Safeguarding Musical Work
December 28, 2022
Biswajit Sarkar - IP Law Firm India
Post time: 10:30 am
Introduction
Music is an artistic work which falls into the purview of copyright protection. Nowadays, music lovers can easily stream music. Even restaurants, bars and lounges play music to entertain guests, either through hiring DJs or by playing music through sound systems. However, if such streaming of copyrighted music is done without obtaining license from the copyright holder, then it amounts to copyright infringement.
Copyright Infringement in music
Copyright infringement disrupts the exclusive right of the copyright holder, who is usually the music producer in the case of musical works, to gain commercial benefits from their copyright protected works. Copyright involves the exclusive right to reproduce and distribute the original work. Through licensing of the copyrighted work, the exclusive rights to reproduce and distribute are transferred to the licensee who pay royalty to the licensor i.e, the original owner of the work, for using his work, commercially. Hence, licensed broadcasting of copyrighted music does not give rise to copyright infringement. Only when the economic rights arising out of copyright protected musical works are exploited by someone other than the owner of the work or someone not sanctioned by him, it leads to copyright infringement.
In the case of Super Cassettes Industries Pvt. Vs. Prime Cable Network, the plaintiff has business of producing and marketing music cassettes, CDs etc. The plaintiff extended his business and earned revenue by licensing the copyrighted works it owned to FM Radio services, television operators, television broadcasters and multi-system operators (MSO). The defendant no 1 i.e, Prime Cable Network had broadcasted or communicated to the public copyrighted musical works, sound recording etc, belonging to the plaintiff without any license and so the plaintiff sent them legal notice asking them to get a license to broadcast the works belong to the plaintiff as broadcasting them without license causes copyright infringement. However, the defendant no 1, Prime Cable Network continued to broadcast infringing works on their television channel without paying heed to the plaintiff. Hence, the plaintiff filed a copyright infringement lawsuit against them. The plaintiff presented the recordings of their copyrighted works being broadcasted in the defendant’s television channel as evidence in front of the Delhi High Court. The Court granted a permanent injunction in favor of the Plaintiff and also directed the defendants to pay damages.
Exceptions to copyright infringement
Exceptions are provided by the Copyright Act, 1957 in order to allow some uses of copyrighted works that do not qualify as copyright infringements. According, to section 52 educational purposes, research or criticism are all fair use and do not attract copyright infringement. If a performance is arranged by a school in its premises where the students will put up a musical performance for their teachers and fellow schoolmates, then it will be covered under the fair-use exception of the Copyright law. Even using a legal music streaming service to listen to music on your own phone and in your own house or in a private setting does not attract copyright infringement.
Besides the economic rights provided by copyright, there are moral rights also provided to the copyright holder. India is a signatory to Berne Convention, and Article 6bis of this Convention provides for protection of moral rights which are also known as the paternity rights of the author or creator of the copyrighted works. In India, Section 57 of the Copyright Act, 1957 provides for moral rights. These rights stay with the creator of an original work protected under the copyright law even when other rights are transferred to someone else as they are provided in order to protect the work from being damage, mutilation and distortion. Hence, in case of musical work if someone tries to alter the work or make a remixed version of the copyrighted work, which will cause the work to be modified, they infringe the moral rights of the original creator of the musical work. As this kind of modification has the potential of harming the original creator or author’s reputation and so making such changes without his consent amounts to infringement of the moral rights arising out of copyright. Mannu Bhandari V. Kala Vikas Pictures Pvt. Ltd. And Others, was the first case where it was cleared up that moral rights also exist with respect to audio and visual works hence, bringing musical works in its purview. The original creator of the work is entitled to claim damages from the defendant in cases where moral rights of the copyright holder has been infringed.
Conclusion
From the above discussion it can be established that when an original work which is a copyrightable subject matter, is being communicated to the public without any authorization from the original owner then it will attract copyright infringement. Since DJ play music for a remuneration or restaurants play music to entertain paying customers, they have to enter a licensing agreement with the copyright holder of the musical work they use in order to prevent being sued for copyright infringements. Even if a small part of the copyrighted music is taken without a license specifically a Public Performance License under the Copyright Act, 1957 and performed or played in a public space then it can amount to copyright infringement.
