Professional Documents
Culture Documents
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ë is man¶s inherent right over his intellectual property which emanates from
monopolistic right to reproduce work and for certain works a right of public performance.
Copyright is ³the exclusive right given by the law for a certain term to an author,
composer etc (or his assignee) to print, publish or sell copies of his original work.´1
An artistic, literary or musical work is the brainchild of the author, fruit of his labor and so
them with the exclusive right to reproduce the work for a limited period and to prevent
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Copyright subsists in a work i.e. some tangible form.
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is defined as ³a work consisting of music and includes any graphical
notation of such work but does not include any words or any action intended to sung
An essential ingredient of a musical work is that it be sensed by the human ears but
mere sounds are not necessarily music. Music is that which is regarded by a reasonable
According to sec 13(a) of The Copyright Act, 1956 (hereinafter referred as the µAct¶),
copyright subsists in original musical work. Here µoriginal work¶ refers to work which is
originated from author and not a copy of other¶s work. To decide whether a given
musical work is original work, one must see whether sufficient skill or labor has gone
To be entitled to copyright there must be novelty and originality in the work of music.
But the musical piece, to be original, need not be absolutely new production; so, a new
arrangement of an old piece may be the subject of copyright, if it is more than a mere
copy with variations; the new composition must indicate exercise of inventive genius as
Things like tempi and phrasing can form part of musical work provided that they are
Any adaptation of an existing musical composition in which a certain amount of skill and
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labor has been employed in its creation will amount to original musical work and a new
It is not necessary for musical work to be copyrightable that it should possess musical
merit. A musical work need not be written down to enjoy copyright protection, there no
authorship.
For a right to be protected there must be someone holding those rights i.e. there must
In case of copyright in musical work the provisions regarding the owner are incorporated
Sec 17 says,
Provided that-
(a)..............................
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(b) subject to the provisions of clause (a), in the case of a photograph taken, or a
(c) in the case of a work made in the course of the author s employment under a
contract of service or apprenticeship, to which clause (a) or clause (b) does not apply,
(ffa) "Composer', in relation to a musical work, means the person who composes the
After reading the three provisions together one can say that owner of the copyright
in a work is
of the work which
A µcontract of service¶ is not same as the µcontract for service¶. In a contract of service
employer ±independent contractor relationship. In the former case the copyright with
respect to work of employment rests with the employer but in the latter case the
The copyright in a work done by an employee in his private time and not in the course of
employment is in the employee.11 The reason behind it is that when a work is produced
by someone under an employment then such work is part of duty assigned to him.
In a contract of service the employer influences a sufficient degree of control over the
employee with respect to a given work viz. what should be done? When it should be
done? And how it should be done? Etc. On the other hand in a contract for service the
of Sec 17 of the Act implies that a composer can have copyright in his work done even
Example: When a film producer commissions a musical work for remuneration, he gets
the right to incorporate the music in his film and all other rights connected with the film.
The composer, however, retains the copyright in the work in all other respects. In the
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given case authorship differs from ownership in the sense that here the author is the
composer but the first owner of the work is the employer who hired the composer.
When a person creates an original musical work then he becomes the owner of various
rights in respect to that work by virtue of copyright in that work. These various rights are
incorporated in Sec. 14 (a) of the Act. And what is protected by the copyright act is
infringement of these very rights of the owner of copyright in a given musical work or
any other person who has acquired any or all of the rights by license or assignment.
The provisions regarding infringement are incorporated in Sec 51 of the act. These
rights and their infringement are closely related terms as µthere can be infringement only
where there are rights.¶ So for this reason we will study the two headings i.e. rights and
Now ô says about the rights which are conferred on an owner of copyright in
musical work (apart from literary and dramatic works) under the Act. It is as follows:
exclusive right subject to the provisions of this Act, to do or authorize the doing of any of
the following acts in respect of a work or any substantial part thereof, namely:-
programme, -
i. to reproduce the work in any material form including the storing of it in any
ii. to issue copies of the work to the public not being copies already in circulation;
iv. to make any cinematograph film or sound recording in respect of the work;
vii. to do, in relation to a translation or an adaptation of the work, any of the acts
These rights are exclusive rights but as provided in the sec, are subject to other
provisions of the act. Being a property rights these rights can be sold or licensed and
from the point of view of the owner also he need to know that which are his rights in
respect of his work by virtue of copyright in it. Protection is granted against the invasion
of these exclusive rights by a person other than the owner of copyright in a particular
work.
means the owner of the copyright has the sole right to exploit the
work and further he has right to exclude all others from reproducing his work without his
permission.
These rights are economic rights which can be
exploited by the owner of the copyright in the given work for economic gain, by himself,
with the exclusion of others or the owner may license or assign these rights to any other
person for a consideration to exploit the same. But protection is provided to these rights
Such license or assignment can be given of all or any one or all of the acts provided in
Sec. 14 (a) in respect of the work or any part of it. Here word µsubstantial
part¶ construed depending on the quality of work and not the quantity of it.
Now ô of the act says about the infringement of copyright in a given work. It is as
follows:
(a) when any person, without a license granted by the owner of the copyright or the
(i) does anything, the exclusive right to do which is by this Act conferred upon the
(ii) permits for profit any place to be used for the communication of the work to the
the work, unless he was not aware and had no reasonable ground for believing
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or
or
(ii) distributes either for the purpose of trade or to such an extent as to affect
¯! that nothing in sub-clause (iv) shall apply to the import of one copy of any
"infringing copy".
So this section tells us about the infringement of copyright in a musical work. When a
person has a copyright in a musical work and any other person produces or reproduces
the work or any substantial part thereof in any material form, he commits an
Copyright in a work is deemed to be infringed when any person, without license granted
by the owner of copyright does anything, which is the exclusive right to do conferred by
It is not necessary that the alleged infringement should be an exact or verbatim copy of
the original but its resemblances with the original in large measure is sufficient to
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So a copyright in a musical work is protected from, infringement by person who has no
A combined reading of sec 14(a) i with sec 51 give us an overview of rights which are
protected under copyright in a musical work. So now we will take these rights and
[clause (i) of sec 14 (a)]. The first exclusive right in respect of a
copying. Such reproduction can be in any material form including storing the
While deciding whether substantial part of a musical work has been copied one
has to see whether the alleged infringement has made use of a substantial part
of skill, labor and taste of the original composer. A relative short part can amount
to substantial if what has been taken is the vital or essential part of the work.14
Reproduction in copyright law means copying and a copy is one which so near to
does not mean only an exact reproduction but includes any copy of work which
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What amounts to reproduction in material form depends upon the nature of the
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[under clause a(ii) of Sec 14] and µcommunication to public¶ [under clause a(iii) of
Sec 14] constitutes publication so we will try to understand both under this part.
means act of first release in market of any particular copy of the work
including the original. It does not apply in the case of copies already in
Copies of a work are issued to the public when they are exposed for sale
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license of the owner of the copyright. This sec. makes it clear that there is
× ' ' means making any work available for
Here it is important that the work should be made available to the public. It
is not necessary that the public should avail themselves of the work i.e.
This exclusive right relates only to communicating the work to public and
infringement of copyright.
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[clause (iii) of sec. 14(a)]. This is third
a) Whether there is any injury to the owner of the copyright by virtue of such
performance.
author¶s invention. Any performance which is not domestic or quasi domestic will
be regarded as in public even if only a few members of public are present or that
If the audience is one which the owner of the copyright could fairly consider as
In a private performance the audience does not enjoy the work under the
This exclusive right is confined to performance of the work in public which shows
that a copyright owner cannot prevent others from performing the work in private.
infringement.21
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³Performer' includes an actor, singer, musician, dancer, acrobat, juggler,
conjurer, snake charmer, a person delivering a lecture or any other person who
makes a performance;22
Here the word performance is defined only in relation with the performers¶ rights.
in public.´24
whether or not the act complained of as infringement would, if done by the owner
conferred upon him. The words public must be construed primarily in the light of
the relationship of the audience to the owner of copyright and not in the light of
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The proprietors of a factory, to increase efficiency and output, relayed music from
gramophone records to their 600 employees. The court if appeal held that the
The music which was broadcast over radio was played through a loudspeaker in
a private room adjoining a public restaurant in such a manner that the music was
a) "adaptation" means,-
and
(v) in relation to any work, any use of such work involving its re-arrangement or
alteration;
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Indian music is written down in terms of swaras in particular notation. A new
swara structure.29
translation without the consent or the license of the owner of the copyright in
[Clause (iv) of Sec 14(a)]. If a person uses a musical composition while making a
But situation will be different if such composer is under employment of such other
person (viz. producer etc.), in such case the first owner of the copyright will be
that other person. And in such situation if a third person wants to make use of
such composition in his work than he will have to take permission of such
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There are three types of remedies against the infringement civil, criminal and
administrative.
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So, from above discussion it is clear that the Act provides a variety of rights to
the owner of copyright in musical work as a fruit of the skill, labor and innovation
from musical industry. And in today¶s competitive environment and ever growing
musical industry the importance of protection of copyright in musical work has
immensely increased. And to protect these rights the statute provides various
safeguards as discussed above. And with the piracy of such musical work on all
time high it deem necessary also to provide statutory protection to the owner of
× Carter, Ruck & Skone James. Copyright Modern Law and Practice. London. Faber
&Faber. (1965).
× Cornish, W.R. Intellectual Property. Delhi. Universal Law Publishing Pvt. Ltd. (2003).
× Garnett, Kevin, Gillian Davies, & Gwilym Harbottle. Copinger & Skone James on
× Karkara, Dr. G.S, M.L.Chopra and Justice Gyanendra Kumar. Lal¶s Commentaries on
× Narayanan. P. Copyright and Industrial Designs. New Delhi. Eastern Law House. (1995)
& (2003).