WHOSE SONG IS IT ANYWAY!!

Digitization of copyright work is quite active and thriving in todays’ day and age with the scope and environment provided by cable television and satellite distribution of digital telecast programs. Every other day we see a mainstream or regional music album/individual song getting launched which gets streamed throughout the length and breadth of the nation, thus catching the imagination of a wide audience. Due to global digitalization these songs or music albums also get to cater to the international diaspora. Ownership and copyright of these songs thus becomes a contentious issue between the music composers, song writers and the music companies.

Copyright as an act in the case of artistic work, cinematograph films and sound recordings includes the right to store work in any medium by electronic or other means. The definition also includes the right to convert work from three dimensions into two dimensions and vice versa.

Earlier during the course of time lyricists and music composers had no right to royalty from the work which they did even if the work was being utilized in mediums other than cinematograph films. The same being fructified vide the judgment in Indian Performing Rights Society[1] where it was held that on the basis of Section 17(b) and 17(c) of the Copyright Act, 1957 the producer of the cinematograph film was the first owner of the copyright and no copyright subsists in the lyricist or the composer unless there is a contract to the contrary between them and the producer. This judgment has been used as a yardstick against composers and lyricists due to which profits and revenue earned were not shared and distributed, thus foregoing the advantages of commercialization and digitalization of the music and entertainment industry. However the amendment brought in later onwards in the Copyright Act, 1957 has corrected the same to a great extent with respect to the proviso brought in by the last amendment of the Copyright Act in 2012. Prior to 2012, the Copyright Act, 1957 has been amended five times.

The issue of royalty has been addressed to a great extent by the Copyright Act, 1957. Sections 17, 18 regarding ownership and assignment along with section 38 in reference to performer’s rights from the act are relevant for the same. There have been certain amendments in the above mentioned act in lieu of change in perception. There is news of another amendment in the act in the near future.

The producers vide section 18 of the Copyright Act, 1957 can be assigned copyright by the author of a literary, artistic or musical work. This can be done for both current and future modes of exploitation. However after the amendment in section 18 of the Copyright Act, 1957 an assignment made herein shall not be applicable to any medium or mode of exploitation which is not in existence at the time of the assignment unless the same is specifically mentioned in the assignment agreement. Another amendment in the section herein is that the producers of music, songs, etc. would share the exploited royalties equally with the script writers, lyricists and composers. Any action contrary to the same shall be void in law.

This amendment has helped authors to receive royalty for exploitation of the work which was not provided earlier to them. The provisions now in a new avatar have allowed agreements between the concerned parties to specify whether such assignments in relation to payment and sharing of royalties will apply in relation to commercial usage or not.

However although it is an earnest attempt to provide royalty rights to music writers, lyricists, etc. but there is no possible way to determine the share of royalty accrued from the lyrics of one song, in an entire film. For example computing the royalty on the basis of ratio of length of the song to length of a movie then all the songs together could entitle the music director and other authors to 8-10% of revenue of a movie which can run into several crores.[2]

Another important aspect which is to be kept under consideration is that for the storage of work which is only temporary in nature or transient in nature, an amendment in Section 52 of the Copyright Act, 1957 has come into effect which shall provide protection to such work which will be in the form of technical process of electronic transmission or/and communication or/and for providing electronic links, etc.

Section 18 of the Copyright Act, 1957 has also been amended to disallow the assignment of copyright in a manner which would allow the assignee to exploit the copyright assigned to it via unspecified ‘future technologies’ i.e. any medium or mode of exploitation of a work which did not exist or was not in commercial use when the assignment was signed.

Also vide section 38B of the Copyright Act, 1957 the performer of an act is entitled to claim identification of the performance so as to protect moral rights of the performer. Through this the performer can restrain or claim damages from any distortion, mutilation or other modification of the performance that which would be prejudicial to his/her reputation. However ‘fair use’ of the performance provides that mere removal of any portion of a performance for the purpose of editing, or any other modification of any kind done for pure technical reasons will not be deemed to be prejudicial to the performer’s reputation. Also under section 38A of the Copyright Act, 1957 the performer’s shall now be entitled for royalties in case of making of the performances for commercial use. The same has been provided vide amendment to the definition of a ‘performer’ in Section 2(qq) of the Copyright Act, 1957 by which only those performers credited in cinematograph films would be entitled to the performer’s right and to the right to integrity. All performers in cinematograph films, whether or not credited, however, are granted the right to integrity.

Copyright Act, 1957 vide the amendment has been brought in sync and in rhyme with technological advances of the world around. Due to the same the bandwidth of the definition of ambit and scope of reproduction right is wide enough to include storing of the work in any medium by electronic means. In lieu of the above sections 65A and 65B are inserted for digital rights management through the Copyright Act, 1957. So as to protect the rights of the copyright owners in the digital spectrum.

The amendments to the Copyright Act, 1957 have greatly extended the rights of the performers and broadcasting organizations, so as to bring down the unequal bi-partisan treatment meted out to lyricists and composers in the field of cinematography due to the prevailing practice in the entertainment industry. It is needed to be seen what major impact further amendments as being contemplated by the Government in the Copyright Act, 1957 will bring out for the lyricists, music composers and also music producing companies.

[1] (AIR1977 SC 1443)

[2] https://mowingthelaw.blogspot.com/2013/06/the-copyright-amendment-act-2012.html