NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

SUBJECT: INTELLECTUAL PROPERTY RIGHTS

TOPIC: SYNOPSIS OF PROTECTION OF MUSICAL WORKS: A COMPARATIVE
STUDY OF US AND INDIA

SUBMITTED TO:
PROF. Amarendra Kumar Ajit
[ASSISTANT PROFESSOR OF LAW]
SUBMITTED BY:
AVILASH KUMBHAR [2012/ B.B.A. LL.B. / 015]

Session: July- November, 2015

INTRODUCTION
A copyright is a form of intellectual property since the product over which the right is granted is
the result of utilization and investment of intellect. It grants a monopoly rights restraining others

from exercising that rights which has been conferred on the owner of copyright. Copyright is
recognized in original musical work under Copyright Act 13(1) (a). Section 2(p) defines
Musical Work as a work consisting of music and includes and graphical notation of such works
but does not include any words or any action, intended to be sung, spoken or performed with the
music.
There are generally two fundamental criteria for a work to qualify as copyrightable i.e.
originality and fixation. When an author provides his work to anyone for further work to be
initiated and the end result is different but a part is derived from the former work of the author
and even though will be eligible for copyright. For infringement 2 requirement needs to be
fulfilled, 1st being Ownership and second is copying of the original act. This project goes in
detail about these two fundamentals. It explains how the courts rely more on circumstantial
evidence because direct evidence is not possible and no actual work of copying is o record
except for the alleged act itself.

Circumstantial evidence requires the act of access and

substantial similarity. The project goes on to explain the difficulty in substantial similarity test
i.e. only form is protected not the underlying idea and the form includes both literal and not
literal components and the judicial interpretation on how similar the expression must be. Use of
Expert evidence has also dealt with in this project

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CHAPTERIZATION
1. INTRODUCTION
2. COPYRIGHT OF MUSICAL WORK IN INDIA
2.1 General Overview
2.2 Concept of Ownership and Authorship
2.3 Nature of Rights Available to the Author
2.3.1 Economic Right
2.3.2 Moral Right
2.4 Terms of Copyright
2.5 Infringement of Copyright
2.6 Exceptions to Infringement
3. COPYRIGHT OF MUSICAL WORK IN U.S.
3.1 Legal Framework
3.2 Scope of Protection of Musical Work
3.3 Calculus of Rights
3.4 Infringement
3.5 Limitation on Liability
3.5.1 Fair Use
3.5.2 Contributory Infringers
3.6 Contract Interpretation with respect to New Use
4. PROTECTION OF MUSICAL WORK AN INTERNATIONAL PERSPECTIVE
5. PROTECTION IN DIGITAL AGE

REVIEW OF LITERATURE
V.K Ahuja1 discussed the protection of musical work under Indian Copyright Act 1957 with
specific reference to International Standards. The scope of protection which was earlier restricted
to literary and artistic work now extends to musical work also. The reason cited by him is
technological innovation.
Ralph S.Brown & Robert C. Denicola 2 give Substantial attention to protection of musical work
in United States. Copyright and its many cousins unfair competition, moral and economic

1 Law of Copyright and Neighboring Rights: National and International Perspective

Lexis Nexis 2007.
2 Copyright Unfair Competition and related topics bearing on the protection of
works of authorship- 10th Ed.
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rights continue to expand. It is a compilation of cases of United States developing law of

Copyright. In the face of emerging technologies, can either the Congress or the courts effectively
secure to authors the exclusive rights to their works? Who is an Author? What is a Musical
work? What are his rights and what, on the other hand is Fair use?
Micheal A. Epsteine3 which is divided into 3 parts i.e. national, international and EU. In the 1 st
part it discussed the subject matter of protection, condition, ownership, transfer, exclusive rights,
duration, infringement and remedies of both India and United States. The section dealing with
musical work has been referred to from this literature.
P.Narayanan4 expressed that adaptation of musical work are usually called arrangement. Each
such adaptation or arrangement is musical work provided there is a sufficient element of
intellectual creation there is no need for the ideas embodied in the arrangement be novel.
Pollack. W5 emphasized that copyright law and its subject matter are progressively fitting in our
day-to-day lives. The internet has shaped new potential for distribution of intellectual property
and music is at the front position of that insurgency. The author in this literature clarified very
well that the internet has become a new liberator of the music industry, but the author still failed
to show how musical works can be protected on the internet as he called it a savior of the music
industry.
Keyes J., (2004)6 proposed to reconsider if the present copyright regulation as to music bodes
well in relation to history, social and specialized substances of the world music since music
assumes a noteworthy part in affecting society now than even in America's history, it is
essentially not anymore important nor useful for copyright holders to secure their copyright the

3 Intellectual Property, 5th Ed. Kluwar

4 IPL Eastern law House 2001 3rd Ed.
5 Wendy Pollack , Tuning In: The Future Of Copyright Protection For Online Music In The Digital
Millennium, 68 Fordhan Law Review, 2445 (2008).
6 J.M Keyes, Musical Musings: The Case Of Rethinking Musical Copyright Protection, 10 Michigan
Telecommunications And Technology Law Review, 407-444 (2004).
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same way they have been capable for quite a long time. Rather it ought to be viewed as a
compulsory license framework that permits borrowing from pieces of music till of the borrower
pays a charge for doing as such.
Singh Rajneesh Kumar7, The issue of treating phonogram as a subject different from authorial
right category has been raised. This article proposes that the requirement of originality
differentiates a phonogram from other works under copyright law. It highlights the importance
of moral rights for phonogram producers and explores the possibility in the Indian act. The status
of phonogram in the digital environment has been examined to explore the possibility of any
amendment in the Indian law to face the challenges.
Authors rights over his creations, that is, copyright, was granted and later standardized in the
international conventions. However, the trade-off between the authors right over his creation
and its public dissemination has always been a debatable question. The TRIPS agreement under
WTO has set the copyright protection period for literary works at 50 years in order to ensure
minimum protection necessary to induce authors to create and disseminate their works. Although
India as a signatory to the WTO and other international conventions followed this norm, in 1991
the domestic regulation was amended to extend the period to 60 years. The driving motive was to
facilitate availability of the works of Tagore, the first Nobel Laureate of India, by keeping the
copyright with the right holder, Viswabharati Trust, for 10 more years. In other words,
strengthened property rights (and the consequent monopoly hold) were expected to augment
consumer welfare. The article8 analyses outcomes of this regulation and concludes that the
purpose has not been fulfilled, at least in the case of Tagores works.

7 Rajneesh Kumar, The Status Of Phonogram Producers Under Indian Copyright Law, Journal Of
Intellectual Property Law & Practice, 5(6) (2010) 429-434.
8 Bibek Debroy Debashis Chakraborty Arup Guha, Copyright Protection and Consumer Welfare, Global
Business Review, 6:1 (2005). Available At Http://Gbr.Sagepub.Com/Content/6/1/55.Full.Pdf+Html.
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RESEARCH METHODOLOGY
STATEMENT OF PROBLEM:
Unlike protection of inventions, copyright law protects only the form of expression of ideas, not
the ideas themselves. The creativity protected by copyright law is creativity in the choice and
arrangement of words, musical notes, colors and shapes. Whether there is any point of difference
in protection granted to musical work in India and U.S are the forces on this work. The right of
the copyright owner to prevent others from making copies of his works without his authorization
is the most basic right protected by copyright legislation. This work will analyze on what forms
the legal basis for many forms of exploitation of protected works.
SCOPE, OBJECTIVE AND SIGNIFICANCE
The primary object of this paper is to strictly deal with the protection of the musical work in
India and US comparatively and analyze the entire law. In doing so, the author also makes
references to nature of rights.
Methodology adopted for this paper is secondary sources of data available from the Manupatra,
SCC, Hein Online, and Intellectual Property law Journal, various online pages and most
importantly the books of copyrights. Thus theoretical framework is used to study the entire
concept of copyright protection and licensing the use of such work in India as well as in US.
The author in this paper restricts the scope of the paper to the issues raised in the research
question there by do not claim to be dealt with any other research questions as prescribed in the
paper only.
RESEARCH QUESTION

What is the position of protection of musical work in Indian and US copyright Regime?
What are the nature of rights available in India and US?
What is legal framework of exception to liability of infringement?
In case of infringement, what are the underlying fundamentals to decide on?
What is the position of protection in the digital age?
Where does the protection under Indian regime stand as compared to U.S.?

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BIBLIOGRAPHY:
BOOKS

P. Narayanan, Intellectual Property Law, 3rd Edition, Eastern Law House.

Ed- Baden Powell, Intellectual Property and Media Law Companion, 4th Edition,

Montagu & Weston Legal Companion.

Rama Sarma, Intellectual Property Laws, Edition 2009, Volume 2, Lexis Nexis

Butterworths Wadhwa.
Dr. V.K. Ahuja, Law of Copyright and Neighboring rights: National and International

Perspectives, Lexis Nexis.

Vikas Vasishth law and practice of IP in India, Bharat Law House 1999
Melville B. Nimmer and David Nimmer, Nimmer on Copyright (Matthew Bender & Co.
1998).

ONLINE SOURCE

Jstor.com
HeinOnline.com
Manupatra.com
IndianKanoon.com
Niscair.res.in
Spicyip.com
www.oxfordhandbook.com
www.online.sagepub.com

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