For a country as culturally rich and diverse, and having a musical heritage ranging back to the millennials, spread across various geographical locations and forming a very crucial aspect of the socio-religious life of the people, music is something which transcends the boundaries of time and age. Serving the acoustic palates of many generations, is created not only from just instruments but also human thought; each note is peculiar to itself, each sound as delicate as the other, how do you differentiate them, more importantly, how do you protect them?

Well, this artistic curio which can even generate monetary value for the originator is dealt with the appropriate manner by the respective laws, primarily the intellectual property law and the law of contracts.

The IPR provide a wide framework of rights in law that protects the music created by the human mind, primarily including copyrights, trademarks, patents, trade secrets, Geographical Indicators etc. provides intangible work the same protection and recognition as one would to a tangible artifact.  For the purpose of this article, we will deal with the laws that cater to the various palates of musical realm very consistently.

Copyright

Sounds produced in India are preserved by a copyright; it protects a creator’s original dramatic, artistic, musical or literary work, these are mentioned in the Copyright Act, 1957 and supplemented by the Copyright Rules, 1958, govern the protection of Copyrights in India.

It mandates that a musical composer, or lyricist or any classical music, has the copyright of the original form, from the day they are produced, registration of the work is not necessary for obtaining the copyright. The Act provides a procedure to register the copyright in the official records or with the registrar of copyrights, which gives the right to the owner to sue in case of any infringement. The documents purporting to be entries and extracts from the register certified by the registrar of copyrights are admissible as evidence in all courts without proof of original[1] form. India being a member of the Berne Convention[2] and the Universal Copyright Convention[3], has passed the International Copyright Order, 1958 which enables any work published in India to be treated the same if it were published in any of the member countries of these conventions.

After getting the work registered, an author has several rights that he can avail to generate an income from his sound, Section 14 of the Act mandates, A copyright provides the creator the right to prohibit or allow any other person to reproduce his work in any other form than its original one or make use of it for live performances at concerts, restaurants, cafes, etc or distribute the work through various mediums or broadcast in other forms than its original one and lastly translate it into any other language as he wishes to.

The term of the copyright is for the lifetime of the owner and sixty years after his death and in case of more than one owner then sixty years after the death of the last owner.

Section 2(d)(ii), (vi) define who is an author and for our purposes, a composer or any person in relation to any literary, dramatic, musical or artistic work. Sub-clause (p) talks about musical work which consists of music and includes any graphic notation of such work but does not include any words or actions intended to be snug, spoken, or performed with the music.[4]

Section 17 determines, who is going to be regarded as the first owner of a copyrighted work. It provides that in case of an artistic, literary or dramatic work, by the author which is created in the course of employment by the proprietor or under a contract for the purposes of publication in newspaper, magazine or similar periodical, in the absence of any contrary provision will vest with the owner of the said proprietor but for all other purposes will vest with the author.

The 2012 Amendment to the act has brought in substantial changes, it has introduced several monetary rights for the authors of musical work that are incorporated in cinematography and sound recordings, it provides that the authors of any literary and musical works who are incorporated in films or sound recording and are not part of films, have the right to receive royalties equal to the royalties received by the person who has been assigned such rights for exploitation of their works. These rights cannot be assigned or waived off by the right holders and in case of any agreement to that effect, will be declared void. Scriptwriters/screenplay writers are also protected under these provisions. The act expressly mentions that the right of author cannot be affected by any agreement, he has the right to claim the royalties or any other consideration payable in the utilization of the work.

The act also provides certain Moral rights to the creators, these are described in Section 57, the act has ascertained certain special rights to the authors, which exist even after the assignment of the copyright. They are exercisable by the legal representatives of the author as well, these include Firstly, the right claim authorship of their work, Secondly, to restrain or claim damages in case of any distortion, mutilation, or any other modification in their work and Lastly, against anything done with the work, which is prejudicial to the honour or repute of the author.

The Act provides for a Performer’s right, which determines that whenever a performer engages in any performance, he has certain special rights pertaining to his performance and for this purpose a performer is not someone whose name is not mentioned in the credits of the film. The term of these rights is 50 years and starts from beginning of calendar year which starts after the year of performance. These rights are:

Firstly, to make a sound or visual recording of the performance and the right to reproduce it in any form other than its original one, or issue special copies of it to the public, or communicates it to the public or using it in a commercial way he wishes to generate money.

Secondly, to broadcast or communicate the performance in any manner and in case of the producer broadcasting the same, the performer has the right to receive royalties.

The Copyright Act provides both civil and criminal remedies in case of an infringement of Copyright.  Infringement of copyright is when any person uses or converts, any copyrighted work in a manner which he does not have the right to do or does not have the owners’ permission, he has violated the copyright and is liable under the various provisions of this act. The remedies include injunction, damages, seizure order and destruction of infringing articles. The acts which would be considered infringement are: Copying and issuing the work of the author for sale, or Performing, showing, playing copyrighted work without appropriate license, or Making any adaptation or doing abovementioned acts with such adaptation.

Further if any person with knowledge or reasonable grounds for having such knowledge, makes for sale or hire or sells or lets for hire or distributes either for the purpose of trade or for any prejudicial reason against the author or by way of trade exhibits in public or imports the work into India, is responsible for such infringement.

There are Copyright societies, with the primary function of preserving the rights of the owners by granting licenses to business and other persons, for the exploitation of these rights. These societies collect license fee on the behalf of the originators and then provide them royalties after deducting their own collection and expenses fees.

Section 33 of the Act mentions these societies,  

Firstly, the Indian Performing Rights Society or IPRS, which administers right in relation to musical and lyrical work, on behalf of its creators. This includes licenses given for business firms who allow singers to sing this music in their premises

Secondly, Phonographic Performance Limited or PPL, it administers the right to commercially exploit such creations or phonograms or sound recording on behalf of its owners. The licenses are issued to places like cafes, restaurants who wish to play music on their premises.

Geographical indicators  

The second type of IPR that protect music are the Geographical Indicators, the act governing them is called Geographical Indications of Goods (Registration and Protection) Act, 1999, which provides protection to any agricultural or natural or manufactured or handicraft or spice or foodstuff goods, which are one of a kind, they originate in a particular place and have quality, reputation or characteristic which are essentially linked or attributable to the geographic place of their origin.

In the musical industry, the classical instruments which are a part of our musical heritage, specially originated in various geographical locations of India and possess the distinct quality, reputation or characteristics attributes, linked to their place of origin are given the GI tag. In India until now only three instruments have been given this tag, under the handcraft category, they are Maddalam of Palakkad from Kerala, Bobbili Veena from Andhra Pradesh and the Thanjavur Veenai from Tamil Nadu.

The Rights conferred upon registration of these goods are- Firstly, the right to obtain relief in case of any infringement of the GI tag, Secondly, the exclusive right to use the GI tag in relation to the good. The term for a GI tag is ten years following which they can be renewed from time to time.

Trademark

Trademarks are the title, name or symbol or any combination of them, used by companies to project their goods to the market. Its motive is to make the goods distinguishable so that can be differentiated from substitute goods, it provides the consumer the clarity of the brand and the promise of authenticity. In India, the Trade Marks Act, 1999, which is in consonance with the TRIPS agreement, is used to register the Trademarks of businesses, in the Trade Marks registry.

In India, sound marks are also recognized as unconventional marks under the Act, India’s first sound mark was granted in August 18, 2008, to Sunnyvale, California-based firm yahoo’s three note yahoo yodel by the Delhi branch of Trademark Registry. The term “mark” includes a device, heading, brand, label, ticket name, word, letter, numeral shape of goods, packaging or combination of any of them. It provides any mark which is ‘graphically representable’ and is indicative of a trade connection with the owner, the protection of this act.

Trademark rules define ‘graphical representation’ as the projection of a trademark for goods or services, in paper form. They should be representable on paper either in sound form, wherein the sound is written or like depiction by oscillogram; spectrum, spectrogram, sonogram. In cases where it cannot be reduced to a written form, they should have a clearly identified, particular or specific sound, which should be appropriately described in the registry.

Even though India provides trademark to sounds there is a need for guidelines for description, recoding and protection of such sound.

Musical Composers or lyricist or producers use brand names and logos for the distribution as well as differentiation. For these purposes, they use Certification Marks, defined under Section 2(e) of the Act, it includes marks from a company that can provide a good which conforms to a certain level of established standards. The ‘ISO 9000’ is the internationally used standards that are widely accepted for grant of a Certification Mark.

Registration is mandatory to exercise the right of infringement of trademark. The infringement includes the similarity in the mark, identical or similar in some aspect, the goods/services should be similar to what are under the registered mark, the marks should be used to conduct business and, in a manner, so as to render its using being of a trademark.  

Law of Contract

The last law that protects the interest of musicians, musical composers, lyricists, sound managers etc., is the mercantile Law of Contract. It is necessary for all the basic contracts formed by the dealers in the industry to conduct business smoothly it includes, all form various contracts for the production of music, for the induction of band members or transfer of rights of lyrics or sound or with collection societies and publishers or for recording and distribution of the music, for guest performances and remake or remixes or contract formed with the respective agencies and management who conduct your business or act as your agent.

For the purposes of such contracts, one needs to follow the procedure established in the Indian Contract Act, 1872. The basic elements of acceptance, promise, consideration etc need to be followed according to the provisions mentioned in the act.

Conclusion

The various laws mentioned above protect a wide spectrum of rights pertaining to the music industry. They provide a safe haven for musicians to let their imaginations run wild. The law is not exhaustive and there is scope for new types of musical creations to adjust and be protected as well. The current laws aptly fulfil the purpose of protecting the rights of creators and authors of music, there is scope for improvement which will come eventually with trial and error.