COPYRIGHT PROTECTION FOR MUSICAL WORKS : Comparative

COPYRIGHT IN MEDIA: AN OVERVIEW

PRESENTED BY :PRIYANSHA JAIN & MEGHA ARORA SURI AND COMPANY LAW FIRM

PRESENTATION CHART             

Introduction Rights under copyright International Perspective Industries where copyright subsists Musical Work and Sound Recordings Copyright in Musical Works Copyright in Sound Recordings Cinematographic Films Copy Right in Cinematographic Films Difference between Author and Owner Licensing Organizations Overview of Infringement under Copyright Conclusion

INTRODUCTION Meaning of Copyright GENERAL DEFINITION

A bundle of intangible rights granted by statute to the author or originator of certain ORIGINAL LITERARY OR ARTISTIC PRODUCTIONS, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale COPYRIGHT DEFINED UNDER SECTION 14 INDIAN COPYRIGHT ACT, 1957

 Copyright granted for originality in expression and not in idea.  OBJECT OF COPYRIGHT  Grant protection to the authors against unauthorized reproduction.  Encourage the authors to engage themselves in creative works.  TENURE

 60 years, in case of original literary, dramatic, musical and artistic works the 60 years period is counted from the following the death of the author.  Registration not compulsory, but necessary in case of filing for infringement.

RIGHTS UNDER COPYRIGHT

© Moral Rights Section 57

Economic Rights section 14 Right of reproduction

Right of Public Performance and Communication to the Public Right of Adaptation Right of Translation

Neighboring Rights

Right of paternity

Right of integrity

INTERNATIONAL REGIME OF COPYRIGHT 1. THE BERNE CONVENTION, 1886( AS REVISED IN 1971)  Berne convention for literary/ Artistic works was adopted at Berne, Switzerland in September 1886  Main object was to protect the copyright owner of the member countries  It has 146 member countries( Including India ) Regulations/ obligations on the member states  National Treatment given to all member countries (Article 5)  Member states to provide moral right to the authors (Article 6)  Economic right Such as the right of translation (Article 8)  Duration of protection, during the life time of the author and 50 years after the death of the author (Article 7)

Berne convention protects the work outside the country only on the condition that the author is the member of the national company 2.   

TRADE RELATED ASPECTS OF THE INTELLECTUAL PROPERTY RIGHTS ( TRIPS) 1994 TRIPs agreement is a part of WTO which came into existence in 1995 Main object was to harmonise the different laws on the IPR, in various countries TRIPS mandates the member countries to amend their intellectual property laws MAIN FEATURES OF TRIPS

 TRIPS recognizes the basic principal of Copyright i.e. copyright exists in expression not an idea  Establishment of the dispute settlement process  TRIPs gives freedom to the member countries to determine appropriate method of implementing the provisions of the agreement

3.

ROME CONVENTION ( October 1961)  

Provisions under the convention do not affect the Berne convention RIGHTS PROVIDED UNDER THE ROME CONVENTION: 

In relation to performer   



In relation to producers of phonograms 



Broadcasting and communication to the public Recording of an unfixed performance Reproducing a fixation of performance

The right to authorize or prohibit direct or indirect reproduction

In relation to broadcasting organizations   

Right to authorize or prohibit simultaneously broadcasting Fixation of their broadcasts Reproduction of unauthorized fixations of their broadcasts

INDUSTRIES WHERE COPYRIGHT SUBSISTS Music Motion Picture News and Broadcasting Advertising Publishing Internet Photography Fashion Sculpture and Designing Architecture

Musical Works and Sound Recordings •

Both Musical Works and Sound Recordings are eligible for copyright protection. • Musical Works – S. 2(p) - work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music • 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; • Sound Recordings - S. 2 (xx) - Recording of 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 produced;

• 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.

• Performance - means any visual or acoustic presentation made live by one or more performers;

COPYRIGHT IN MUSICAL WORKS • A musical work would involve a person ‘composing’ a piece of music, arranging it, and giving it a melodic structure or form. • It does not include playing and recording the musical creation. Merely ‘composing’ it would suffice. • The addition of lyrics to a musical work is separate, and does not come within its definition.

• Lyrics are a set of words written, usually corresponding and intended to be combined with background music or vice-versa. • Musical Works are converted to a tangible form via sheet music, tablature and graphical notation.

CINEMETOGRAPHY Includes • Feature film, Documentary,Video,TV film • "cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films [section 2(f)] • Author is the producer [section 2(d)(v)]

COPY RIGHT IN CINEMETOGRAPHY • In the case of film – to make a copy of the film, including a photograph of any image forming part there of; – to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; – to communicate the film to the public.

Key points • Films contain a number of separate copyrights, including copyright in the screenplay or narration and in the visual images and

material incorporated into the soundtrack, such as music and recordings.

• If you’re making a film, you will usually need to get clearances for any third party copyright material which appears in a shot or which can be heard on the soundtrack. • You will usually need legal advice on contracts that deal with distribution and licensing of films.

AUTHOR AND OWNER COPYRIGHT  Section 17 of the Indian Copy right act provides for the rights of the author and the owner •

Normally, the creator of an artistic work / literary / dramatic work, the author is the owner of the work unless he has done something within the course of his employment ;

•

In case the author has done something within the course of its employment the owner is the employer at whose instance the work has been done unless there is any agreement contrary to the same.

•

in the case of a work to which the provisions of Section 41 apply, the international organisation concerned shall be the first owner of the copyright therein.

For example AUTHOR : – in relation to a musical work, the composer S. 2 (d) (ii) – in relation to a cinematograph or sound recording the producer; S. 2(d) (v)

HOUSEFULL CASE (2011 (1) CHN 341) • Dispute – The song “apni to jaise’ from the 1970’s movie “Laawaris” was used in the 2010 movie “Housefull”.

• Ratio Decidendi:  When a composer does any work in the course of employment of contract, the employer shall in absence of such contract becomes the first owner of the copyright  Assignee of copyright is entitled to the right to grant licenses in respect of contract works to third parties.

LICENSING AUTHORITIES

PHONOGRAPHIC PERFORMANCE LIMITED (PPL)

THE INDIAN PERFORMING RIGHT SOCIETY LIMITED (IPRS)

 DIFFERENCE BETWEEN THE TWO LICENCING AUTHORITIES

 PPL represents record companies whereas, IPRS represents lyricists, writers, composers and publishers

INFRINGMENT- AN OVERVIEW WHAT CONSTITUTES INFRINGEMENT (Section 51)

 To do without authority or license something which only the owner of the copyright has the exclusive right to do.  It is not necessary that the alleged infringement should be an exact copy of the original but its resemblance with the original in the large measure is sufficient to indicate that it is a copy. (AIR 1978 SC 1613) [R.C. Anand vs Delux Films]. FACTORS FOR DETERMINING THE QUESTION OF INFRINGMENT:

   

Casual Connection Sub Conscious Copying Indirect Copying Substantial Taking