Copyrights In India 101
Written by Achille Forler
Note: ‘Author’ is the generic term used in Copyright laws for ‘first owners of copyright’, such as lyricists, composers, scriptwriters, painters, photographers, etc.
“Without music, life would be a mistake.” (Nietzsche)
Artists, through their work, are the invisible companions of our inner life. Their work enriches our thought, deepens our emotions, and helps us know ourselves better. The degree of civilization of a society is measured by the freedom and the protection it grants to its artists.
Every original intellectual expression, irrespective of its aesthetic or artistic merit, is protected by copyright. A creative work may be banned, but no authority can deprive it of copyright because its ownership title is derived from the author himself and not from any external authority.
But any artist worthy of this name is doomed to an endless struggle with his inspiration, to promote his work, and to collect its fair commercial value from its users – often large corporations – who want to consume it for free. By nature, the artist is generally the least gifted to defend his rights.
Copyright has achieved the feat of overcoming these personal and commercial challenges by enabling the artist to flourish while benefitting Society. The model must be effective since it has taken root all over the world.
However, despite its proven benefits, the copyright system is little known and understood, starting with the authors themselves. So, anyone who looks to have a career in the music business should know its fundamentals: who owns what, how things work, and how to get fairly paid.
But how did it all start?
A brief history of Copyright
Copyright has always been the subject of a very bitter struggle. It was a massive ideological earthquake when the authors of the 18th century decided to make their activity a real profession by claiming control over their works. They broke a millennial tradition that rewarded the author with laurels (literally!) but kept him financially dependent on patrons – religious, political or business (booksellers, theatre owners, producers.) Few authors had the chance of having a personal fortune or being successful businessmen.
While the British Statute of Anne (1610) vested the copyright in the author, the US Federal Copyright Act of 1790 and the French Copyright Act of 1791 were the first modern laws on copyright.
Until the 18th century, no one could imagine that the copyright of a book could be anything else than the manuscript, sold by the author to the publisher. Philosophers of the European Enlightenment – Locke, Kant, Fichte – turned 5,000 years history of property law on its head. They produced the legal arguments that property cannot be limited to objects but extends to intellectual property. This new property is the result of an original intellectual effort, is immaterial – it is not the manuscript, it is not the music sheet -, and its title of ownership derives from the author himself.
Denis Diderot, the co-founder of the first Encyclopedia, neatly summed it up in 1763: “If the work of man’s intellect, the expression of his innermost thoughts, the deepest feelings of his heart, that most precious portion of himself, the one that immortalizes him, is not a property, then what else can be called property?”
It follows from this that publication is not a pre-requisite for copyright to subsist in a work; a copyright exists from the moment the work exists.
This term ‘Work’ has entered copyright law, which speaks of “Literary and Musical Works”, while Copyright Societies register a song as a Work.
It is no coincidence that the great movement for the collective management of copyright started with dramatic authors. They set up the first such Society in 1791, the French Society of Dramatic Authors and Composers (SACD), which exists to this day. Theatre was the equivalent of cinema today, and their works enjoyed far greater prestige than those of novelists. They could also demand true accounts because it was possible to know the income from a theatre show. In contrast, the sale of novels, like music until recently, was impossible to monitor.
In 1886, an international diplomatic conference resulted in the Berne Convention for the Protection of Literary and Artistic Works. Simply referred to as Berne Convention, it defines the minimum international standards of copyright protection for authors and extends their protection to the world: 1) that the works of author members of one CMO will be protected in the country of another CMO if both countries are signatories to the Berne Convention (Art. 5); 2) the right of reproduction (mechanical*) of their works “in any manner or form”; 3) Authors enjoy the right of public performance of their works (Art. 11).
* ‘mechanical right’ is a term that has survived the evolution of recorded music from mechanical rolls to vinyl records to CDs to digital, and means the right to reproduce, to make a copy whether physical or digital.
In 1961, the Rome Convention introduced the protection in the performance for performers, producers of phonograms, and broadcasting organizations.
The provisions of the Berne Convention and the Rome Convention were incorporated into the WTO Agreement (TRIPS, 1995) and WIPO WCT (1994) that extended the exclusive rights to on-demand, or interactive, digital services. Copyright is today a dominant factor in international economic relations.
THE MORAL RIGHT
Once the works of the mind were accepted as the expression of the personality of the author, it followed that the work had to be protected as much as the author, and to touch one was to touch the other. The concept of an intrinsic, and therefore unassignable, moral right was born.
This concept of intrinsic moral right of the author developed in the 20th century by creating new legal concepts: the right to freedom of expression, right of the human body, right to self-image, right to reputation, right to privacy. The recent European law on Data Protection and Privacy (GDPR, 2018), shows how the simple idea of copyright, born in the minds of some great thinkers of the 18th century, remains so pregnant and relevant today.
WHO OWNS A COPYRIGHT?
Creativity is the fuel that powers the copyright system, where various actors play different roles. All of them have rights, which may slightly differ according to the copyright legislation of their country.
– The Author, who creates a literary and/or musical work, or song. The Author is the source of all the creative industries. The copyright notice of a literary and musical work is the symbol ©, where ‘C’ stands for copyright.
Once the song exists, it is performed, recorded and communicated to the public by auxiliaries:
– The Performer designates the singer who performs the literary and musical work;
– The Producer designates the owner of the recorded performance of the work – i.e. the sound recording, or master – who communicates it to the public. The copyright notice of a sound recording is the symbol ℗, where ‘P’ stands for phonogram, i.e. the master.
The work of these auxiliaries enjoys exclusive copyrights, also called “related rights” or “neighboring rights”, as they are derived from the authors’ rights. A song can be recorded by hundred different performers, and these sound recordings can be owned by hundred different labels, but the publishing rights of all these recordings are owned by a single entity: the author or his publisher.
DURATION OF COPYRIGHT
In India, copyright of Literary and Musical Works “subsists until 60 years from the beginning of the calendar year following the year in which the author dies.” (Art. 22) In the case of a work of joint authorship (i.e. a song), of the author who dies last.
The term of copyright in sound recordings and cinematograph films subsists until 60 years from the beginning of the calendar year that follows the year in which the sound record or the film was first published. The term of copyright for the rights of performers is 50 years.
THE PUBLIC DOMAIN
Contrary to other property rights, ownership of copyright is not in “perpetuity”; its term is limited, after which copyright ownership ceases, and the work enters into the so-called “Public Domain” where it can be commercially exploited freely by any user. The “public domain” also includes works which are not legally protected, such as “expressions of folklore”, or published anonymous works.
You will have noted that the duration of copyright is different for the authors’ copyrights, and the copyrights in the sound recording and the cinematograph film.
Since 1 January 2020, all sound recordings and cinematograph films released before 31 December 1959 are in the public domain because their 60 years of copyright protection are over. But the literary and musical works included in these sound recordings will continue to enjoy copyright protection for 60 years after the death of the last author.
If you intend to use a sound recording or film from the public domain, there is a good chance that the copyright of the underlying literary and musical work remains in force. You can use the sound recording without permission from the record label or film producer, but you will still need to obtain a clearance from the music publisher.
SHARES IN COPYRIGHT
Each CMO registers works according to rules laid down in a document called Distribution Rules that must be approved by its members in the AGM. These rules are available on the CMOs website for view by members and public.
Registration of a work where 100% of copyrights are owned by the authors, the 50% Rule applies: 50% for lyricists and 50% for composers. If publishing companies are involved, no more than 50% of shares in total work can be claimed by them.
HOW DO I PROTECT MY WORK?
For the Indian Copyright Act (Art. 17): “The author of a work shall be the first owner of the copyright therein” because ownership is central to the freedom of creators and is what copyright is all about.
Your work is protected from the moment it comes into existence. But there is always a gap between the moment a work is completed and the moment it is published; even published works are sometimes hard to defend against infringement. Under Section 45 of the Copyright Act, you can register your literary and musical work, and your sound recording, with the Copyright Office against a fee. See: copyright.gov.in
ASSIGNMENT OF COPYRIGHT BY THE AUTHOR
In 2012, the Legislator recognized the fundamental inequality in the negotiating power between the first owners of copyright, the authors, and the film producers and record labels. It amended the Copyright Act, 1957 to limit the extent to which authors can assign (sell) their rights.
“The author of the literary or musical work included in a sound recording [or a cinematograph film] shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilization of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void.” (Section 18.1)
To emphasize the point, the Copyright Act says again: “The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member shall be void.” (Section 19.8)
And just in case someone still don’t get it, the Act reiterates: “No assignment of copyright in any work to make a cinematograph film [or a sound recording] shall affect the right of the author of the work to claim equal share of royalties” except when a film is shown in a cinema hall (Section 19. 9 and 10)
In other words, an author can assign the rights of his work to someone else, a publisher for example, who becomes the new owner of his work and can publish it for profit. But – and this is the difference with the situation prevailing before 2012 – the author, while no longer the owner of the work, retains the right to receive royalties on an equal basis, i.e. 50%. This right to royalties cannot be waived or assigned, except to a registered copyright society, i.e. the IPRS.