Posted on July 13, 2020
Authored by Tanya Varshney
Under the Copyright Act, 1957, copyright protection is extended to three categories of work, namely – (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings. Thus, both ‘musical works’ and ‘sound recording’ are covered as copyrightable works under the Act. ‘Musical work’ simply refers to any original work which consists of musical notes or graphical notation of such notes excluding the lyrics. On the other hand, ‘sound recording’ refers to recording of sounds fixed on a medium. Further, a ‘cinematograph film’ refers to visual recordings and includes any sound recordings accompanying such visual recordings. Thus, these three categories of work are interlinked with each other as a copyrighted sound recording included in a copyrighted cinematograph film may have underlying musical works which are copyrighted by someone else.
Moreover, music is a big part of the entertainment industry ranging from independent artists, bands, record labels, cinematographic films, etc. This also means that several people are involved for the completion of a song. This leads to some complexities in determining how the copyright is determined – whether the composer, lyricist, instrumentalist, or producer owns the copyright; what is the extent of assignment of copyright and whether these people retain any performative, mechanical or derivative rights; how royalties are fixed and determined, and who would be entitled to further royalties in the case of future assignment or remixes, etc. This article is Part 1 of a two-post series concerning sound recordings and musical works under the Copyright Act. This article examines and analyzes the ownership of copyright in sound recordings, musical works, and cinematograph film.
Musical Works and Sound Recordings
The Copyright Act makes a distinction between the ‘owner’ and ‘author’ of the copyright. ‘Author’ has been defined under the act to mean – (a) the composer in relation to a musical work; and (b) producer in relation to a sound recording. Generally, the author is the first copyright owner subject to the provisions of the Act and unless the copyright is assigned to someone else in a contract of service/employment. The composer and producer of a song would be the same person when one person has composed the musical notes, the lyrics, and recorded it in the form of a sound recording fixed onto a medium. Another instance would be where a record label is involved – say, person X is a budding artist who has written a song by composing the musical notes and writing the lyrics, and now wants to approach record label Y to help him record and distribute the song. Now, X is the author of the musical work (being the notes) and literary work (being the lyrics) assuming that the requirements of originality and minimum level of creativity are satisfied. Record label Y collaborates with X to record his song in their studio and thereafter engages the final editors and producers in their team to add some final touches to the song. Record label Y in this case would be the owner of the sound recording. This is a slightly more complex situation as X owns the copyright to the underlying musical works but Y owns the copyright to the finished sound recording.
Musical Works and Cinematograph Films
In case of sound recordings used for cinematograph films, the producer of the film is generally the owner of the copyright to the sound recording and the composer of the song is generally the owner of the underlying musical work. In India, original songs are an important part of films. Prior to the amendment of the Copyright Act in 2012, the leading position of law with respect to ownership of sound recordings in cinematograph work was derived from Indian Performing Right Society v. Eastern India Motion Pictures (‘IPRS case’) where it was contended that IPRS did not have the authority to grant licenses incorporated in sound tracks of cinematograph films and that all the rights which subsist in the composers or writers for the underlying musical or literary works, including the right to perform, becomes the sole copyright property of the producers of the cinematograph film. Accordingly, it was contended that the composers could not assign any right to utilize the said sound tracks to the IPRS. The Apex Court sought to examine whether a composer of a lyrical or musical work retains any copyright in the said work upon licensing it to the producers of a cinematograph film for its incorporation in the sound track. Cinematograph film, as defined under Section 2 (f) includes the sound track contained in it. The court observed that, as per Section 14, the copyright in a cinematograph film would include public exhibition of sound track in such film. On the point of composers and lyricists licensing their work to the producers of the cinematograph film, the court noted:
“Once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)'(e) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public”.
Thus, the Supreme Court opined that copyright exists in the cinematograph film as a whole including any sound track that is a part of it and that the composer of the underlying works cannot complain of infringement of his copyright against the producer of the film including public exhibition of the sound recordings for profit. However, the court clarified that the composer of such lyrics or musical work would retain performative right with respect to such work. The court primarily drew this conclusion relying on a harmonious reading of Sections 13, 14 and 17 of the Copyright Act. Relying on Section 17 (b) and (c), the court concluded that rights of a music composer or lyricist can be defeated by the producer of a cinematograph film.
The concurring opinion delivered by Justice Krishna Iyer also discussed some pertinent considerations which reflect in some of the changes introduced by the 2012 amendment. Justice Iyer noted that though copyright subsists in a cinematograph film as a whole, there is also copyright to be enjoyed in the individual and separate ‘work’ in such film. Thus, Justice Iyer observed that a producer of a film cannot “trench on the composer’s copyright which he does only if the ‘music’ is performed or produced or reproduced separately, in violation of s. 14(1)(a)”. In simple terms, using the sound tracks separate from the film to attract an audience would amount to ‘trenching’ a composer’s copyright unless Section 17 (c) is attracted by way of an agreement allowing the same. He opined that the twin rights given for cinematograph film and musical works under Sections 14(1)(c) and 14(1)(a) respectively should be construed harmoniously.
Interestingly, Justice Iyer also noted that a composer is considered as the author of a musical work and a lyricist is considered as the author of a literary work (being the lyrics) but no copyright with respect to a singer is acknowledged. He suggested that this ought to be addressed by the legislature as “this disentitlement of the musician or group of musical artists to copy- right is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician”.
Copyright in respect of a musical work includes the exclusive right to reproduce, issue copies, perform, translate, make adaptation of, or make a sound recording in respect of it. Copyright in respect of a sound recording includes the exclusive right to make other sound recording embodying it, offer for sale or commercial rental, and communicate to the public. If any work is made under a contract of service, Section 17(c) states that the employer shall be the owner of the copyright unless provided by an agreement otherwise. After the landmark decision in the IPRS case above, the Copyright Amendment Act of 2012 introduced a proviso to Section 17 which states – “in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub section (1) of Section 13”. A plain reading of this proviso indicates that in case of work incorporated in cinematograph work (such as a sound recording for a film), Section 17(c) shall not affect the right of the author in respect of original literary, dramatic, musical and artistic works. This re-affirms the judicial opinion laid out by Justice Iyer in his concurring judgement.
To illustrate the implication of this situation, say Dharma Production decides to engage famous musician Arijit Singh to write a song for their movie. Arijit Singh, in turn, composes the instrumental, writes the lyrics and records this song. Since this sound recording was made arising from a contractual relationship between them, Dharma Productions is the owner of the sound recording (within the meaning of Section 17(c)) being a part of the cinematograph film. This means that, in the future, Dharma Productions can use samples from this sound recording for other music by them, enter into licensing arrangements with music streaming platforms for this song, and can release it on their website or any other medium. As per the proviso to Section 17, Arijit Singh still retains the right to the lyrics and underlying musical composition which means that he retains certain mechanical, derivative and performative rights. To further illustrate, Dharma Productions can use samples from this sound recording but they cannot engage another musician for another film to make a song using Arijit Singh’s lyrics or musical notes (such as the musical notes or chord progressions he composed) without his consent for the same.
To conclude, it is noteworthy to mention that the amendments introduced in 2012, read together, clearly indicate the legislature’s intent to demarcate and assert separate rights with respect to musical works, sound recordings, and cinematograph work. This also indicates that while these three works may be interlinked with each other – as musical work may be a part of a sound recording which may be a part of a cinematograph film – the separate copyrights as stated in Section 14 would subsist in the individual elements. Detailed discussion on assignment, royalties and derivative works with respect to musical works and sound recordings shall be continued in Part 2 of this article.
 Section 13(1), Copyright Act, 1957.
 Section 2(p), Copyright Act, 1957.
 Section 2(xx), Copyright Act, 1957.
 Section 2(f), Copyright Act, 1957.
 Section 2(d), Copyright Act, 1957.
 Section 17, Copyright Act, 1957.
 1977 AIR 1443
 Section 14(a), Copyright Act, 1957.
 Section 14(e), Copyright Act, 1957.