COPYRIGHT PROTECTION FOR MUSICAL WORKS : Comparative

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COPYRIGHT IN MEDIA:
AN OVERVIEW
PRESENTED BY :PRIYANSHA JAIN & MEGHA ARORA
SURI AND COMPANY LAW FIRM
PRESENTATION CHART
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Introduction
Rights under copyright
International Perspective
Industries where copyright subsists
Musical Work and Sound Recordings
Copyright in Musical Works
Copyright in Sound Recordings
Cinematographic Films
Copy Right in Cinematographic Films
Difference between Author and Owner
Licensing Organizations
Overview of Infringement under Copyright
Conclusion
INTRODUCTION
Meaning of Copyright
GENERAL DEFINITION
A bundle of intangible rights granted by statute to
the author or originator of certain ORIGINAL
LITERARY OR ARTISTIC PRODUCTIONS, whereby, for
a limited period, the exclusive privilege is given to
that person (or to any party to whom he or she
transfers ownership) to make copies of the same for
publication and sale
COPYRIGHT DEFINED UNDER SECTION 14 INDIAN
COPYRIGHT ACT, 1957
 Copyright granted for originality in expression and not in idea.
 OBJECT OF COPYRIGHT
 Grant protection to the authors against unauthorized
reproduction.
 Encourage the authors to engage themselves in creative works.
 TENURE
 60 years, in case of original literary, dramatic, musical and
artistic works the 60 years period is counted from the following
the death of the author.
 Registration not compulsory, but necessary in case of filing for
infringement.
RIGHTS UNDER COPYRIGHT
©
Moral Rights
Section 57
Economic Rights
section 14
Right of reproduction
Right of Public
Performance and
Communication to the Public
Right of Adaptation
Right of Translation
Neighboring
Rights
Right of paternity
Right of integrity
INTERNATIONAL REGIME OF
COPYRIGHT
1. THE BERNE CONVENTION, 1886( AS REVISED IN 1971)
 Berne convention for literary/ Artistic works was adopted at Berne, Switzerland in
September 1886
 Main object was to protect the copyright owner of the member countries
 It has 146 member countries( Including India )
Regulations/ obligations on the member states
 National Treatment given to all member countries (Article 5)
 Member states to provide moral right to the authors (Article 6)
 Economic right Such as the right of translation (Article 8)
 Duration of protection, during the life time of the author and 50 years
after the death of the author (Article 7)
Berne convention protects the work outside the country only on the condition that the
author is the member of the national company
2.
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TRADE RELATED ASPECTS OF THE INTELLECTUAL PROPERTY RIGHTS ( TRIPS) 1994
TRIPs agreement is a part of WTO which came into existence in 1995
Main object was to harmonise the different laws on the IPR, in various countries
TRIPS mandates the member countries to amend their intellectual property laws
MAIN FEATURES OF TRIPS
 TRIPS recognizes the basic principal of Copyright i.e. copyright exists in expression
not an idea
 Establishment of the dispute settlement process
 TRIPs gives freedom to the member countries to determine appropriate method of
implementing the provisions of the agreement
3.
ROME CONVENTION ( October 1961)
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Provisions under the convention do not affect the Berne convention
RIGHTS PROVIDED UNDER THE ROME CONVENTION:
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In relation to performer
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In relation to producers of phonograms
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Broadcasting and communication to the public
Recording of an unfixed performance
Reproducing a fixation of performance
The right to authorize or prohibit direct or indirect reproduction
In relation to broadcasting organizations
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Right to authorize or prohibit simultaneously broadcasting
Fixation of their broadcasts
Reproduction of unauthorized fixations of their broadcasts
INDUSTRIES WHERE COPYRIGHT
SUBSISTS
Music
Motion Picture
News and Broadcasting
Advertising
Publishing
Internet
Photography
Fashion
Sculpture and Designing
Architecture
Musical Works and Sound Recordings
•
Both Musical Works and Sound Recordings are eligible for
copyright protection.
• Musical Works – S. 2(p) - work consisting of
music and includes any graphical notation of
such work but does not include any
words or any action intended to be sung, spoken or
performed with the music
• Composer, in relation to a musical work, means the person
who composes the music regardless of whether he records it
in any form of graphical notation;
• Sound Recordings - S. 2 (xx) - Recording of sounds from
which such sounds may be produced regardless of the
medium on which such recording is made or the method by
which the sounds are produced;
• Performer - includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering
a lecture or any other person who makes a performance.
• Performance - means any visual or acoustic presentation
made live by one or more performers;
COPYRIGHT IN MUSICAL WORKS
• A musical work would involve a person
‘composing’ a piece of music, arranging
it, and giving it a melodic structure or form.
• It does not include playing and recording
the musical creation. Merely ‘composing’ it would
suffice.
• The addition of lyrics to a musical work
is separate, and does not come within its
definition.
• Lyrics are a set of words written, usually corresponding and intended
to be combined with background music or vice-versa.
• Musical Works are converted to a tangible form via sheet music,
tablature and graphical notation.
CINEMETOGRAPHY
Includes
• Feature film, Documentary,Video,TV film
• "cinematograph film" means any work of visual recording on any
medium produced through a process from which a moving image
may be produced by any means and includes a sound recording
accompanying such visual recording and "cinematograph" shall
be construed as including any work produced by any process
analogous to cinematography including video films [section 2(f)]
• Author is the producer [section 2(d)(v)]
COPY RIGHT IN CINEMETOGRAPHY
• In the case of film – to make a copy of the film, including a photograph of any
image forming part there of;
– to sell or give on hire, or offer for sale or hire, any copy of the
film, regardless of whether such copy has been sold or given on
hire on earlier occasions;
– to communicate the film to the public.
Key points
• Films contain a number of separate copyrights, including copyright
in the screenplay or narration and in the visual images and
material incorporated into the soundtrack, such as music and
recordings.
• If you’re making a film, you will usually need to get clearances
for any third party copyright material which appears in a shot
or which can be heard on the soundtrack.
• You will usually need legal advice on contracts that deal with
distribution and licensing of films.
AUTHOR AND OWNER COPYRIGHT
 Section 17 of the Indian Copy right act provides for the rights of the author and
the owner
•
Normally, the creator of an artistic work / literary / dramatic work, the author is
the owner of the work unless he has done something within the course of his
employment ;
•
In case the author has done something within the course of its employment the
owner is the employer at whose instance the work has been done unless there is
any agreement contrary to the same.
•
in the case of a work to which the provisions of Section 41 apply, the international
organisation concerned shall be the first owner of the copyright therein.
For example
AUTHOR :
– in relation to a musical work, the composer S. 2 (d) (ii)
– in relation to a cinematograph or sound recording the producer; S. 2(d) (v)
HOUSEFULL CASE (2011 (1) CHN 341)
• Dispute – The song “apni to jaise’ from the 1970’s movie
“Laawaris” was used in the 2010 movie “Housefull”.
• Ratio Decidendi:
 When a composer does any work in the course of employment
of contract, the employer shall in absence of such contract
becomes the first owner of the copyright
 Assignee of copyright is entitled to the right to grant licenses
in respect of contract works to third parties.
LICENSING AUTHORITIES
PHONOGRAPHIC
PERFORMANCE
LIMITED (PPL)
THE INDIAN
PERFORMING RIGHT
SOCIETY LIMITED
(IPRS)
 DIFFERENCE BETWEEN THE TWO LICENCING
AUTHORITIES
 PPL represents record companies whereas, IPRS
represents lyricists, writers, composers and
publishers
INFRINGMENT- AN OVERVIEW
WHAT CONSTITUTES INFRINGEMENT (Section 51)
 To do without authority or license something which only the
owner of the copyright has the exclusive right to do.
 It is not necessary that the alleged infringement should be an
exact copy of the original but its resemblance with the original
in the large measure is sufficient to indicate that it is a copy.
(AIR 1978 SC 1613) [R.C. Anand vs Delux Films].
FACTORS FOR DETERMINING THE QUESTION OF INFRINGMENT:
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Casual Connection
Sub Conscious Copying
Indirect Copying
Substantial Taking
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