Into the Structural Vortex of Copyright Provisions and Music Producers: A Bird Eye View

Sound is space. The creation of your space is freedom. What you put in the space, what ideas you develop to express and how you arrange it, is the crux of all music. No matter how you arrive at your sound, there is always comfort in knowing that your space is completely your own. Ideas in one’s mind have no values until they are expressed or reduced to practice. In today’s competitive environment, the most valuable currency is not money but ideas. Intellectual Property, in literary sense, means the things which emanate from the exercise of human brain. It is divided in two broad categories namely Industrial Property and Literary Property. It is the latter branch which comes within the ambit of Copyright and related rights and consequent laws. It is to interpret the dimensional realm of copyright provisions which protect the expressions along with the remedies pertaining to any copyright infringement. Copyright, as defined under section 14 of Copyright Act, 1957, is the exclusive right given to do creators of musical, artistic, dramatic and literary works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaption and translation of any work. It is noteworthy that the copyright protects the expressions and not the thought or ideas.

Basic

To understand the value of IP and protection of creativity is to look at it from the perspective of the producers or creators. These individuals devote their lives to the creation and dissemination of music, art, knowledge and culture. They intend to deliver something productive through expression of ideas and that expression, always protected by copyright. This has been defined by the Idea-Expression Dichotomy under the Copyright Act 1957, which explains that ideas and concepts are available to all for use and that one is free to form his own expression from any concept or idea. The fundamental rule is that Copyright Law protects only specific expression of an idea and not the idea itself. Thus Copyright does not subsist in ideas, concepts, principles, procedures, etc. It subsists only in the material or tangible form in which the ideas are translated. Further, the lack of requirement of quality in copyright law also confirms with the principle that copyright protects expression, but does not protect the idea underlying the expression. And where the idea and expression are inseparable, none is protected. Thus, explaining the doctrine of merger. Moreover, if a work or composition is the result of sufficient independent labor, skill and judgement bestowed by a producer or creator even though he might have derived his materials from a source publicly known, originality will prevail under the Copyright Act 1957.

According section 13 of the Copyright Act, 1957, copyright can be provided only to original work. Protection of copyright is conceded to the creator or producer for his lifetime and 60 years, counted from the year following his death. The moment an original work is created with appropriate labor, skill and judgement, it can be claimed copyright without registration. However, to serve as verification in matter of dispute and to avoid any copyright infringement, it is encouraged to register the work for better protection.

Use of Originality

Since past 2 decades, the law has become quite firm around the consequences of exhausting copyrighted work (‘work’ can be considered as a song) in creative works, including music and audio due to the advancement in technology, sampling, ripping and recreating have become easier and more accessible than ever before. This has even lead to the easy detection of copyrighted works available on social music streaming platforms such as Soundcloud, Spotify, Gaana, Google Play Music, Youtube and so on. As a result of which the producer re-creating a track with inspirations developed from other original work, need to apply proper skills and labor and have to be careful with what they use to rework and where they distribute such things, in order to protect from copyright infringement.

For instance, the domain of Intellectual Property law is quite applicable to Music Producers who uses samples, masters, composes, creates new music and recreates or reworks on other producer’s work in order to perform publicly and gain financial benefits for livelihood. The ambit of Copyright application to a musical composition covers both the final mix and all of the original stems in a master recording. There exist two sides of copyrights – master side and a publishing side. The master side covers the sound recording and every stem used in the mix of that sound recording, while the publishing side covers the underlying composition (the music and lyrics upon which the sound recording is based). It becomes important to acquire prior permission from the copyright holder of the original work in order to create a derivative work like remixes resulting in a new work with applied skills, layers of samples, various acapellas and stems wholly based on the skeleton of an original work of that producer. There exists a sufficient permission to create a derivative work if the one receives a request by another artist or label to remix an original track. Both the master side and publishing side covers all the stems in the mix and the lyrics and music. Thus the resulting remix is likely to be comprised of stems, lyrics and music derived from the original, combined and evolved with new stems, resulting in ownership breakdown and subject to a new copyright. If original stem are produced and infused with the mix, theoretically you own part of the new master. Once a track is released, the record labels sends promos to various djs/music producers in order to broadcast the track in various live shows or radio shows, making it aware to the followers and gaining feedbacks leading to the promotions of such productions, increasing the purchase rate. It is also to be noted that artist/record labels may also pay the producer certain royalties in exchange of releasing all the rights to the record label.

Indeed, no man is allowed to appreciate the fruits of another’s labor, skills and judgment, so a producer might acquire copyright in his work or composition composed or prepared from an existing subject matter by the exercise or independent labor, skills and judgment, by a new or novel arrangement and creations of samples and stems, with additions and alterations so as to make his work a new original work. This is also called the Doctrine of Originality or ‘Sweat of the Brow’ doctrine under the Copyright Act.

According to the doctrine of Sweat of the Brow, substantial creativity or ‘originality’ is not required and the producer of a copyrighted work, even if it is completely, unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without prior permission if he can show that he arrived at his result music production by independently working out the matter for himself. The producer may arrive at the same result, as the original producer claiming infringement of his work, by using common sources of ideas, but should expend his own labor. Therefore, the main focus of this doctrine is not the final result of the rework obtained but on the use of the skill and labor of the producer claiming copyright and thereby avoiding to fall within the ambit of copyright infringement.

Copyright Infringement

Infringement of copyright alludes to the unapproved utilization of somebody's copyrighted work. In this manner, it is the utilization of somebody's copyrighted work without authorization along these lines infringing certain privileges of the copyright holder, for example, the privilege to replicate, distribute, show or perform the copyrighted work.

Section 51 indicated when a copyright is infringed. Copyright is regarded to be infringed if:

• An individual without acquiring the consent of the copyright holder does any demonstration which sole the copyright holder is approved to do.
• An individual allows the place to be utilized for communication, marketing, conveyance or presentation of an infringing work except if he didn't know nor has any motivation to accept that such authorization will bring about the infringement of copyright.
• Duplicates of a work imports infringement.
• Without acquiring the authority from the copyright holder, an individual imitates his work in any structure.

Elements constituting towards copyright infringement:

• The must be the first production of author, creator or producer.
• The creator’s original work must have been duplicated by the defendant. It is critical to take note of that not all verifiably replicating is legitimately noteworthy. The considerable connection between works by the creator and the defendant must be set up to demonstrate that the defendant has infringed the copyright of the creator.

Fair Use

Generally, one is always required to acquire a prior permission from the original copyright owner to create or distribute that derivative work. Without such permission, one commits copyright infringement. However, there exists a statutory exception to this rule under Section 52 of the Copyright Act, called as the Doctrine of Fair Use. It states that one may make limited use of another’s work without asking permission. This section provides an exhaustive list and any use not falling within the statutory list is considered as an act of infringement. The fair use privilege is perhaps the most significant limitation on a copyright owner’s exclusive rights to understand what is and is not fair use. For determining fair use of a work, there exist 3 most important aspects:

• To extent of what is taken or how much of the original song has been used in the remix;
• The purpose for which the material has been taken;
• The motive of the person claiming fair use

One may plead ‘fair use’ when distributing produced music for free, but it constitutes a risk and may end up in a legal pickle.

Remedies for Copyright Infringement

Under the Copyright Act of 1957, certain remedies pertaining to infringement are:

• Civil Remedy - According to Section 55 of The Copyright Act, 1957, if there have been an infringement of copyright in any work, the proprietor of the copyright will be eligible for all such remedies by method of accounts, damages and injunction.
• Criminal Remedy – As per Section 63 of The Copyright Act, 1957, the copyright holder can take criminal procedures and hold an individual liable for infringement with at least 6 months imprisonment, which may extent to 3 years and with a fine of Rs.50, 000, which may extent to 2 lakhs.

Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable.¹

Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been committed, can seize copies without a warrant to produce before Magistrate.²

Conclusion

The determination of copyright is to protect the privileges of the producer’s original work and offer financial benefits to them for their inventiveness, assiduity and diligence. The moment one’s work is produced and fixed in a tangible form, it is under the ambit of copyright protection. In the event where an individual without the substantial use of skills, labor and judgement produces a derivative work thereby infringing the copyrighted work of the original creator, at that point he will be liable for both the criminal liabilities and civil liabilities. Although the registration of work is not vital in certain cases, however it is enthusiastically prescribed to register as soon as one's idea is changing into writings, compositions or expressions as it will eventually hold valid proof before the court in case of infringement. Furthermore, it is commendable that into the vortex of dimensional realm of copyright provisions, being artistic revolutionary is a lot more secure than being a profiteer.

Footnotes

1. Section 55(1) of Copyright Act, 1957 ↩

2. Section 64 of the Copyright Act, 1957 ↩