Term Paper_musical work

8/7/2019 Term Paper_musical work

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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.

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Term Paper_musical work