SOUND RECORDINGS AND REPRODUCTION UNDER COPYRIGHT LAW

ABSTRACT

Intellectual Property Law is the field of law which is emerging and achieving some extra-ordinary results. It helps in protecting the ideas, designs and innovations for the smooth conduct of the business activities. It is basically in place to avoid unjust enrichment. In our day to day activities, we often deal with copyrights. These are for the protection of authors basically but their protection more often is granted to the exploitative producers to the exclusion of original authors of work.

INTRODUCTION

Intellectual Property, as the name suggests, is the property created by intellect. It is an intangible property which exists in the form of bundle of rights. Among others, copyrights are the one which are granted for some original literary, artistic and musical work. It also extends its protection to cinematographic films and sound recordings. As the name itself suggests, copyright is the exclusive right to copy the work i.e. to make copies and duplicates of the original work.

There are many international covenants to which India is party from which flow the obligation to protect the authors of original work. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) being the most important, others include the Berne Convention of 1886, Rome Convention of 1961 and Universal Copyright Convention of 1951.The Indian Copyrights Act, 1957, as amended from time to time, is the legislation which helps in discharging the obligation in this regard. One of the work which is protected by this legislation is sound recordings which may embody some literary or musical work. The objective of this article is to infer the correct position of law in this area and to terminate the confusion.

WHAT IS SOUND RECORDING?

Sound Recordingis the recording of the variations in some medium from which the same sound may be communicated or created at a later time. To get the protection of copyrights, the sound recording must have some originality and it should be the work of some authorship. The definition of sound recordings is very general in nature in the Indian Copyrights Act, 1957. It has been defined as ‘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.’[1]So, the sound recordings may be the recording of some musical work, literary work or it may be some lecture or any unique sound that may have such originality so that the protection of copyright could be warranted. The sound recording is the result of contributions of different parties. For e.g., a recording of song includes the work of lyricist, composer, singer and finally the producer who processes those sounds to make final recording. Section 14(e) recognizes the bundle of rights that are available to the copyrights holder in case of sound recordings and these rights include to make any other sound recording embodying it, to sell or give on hire copies and to communicate it to the public.[2]

LANDMARK VERDICT – IPR SOCIETY v. EIMP ASSOCIATION[3]

The Supreme Court discussed and settled the rights of the lyricists and composers as against the producers of the sound recordings. The perusal of the judgement would show that the court laid down the following two fundamental principles which apply equally to cinematographic films and sound recordings –

  • When the author of some literary or musical work has copyrights for same and the problem of sound recording embodying the same works has copyrights for sound recordings, the rights of both parties have to be harmoniously construed. Given the fact that the producer has obtained license to record the works of lyricist or composer, the producer shall be the first to have the copyrights on sound recording over lyricists or composers. It means that the producer shall have the right to reproduce the work by keeping it altered or unaltered, as the case may be. The producer may communicate it to the public by any whatsoever means he may decide. However, the lyricists or the composers shall have the right to perform their literary or musical work in public that is embodied in the sound recording. However, they shall not have right to use it for cinematographic films or sound recordings.
  • According to section 17b of the Copyrights Act, the producer could completely defeat the rights of the lyricists or composers. It means that unless there is a contract to the contrary, if the lyricist or composer has been paid consideration by the producer for contributing their works towards film or recording, the producer shall be the first owner of the copyrights to the exclusion of lyricists or composers.

The Bombay High Court later applied these principles in Music Broadcast Private Limited v.Indian Performing Right Society.[4]

ANALYSIS OF THE CURRENT POSITION OF LAW (INDIAN PERSPECTIVE)

Whether the current position of law in this field serve the ends of justice or not is a debatable and controversial question. Although the precedents may be in line with the statutes but these are not in line with the justice. If we look into the objectives of these class of rights, then one could safely say that the fundamental of them is to protect the original work of the author. However, in the case of IPR law on sound recordings, the rights of the lyricists or the composers are sacrificed in order to enforce the rights of the producers. So basically, in that case the work created by intellect is not protected but what is protected is economic interests of a resourceful person.It seems that the author of some literary or musical work is not able to use his own ideas and expressions due to rights of some other person who just provided resources to create a market for the same.So the IPR laws in this respect are basically more inclined towards protecting the tangible property rather than intellectual or intangible property.Even if the remix of some recording is to be made, the royalty is paid to the producer and not the lyricist or composer.[5]We could safely say that the sound recordings would not be any worth if some kind literary or musical work is not a component . However, the original authors are left with only some moral rights after giving up commercially viable rights in favour of unscrupulous producers. The laws need to recognize the creativity and intellect behind original works of author to extend more protection to them.

CONCLUSION AND SUGGESTIONS

A series of amendments is needed in the copyright law to save the lyricists or composers from the clutches of producers. A due recognition is to be given to the talent and it has to be protected from the music mafias. The only way to end the exploitation of the artists is by giving them their due. Although, the verdicts of the courts may have got the law right but the criticism of these verdicts is not unfounded. The courts need to dynamically interpret laws in this respect to ensure complete justice. After all, whatever development this world has seen owes it to the intelligence of some or other.

REFERENCES

Articles & Circulars –

Statutes –

  • Indian Copyrights Act, 1957.

Legal Databases –

  • SCC Online
  • Manupatra

[1]The Indian Copyrights Act, 1957, Parliament of India, 1957 (India), s. 2(xx).

[2]The Indian Copyrights Act, 1957, Parliament of India, 1957 (India), s. 14(e).

[3]IPR Society v. EIMP Association, AIR 1977 SC 1443.


[4]Music Broadcast Private Limited v. Indian Performing Right Society, avail. http://indiankanoon.org/doc/1064366/ (last visited 7th July, 2020).


[5]TulzapurkarVeerendra, Remix and Copyright Law, 10 Journal of Intellectual Property Rights 106 (2005).

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