Protection of Intellectual Property Rights (IPRs) of Music Composers in India

Music, the word itself is so powerful. It has the ability to bring all people together regardless of religion, caste, colour or cultural differences. When one talks about music in India, it can be any song from Bollywood to Tollywood or can be from Punjabi rap songs to remixes, India has it all and is to home to so many songs varying from so many different languages. When it comes to protecting, music is one of the most protected and restricted at the same time.

To understand the rights associated with music composers one needs to understand who music composers are in the first place. Under the Copyright Act, 1957 which defines ‘composer in relation to musical work as a person who composes the music regardless of whether he records it in any form of graphical notation and also defines author in musical work as the composer’ and protecting their work would mean they wouldn’t want anyone else to copy or use it without their permission.

Musicians, producers and singers earn money through the contract signed, through sales or the merchandise other than that they also earn money through live performances and tours that they do. However the composers get paid as a one-time payment and do not cash in on any royalties that would be rightly the composers but instead they go to the company that sells the music popularly known as in industry as record labels. Understanding how IP rights work is important because it is very easy to copy and sell the same music that is made by someone else and one can find pirated versions online as the same case is with films.

The exclusive rights that the owner of the copyright gets which according to section 2 (d) of the Copyright Act of 1957 is the Composer in terms of musical work, and according to section 14 (a) the following would be the rights that the author would get,
1) is to reproduce the work in any material form including the storing of it in any medium by electronic means;
2) is to issue copies of the work to the public not being copies already in circulation;
3) is to perform the work in public, or to communicate it to the public;
4) is to make any cinematograph film or sound recording in respect of the work;
5) is to make any adaptation of the work;
6) is to do in relation to a translation or an adaption of the work, any of the acts specified in relation to the work in sub-clauses 1- 5.

It is so often that we hear a popular song in public place but many are not aware of the fact that the owners of such public place need a license to play. The Indian Performing Rights Society Ltd (“IPRS”) was founded in 1969 for the sole purpose of issuing licenses to the music users. The royalties made on songs are also collected by them on behalf of their members that include lyricists, music directors and sound producers.

The dispute of copyright in the works of music composers with relevance to the producers of a film have always been the question of debate. The composers and lyricists are always demanding a share in royalties. This dispute was taken up in Indian Performing Rights Society vs. Eastern Indian Motion Pictures Ltd (Civil Appeal No. 967 of 1975) case becomes important. Before this judgement was delivered on 14th March, 1997 there was a long standing dispute between music composers and producers of the film over the issue of copyright and IPRS would claim the royalties over the songs that would be played in the public places. The claims of the Appellants in the case were that composers of literary or musical work has the exclusive copyright on that work and that right is infringed when someone uses it or plays without taking permission from the owner of the copyright. They argued that section 17(b) of the copyright act had no application hence the producers of the film cannot claim copyright of the work. The Respondents on the other end argued that section 17(b) would apply only when producers apply only when producers hire composers to make music which would be part of a film for consideration J. Iyer extended the scope by saying producer do have exclusive right over the film as a whole and he does not need to pay fee or royalty to IPRS but if producer plays any part of the music separately to attract audience that would cause an infringement.

As a result of this judgement, the Parliament has to bring an amendment act of 2012 which specifically understood the difference between the usage of the work for incorporation in cinematograph fil and other uses of such work across different modes and mediums. And accordingly mandated that assignment contracts that put a stop to the right of the author of the work, incorporated in cinematograph film, to collect royalties in case of usage of the work in forms other than cinematograph film would be considered void unless such assignment is made in favour of legal heirs of the author or to the copyright society for collection and distribution of the royalties.

The same judgement of 1997 was relied upon by Supreme Court in 2016 in International Confederation of Society of Authors vs. Aditiya Pandey & ors (Civil Appeal Nos. 9412-9413 of 2016). Where Supreme Court is of the view that a III party, such as event management/organisers who would play a song in public are required to pay royalty t only music recording company and are not required to pay to lyricists and music composer. Even though the arguments made by Appellants were genuine but it would literally mean that the event management/ organisers would have to take permission and pay royalty not only to the recording company but also to the lyricists and music composer, where they would end up paying double.

In the recent judgement in the case of Agi Music Sdn Bhd v Ilaiyaraja & Modern Cinema and Echo Recording Company v llaiaraja (Civil Suit No. 308 of 2013 and Civil Suit No. 625 of 2014) which is considered as a milestone in modern Intellectual property jurisprudence. The court that IIaiyaraja owned ‘special moral rights’ over all his songs. It also entitles him to restrain/claim damages in respect of any kind of distortion, mutilation, modification or other of his work which would be prejudicial to his reputation or honour. The judgement absolutely confirms the rights of producers as owners of ‘sound recordings’ in cinematography films, prior and post the 2012 amendment act. The only limitation placed on the producer is that he would be the owner of only the sound recordings that is part of cinematography film and his compositions should not be used in online music portals, radio stations and reality shows as those rights are reserved by him.

It is clear to understand now that when a music composer enters into an assignment agreement for his compositions to be used in a cinematograph film, the producer of such film becomes the owner of the ‘sound recordings’ that are used in the film. Other than musical work that is being assigned for exploitation, moral rights are still the copyright of the composer and the producer will need to take permission of the owner to exploit it in other mediums.
Authored By: Adv. Anant Sharma & Manasvi Shah