Copyright and Music Industry

Poorvi Chothani LawQuest 36 Maker Tower F Cuffe Parade Mumbai 400005

Applicable Laws
The Copyright Act, 1957 came into effect from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994 being the most substantial. The Copyright Act, 1957 continues with the common law traditions. The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of:
The Berne Convention of 1886 (as modified at Paris in 1971), The Universal Copyright Convention of 1951 and The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995.

Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions.

Applicable Laws
The Copyright Act requires the Central Government to: Constitute a Copyright Board headed by a Chairman Registrar of Copyrights is to be Secretary of the Copyright Board. The Copyright Board is a deemed civil court And all the proceedings of the Board are deemed to be judicial proceedings

Copyright - Current Affairs

Large, significant, rapidly growing copyright industry.

Extremely large piracy rate.

Copyright and Music Industry

I bought it so I own it, so I can use it how I like, when I like and

where I like!

What Can Be Protected?

Copyright protects the expression of an idea And not

the idea itself!!

Copyright Subsists In:

Original Literary Computer Software Dramatic Musical Works Artistic Works Cinematographic Films

Photographs
Sound Recordings etc.

MUSIC PIRACY
In India Music Piracy costs the industry Rs 6.5 billion a year. Piracy occurs due to availability of Pirated CDs, copying of cassettes and Internet and Peer-to-Peer download.

MOBILE MUSIC
According to the Cellular Operators Association of India (COAI), the mobile music industry (pre-loaded and downloads put together) in India is worth nearly Rs 500 crore, and is on the verge of overtaking the legal, conventional music industry.

Ownership of Copyright
The Author is the First Owner (In most cases) Proprietor of the Periodical, Magazine, Newspaper- Owns Publication Rights Photograph, Film, Engraving or Painting-commissioning entity Work Made in the Course of Authors Employment-Usually the Employer

Performers Rights
Subsists in a Performance Term: 50 years When Granting a right to Broadcast the Other Components of Copyright or Performers Right Do not get Licensed

Assignment
Copyright Can be Assigned as a Whole or in Parts By Written Contract The Act Requires that the Right Assigned Has to Be Specified Along With the Duration and Territory (10-5-1995 onwards) Carries the Whole Interest in the Right Assigned, Including the Right to Re-Assign

Licence
Exclusive Licence: Leave to do Something and a Contract not to let Another do the Same Thing

Term
Copyright is granted for:
Literary Works: 60 years from the death of the author (From the calendar year following the year of death)
Broadcaster Rights:25 years from the year following the first broadcast; Photographs and cinematographs, sound recordings, musical or artistic work, 60 years
the calendar year following the year of publication)

From

Limitations
Copyright is subject to certain limitations Statutory Licensing Fair Use Exceptions Compulsory Licensing

Infringement and Plagiarism

Use of Copyrighted Material Without a License or Right or in Contravention of the License Unless Subject to the Certain Exceptions

Work is licensed under the CCPL

Copyright and Music Industry

Traditionally copyright was introduced to protect printed material The legislature and the courts struggle to keep up as the Music Industry changes and new media emerge.

New Uses of Digitized Material

Mobile Music Music, Video, Images Downloads from the Internet Video Streaming (MTV Overdrive, a
broadband Internet video-on-demand service)

Podcasting Subscription digital music storesiTunes and MTVs Urge TiVo

Version Recordings
Remixes May Qualify for Independent Copyright In India maybe Eligible for Statutory License

Sampling
No sampling can be included in new compositions without a license or permission.

Ring Tones
Service providers need to take permission from the concerned company or the person under the Copyright Act.

Music Videos
The copyright of standalone music videos, not based on bollywood movies, lies with the producer of the video as the author who takes the initiative and responsibility for making the work

Those based on films may qualify as version recordings

Digital Radio Broadcast

Dissemination of a recorded unlicensed digital radio broadcast to the public would infringe the broadcast rights- protected under section 37.

Moral Rights
Even when a composer has given (or sold) the master rights and publishing rights to a music publisher, he/she will always retain "moral rights" to his/her compositions. This enables the composer stop his/her music being used for particular projects on moral, political or religious grounds.

Statutory License Version Recordings

Example: Under Section 52 of the Indian Copyright Act Notice to the Copyright Board Pay Statutory Royalty Make sound recordings of a copyrighted literary, dramatic or musical work 2 years after the first recording was made

Power of Police
Police officers, not below the rank of a subinspector, has the right to seize without warrant, all copies of an infringing work. If he is satisfied, and such copies and plates seized shall, be produced before a magistrate.

Remedies
Seize and Desist Notice Suit for Injunction Actual Damages Statutory Fines

Penalties
A minimum jail term of 7 days which can be extended up to 3 years and fines ranging from Rs. 50,000 (590) to 2,00,000 ( 2,350) depending on the nature and frequency of the offence.

Drawbacks
Police officers refrain from
implementing their powers. Police Officers are not aware of the law or what is entitled to copyright protection Right holders dont come forward to either lodge a complaint formally or fail to produce necessary proof/document before the court.

Future
Digital Rights Management is an effective way to manage copyright and protect authors rights

Helpful Changes
Preemptive laws in keeping with the European Union Copyright Directive which provides for the protection of "rights management information.

Conduct Awareness Initiatives to Educate the Public.

Increase the penalties in view of the high penalties levied in the US, which would act as deterrents. Mandatory to Affix Notices A flexible application of fair use instead of the present list of rigid provisions pertaining to fair dealing.

Proposed Amendment Provide for Digital Rights Management

Technologies used by publishers to control access to digital data like software, music and movies, apart from hardware. Restrict access to knowledge and allow rights holders to exercise their rights, prevent revenue loss due to illegal duplication of their copyright works, and enable more effective market segmentation. Proposed but not yet introduced in India.

INDIA

Estimated Trade Losses Due to Copyright Piracy (in millions of U.S. dollars) and Levels of Piracy: 2001-2005
2005 2004 2003 2002 2001

INDUSTRY

Loss

Level

Loss

Level

Loss

Level

Loss

Level

Loss

Level

Records & Music Business Software Motion Pictures Entertainment Software Books

70.7

55%

67.3

50%

6.0

40%

6.6

40%

NA

40%

265.1

74%

239.0

74%

187.0

73%

257.7

70%

256.0

70%

NA

NA

80.0

60%

77.0

60%

75.0

60%

70.0

60%

65.2

86%

59.5

86%

113.3

84%

NA

NA

NA

90%

42.0

NA

38.0

NA

36.5

NA

36.5

NA

37.0

NA

TOTALS

443.0+

483.8

419.8

375.8

363.0

Conclusion
Respect copyright for what it is, a limited monopoly on certain forms of exploitation and use.
Ripping a CD is not theft in the way that stealing a disc from a shop is! But it is still the use of content in a way that is not envisaged by the copyright owner.

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