright can be done in the original adaptation of another literary work, because the adaptation itself can be a literary work. The conversion of the work into a dramatic work by performing it in public or otherwise, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical is said to be adaptation in relation to literary work.

Copyright and abridgment of literary work:

An abridgement of an author’s work means a statement designed to be complete and accurate of the thoughts, opinions and ideas by him expressed therein but set forth much more concisely in the compressed language of the abridger. A genuine abridgement of a literary work is an original work and can be the subject of copyright. A publication, the text of which consists of a number of detached passages, selected from an author’s work, often not contiguous but separated from those which precede and follow them by considerable bodies of print knit together by few words, so as to give these passages the appearance of a continuous narrative at the time of reprinting is not an abridgment. It only expresses in the original author’s own words, some of the ideas, thoughts and opinions set forth in his words.

To abridge is to preserve the substance, the essence of the work in language suited to such a purpose, language, substantially different from that of the original. To make such an abridgment requires the exercise of mind, labour, skill and judgment brought into play, and the result is not mere copying.

Copyright and translation of literary work:

The process of converting the content from one language to another is known as translation. A translation of a literary work is itself a literary work and is entitled to copyright protection, if it is original and the author has expended sufficient labour and skill on it. If copyright subsists in the original work then reproduction or publication of the translation without the consent or licence of the owner of the copyright in the original will constitute infringement.

Copyright in soft wares

In India the Copyright Act, 1957 grants protection to original expression and computer software is granted protection as a copyright unless it leads to a technical effect and is not a computer program per se. In India, computer software does not form the subject matter of patent as it does not fulfill the requirement for an invention which is provided under the Indian Patent Act in conformity with the provision of TRIPs, Berne Convention, WIPO Copyright Treaty etc.

For a copyright protection, computer software needs to be original and sufficient effort and skill must be put into impart it originality. But a program which only generates multiplication tables or algorithms may not suffice the degree of effort required for protection. Apart from being original not copied from elsewhere, the work should be first published in India or if the work is published outside India the author on the date of publication or if the work is published outside India the author on the date of publication or if the author is dead at the time of his death should be a citizen of India

Infringement of computer software:

Infringement of copyrighted software is called Software piracy. Software piracy is the reproduction, distribution or use of a software product without the expressed permission of its author. Software piracy is theft – stealing someone else’s original idea and product.

Section 51 of the copyright act defines infringement of copyright and states that a person infringes copyright of another if he commits any unauthorized act which only the copyright folder has exclusive rights to do. Civil and Criminal remedies to copyright infringement s are provided in chapter XII of Copyright Act, 1957 granting injunction and damages for copyright infringement etc. abetment of infringement is also unlawful and punishable with imprisonment of upto three years and a fine up to Rs.2,00,000/-. A person who knowingly uses the infringing copies of Computer software commits a criminal offence punishable with imprisonment for not for not less than seven days extendable up to three years and a fine not less than Rs.50,000/- which may extend to Rs.2,00,000/-. Section 62 of the Copyright Act, 1957 entitles a Plaintiff to file for a suit for injunction against infringements within District Court of the jurisdiction where Plaintiff resides or carries on business or works for gain.