New copyright law hits right note

By Ekshita Choudhary, Lall Lahiri & Salhotra
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The Copyright (Amendment) Act, 2012, is one of the most far reaching pieces of intellectual property legislation enacted in recent times. It has the potential to change the face of the Indian entertainment and media industries. However, it is expected to have the most dramatic impact on the music industry.

Parity for all

At present, the Indian music industry is dominated by certain groups of copyright holders who wield considerable influence on the practices in the industry.

Ekshita Choudhary Associate Lall Lahiri & Salhotra
Ekshita Choudhary
Associate
Lall Lahiri & Salhotra

The act aims to address issues arising from this situation and bring about parity for all players in the music industry.

The present law in relation to films and sound recordings, provides, in section 2(d) that the author is the producer and in respect of musical works, the author is the composer. This definition has not been changed.

However, certain rights have been granted to contributors to such works through changes in section 19 which deals with mode of assignment of copyright.

Through insertion of a new sub-section 8, the authors of works (including lyricists and composers) forming part of a cinematographic work have been granted the right to claim royalties in respect of such works, even after assigning their copyrights to the producer of a film.

In effect, these sections address the highly debated question of rights of lyricists, writers, and persons putting creative efforts into a work. Their right to claim royalty may be deemed to be on par with that of the producer.

Rewind and pay

A contentious aspect of the music industry has been cover versions of copyrighted works. Often such covers, which are copyright protected, are seen as having hijacked the creative effort of the original work. This has been addressed through the insertion of section 31C.

The section states that cover versions may be made without the consent of the original author only if they are in the same medium as the original work. This restricts the ability to make cover versions of older works which may have been in a medium (LPs or cassettes) that is redundant today.

The provision states that cover versions cannot be made for a minimum of five years “after the end of the year in which the first sound recordings of the work was made”. There is also a requirement to notify the author of the original work and pay royalties (for a minimum of 50,000 copies) for the same. In addition, such cover versions cannot be sold in a manner that would mislead the general public into believing that it has been originated from the person making the cover. The work should state that it is indeed a cover version. Also, the literary or musical work cannot be altered without the approval of the copyright holder of the original work.

Musicians and composers, along with writers and other authors of creative works have also been included in section 31D of the amended act, which provides greater avenues for generating revenue from their creative works. The section provides for payment of royalty by broadcasting organizations for “communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published”.

New societies

At present, the distribution of copyrighted works is highly restricted. There are limited avenues for generation of revenues for authors of the work, as distribution is controlled by copyright societies that represent only the interests of the copyright owners.

However, the new act stipulates that the copyright society shall be subject to the collective control of copyright owners as well as authors. Sub-section 3 reflects the change in the governing pattern of copyright societies and brings authors on par with copyright owners. This is one of the biggest steps to provide authors of works greater control over use, distribution and equality in revenue.

Through the amendments, performers, singers, musicians, writers, and other creative artists have been granted the right to claim not just moral rights in their works, but also royalties for use as well as protection from unauthorized cover versions and a say in the copyright societies.

The aim of the amendment has been to bridge the disparity between owners and authors, and to put the rights of authors on the same footing as those of authors in various other jurisdictions. The amendment, once implemented, will put Indian copyright standards on par with various international standards as well as those contemplated by the World Intellectual Property Organization. It will also provide an impetus to creativity and increase the availability of works to the public.

Ekshita Choudhary is an associate in the trademarks opposition department at Lall Lahiri and Salhotra.

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