In recent times we have heard so many issues regarding the ownership of a song.A song is not a single element and it is composed of three different stones such as music,lyrics and voice.Songs and music plays a vital role in a cinematograph film and some music companies produce songs separately which is completely foreign to any film.Now arises a big question,who is the owner of a song ? To be honest,this question cannot be answered in a single line since it involves complex legal matters.However,this question can be answered through the light of Copyright (Amendment) Act,2012 and various judgements pronounced by various High Courts and Supreme Court.
Meaning of Copyright and the works in which it subsists :
Copyright is an exclusive right to do or authorize the doing of any of the acts[i] mentioned, subject to the provisions of the Act.According to section 2(d)(ii),a composer of musical work is an author and lyricist is an author in realtion to literary work (lyrics) under section 2(d)(i) and the producer in relation to sound recording is an author under section 2 (d)(v).The Act clearly explains the works in which the copyright subsists which means that other than the works mentioned under this Act,no other work can be protected by claiming copyright.The following are the works in which copytight subsists as per the Act[ii] :
- Original literary,dramatic,musical or artistic work,
- A cinematograph film and
- A sound recording.
And an important point to be noted here is,the term ‘song’ is not defined anywhere in this Act.Therefore we can classify the copyright of a song in two different angles.First,since song is a part of a cinematograph film,the producer of the film will be the owner of a song as he claims the copyright of a film as a whole.The same rule applies to the recording company as well if the song is a separate album.Secondly,since song is composed of three different elements,the copyright of a song can be registered separately as different parts such as lyrics of the song can be protected under literary work (lyricist),music can be protected under the category of musical work (composer),singer can claim for performer’s rights and moral rights as well (voice) and at last a song as a whole can be protected under sound recording (producer).
Contracts and its effect in the ownership :
In most of the cases,the film producer will make a contract with the composer,lyricist and singer with regard to the publication of their works in the particular film.The lyricist will be paid for his contribution of lyrics and the same thing happens with the singers also.Once they are paid,it is deemed to be sold their rights to the producer.But these contractual terms must be read carefully in order to obtain the essence of real ownership.Though the artists sold their work to the producer for consideration,it only covers the domain of cinematograph film and not the areas outside the film.For instance,if a producer uses the songs as a part of film,then the composer nor the lyricist and singer claim the copyright since they agreed to take part in the film and also have sold their rights for consideration.But if the same producer uses the songs separately to attract the audience or to earn money which doesn’t form the part of film,then he has to pay royalty to the respective copyright holders.This has been clearly stated by Justice.Krishna Iyer in his judgement[iii] favoring the royalty to be paid for singers and composers and lyricists.And this was the unwritten rule followed in India for a long time and to perform or to communicate a work(song) to public,the person has to obtain prior permission from the lyricist,singer and composer as well.
But the Supreme Courthas taken different stand in other case[iv],held that the radio stations which were broadcasting/communicating the ‘sound recordings’ were required to pay royalty only to the owners of the sound recordings and need not pay separate royalty to the owner of the lyrics nor the owner of the musical works incorporated in such sound recordings.The Court gave its reasoning as the owner of sound recording company can only communicate to the public whereas the owners of the lyrics and musical work can perform as well as communicate to the public.But this judgement has received so many dissenting opinions from the field of composers and lyricists as it baffles their rights to get royalty since the term of copyright differs from one another.The term of copyright for sound recording is sixty years from the date when it is published whereas the term of copyright in literary and musical works is life of the author plus sixty years from the date of death of the author.Hence if the rule of this judgement is upheld,then the authors of literary and musical works will be kept out of the benefits derived from their works and also their heirs may not be able to get the benefits as the life of copyright of sound recording is shorter than that of literary and musical works.
Moral rights of the Authors :
The Madras High Court has confirmed that a composer has his copyright over his musical work distinct from the copyright of producer in the sound recordings of a film[v].According to the Act,the copyright in a cinematograph film or sound recording shall not affect the separate copyright of any work[vi] and it also recognizes the authors of the work as the first owner to its copyrights[vii].From the above statements it is very clear that even though sound recording is treated as one complete asset of the producer,it doesn’t snatch the individuality or copyright of the authors which is statutorily protected.
And section 57 of Copyright (Amendment) Act,2012 grants a special right to the authors otherwise known as moral rights.It was granted on the basis of Article 6 of Berne Convention which distinguish the moral rights from economic rights.This section prevents the interest of authors irrespective of the contracts.Thus the author of a work shall claim authorship of a work and also claim damages in case of any distortion or modification or mutilation of his work even after the assignment of said copyright wholly or partly.Under this section an author can protect his/her honour or reputation being prejudiced by any other acts after assigning his copyright.Other than the right of claiming authorship,the legal representatives of the author can also exercise their moral rights[viii] enshrined under section 57 of the Act.
Therefore the Court held that Ilayaraja,the famous music composer has the right to claim to authorship of his musical works under section 57(1)(a) despite of the assignment made by him for the purpose of sound recording.
Performer’s rights :
We have seen what are the rights that music composers and lyricists have in the above words.As we have seen earlier,a composer can claim copyright for his under the category of musical work and a lyricist can claim copyright for his work under literary work.Then what about the rights of a singer whose voice plays an important role in making a song special ? Do they have any rights as that of composer and lyricist ? Yes,they do have rights which are called ‘performer’s rigjhts’ because according to section 2(qq) a singer is a performer.According to section 38 of Copyright (Amendment) Act,2012 the performer’s right will subsist for fifty years from the date of performance.The performer’s right is an exclusive right[ix],subject to the provisions of this Act,to do or authorize other person to do any of the following acts namely,
a. To make sound recording or visual recording of his performance,including-
- Reproduction of it in any material form including storing of it in any medium
- Issuance of copies to the public not being the copies already in circulation
- Communication of it to the public
- Selling or giving it on commercial rental or offer for sale
b. To broadcast or communicate the performance to the public except where the performance is already broadcast.
If there is any written agreement between the producer of cinematograph film and singer with regard to incorporation of his performance in his film,then he shall not object to the enjoyment by the producer of the performer’s right in the same film unless there is any contract to the contrary.But if the producer uses his performance for any commercial use,then the singer is entitled to get royalties for such performance.
Other than performer’s right,the performers also have moral rights[x] in which he can claim to be identified as the performer of his performance except where the omission is dictated and also he can restrain or claim damages in there is any distortion,mutilation or other modifications which would affect his reputation.If any part of the performance is removed for the purpose of editing or for technical reasons then it cannot be termed as modification and shall not be deemed to be prejudicial to the reputation of the performer.In this way,the rights of singers are also protected under Copyright (Amendment) Act,2012.
Conclusion:
As said before,it is very difficult to determine the owner of a song as it has multiple faces to consider.To be exact,the facts of a case will be taken into consideration while determining the ownership of a song.And not forget to mention that terms of contracts are very important since it decides the rights of authors,term of assignment,the amount of royalty to be paid,etc., If any person miscarry the terms of contracts,it may lead to relinquishment of his rights too.So it is very important for the parties to know their rights and duties as mentioned in the Act before entering into any agreement regarding copyright.Since each person i.e composer,lyricist,singer and producer has contributed their part to form one song,they should not be neglected from paying royalty for using their works other than from cinematograph film.A song is merely like a chair which is supported by four stands/pillars (Composer,Lyricist,Singer and Producer) and it is totally unfair if the money and fame earned by such songs are directed to one single stand-producer and it should be divided equally among the other pillars also according to their contributions.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i] Copyright (Amendment) Act,2012, S 14.
[ii] Copyright (Amendment) Act,2012, S 13.
[iii] Indian Performing Right Society Ltd V. Eastern India Motion Pictures Association, 1977 AIR 1443,1977 SCR(3)206.
[iv] IPRS V.Aditya Pandey & others, S.L.P (C) Nos. 2380-2381 OF 2014.
[v]M/s.Agi Music SDN BHD & Another V. Ilayaraja & Another, LNIND 2019 MAD 3248.
[vi] Copyright (Amendment) Act,2012, S 13(4).
[vii] Copyright (Amendment) Act,2012, S 17.
[viii] Copyright (Amendment) Act,2012 S 57(2).
[ix] Copyright (Amendment) Act,2012, S 38A.
[x] Copyright (Amendment) Act,2012, S 38B.
