ROLE OF IPR IN MUSIC INDUSTRY

Author: Manjima, 4th year, B.A LL.B, SDM Law College, Mangalore

INTRODUCTION

Music has the power to bring people together, regardless of the barriers. People from different cultural backgrounds perform together and music is heard and enjoyed by them no matter the language or any other cultural barrier. Music helps in shaping cultures of the people. In this article, the role of IPR in the music industry is explained. The works of Artists are protected by copyright, Trademarks, Patent laws and what is the need for IPR in the music industry. With digital globalization the artists have greater exposure and the challenges faced as its impact.

 IPR IN THE MUSIC INDUSTRY

 Music is something of lasting value to the society, to the economy and to our culture. Besides its intrinsic human and cultural worth, the economic value of music flows from the intellectual rights associated with original works, their performance and dissemination.The myriad commercial deals taking place within the music industry every day is based on these rights.[1] Among the existing IP rights like copyrights, design rights, trademarks and patents; copyright and related rights are of greatest relevance to musicians.[2] Music is something which can be easily copied and sold therefore there is a high risk of piracy revolving around the music industry. This is where IPR comes into play by protecting the rights of the owners.

Intellectual Property refers to creations of the mind such as inventions; literary; and artistic works; designs; and symbols, names and images used in commerce.[3]  Intellectual property is not a single property but also a bunch of intangible property.[4]

By giving recognition and rewards to the ownership of creative works stimulate further inventive and creative activity which, in turn, stimulates economic growth.[5]Therefore it is essential to protect these rights. Every intellectual property right lapses after a certain period. This is known as “sunset clause”. Every exclusive right is limited by time. After the stipulated period, the copyrighted work goes to the public domain.

COPYRIGHT PROTECTION LAW

Copyright is defined as the “exclusive and assignable legal right, given to the originator for a fixed number of years to print, publish, perform, film or record literary, artistic, or musical material.[6]Copyright is generally understood as a right or license free copying. Copyright is a legal right used to prevent others from illegal copying.[7] Copyright protects the expression of ideas: ideas alone are not protected. It means copyright does not cover ideas or concepts, procedures, methods and information themselves, only the form or manner in which they are expressed.

Copyright is the bedrock of the music industry. In simple words, Copyright is a set of rights for the owner who is recognized and rewarded for their creative contents. The music itself, including the lyrics, the musical composition and sound recording are protected under copyright law. The artists invest their so much time and effort into creating art. The music companies, musicians, songwriters and producers use the rights granted to them in copyright law to generate income from their music.

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematographic films and sound recordings.[8] In fact, it is a bundle of rights including rights of reproduction, communication to the public, adaptation and translation of the work.[9] It means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever is with the artist or producer.[10]

The Berne Convention aims to protect the rights of authors’ literary and artistic works as effectively as possible.[11]In the Berne Convention several countries are members of it, and by joining, these nations constitute a Union that pledges to protect authors’ literary and artistic works.[12] Similarly, the TRIPS Agreement seeks to protect its member nations’ intellectual property rights by requiring each member nation to offer a fellow member country’s nationals the same treatment like its own nationals with regard to IPR protection.[13]

The Universal Copyright Convention follows the lead of the Berne Convention and requires that each contracting state make the effort to provide satisfactory and effective copyright protection to authors of literary, scientific, and artistic works.[14] Copyright comes into effect immediately, i.e. as soon as something that can be protected is created and ‘fixed’ in some way, e.g. on paper, on film, as a sound recording etc.[15]

Copyright law aims to foster and protect creativity. Copyright provides the author with control over his work.[16] For example, issue of sampling music, where artists use small parts of other songs in creating their own work,[17] has ignited several copyright infringement suits. [18] In particular, Bridgeport Music Company has brought hundreds of copyright infringement suits, complaining that artists infringed by sampling.[19]The United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”), in Bridgeport Music v. UMG Recordings, held that using even a relatively small portion of an original work is enough to constitute substantial similarity for copyright infringement actions. [20] “Transformative work” means conversion of existing work into new expression, meaning and message. Transformative use doctrine has been propounded in the U.S. which really helps to figure out whether work is fair use or not irrespective of four determining parameters of fair use mentioned in section 107 of Copyright Act 1976. [21]

Copyright infringement is the unauthorized use of material that is covered by copyright law, in a manner that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. For electronic and audio visual media, unauthorized reproduction and distribution is occasionally referred to as piracy.[22] The infringement of copyright takes place by reproducing the work in any material form, issuing copies of the work to the public not being the copies already in circulation including the work in any cinematographic film, making an adaptation of the work, communicating the work to the public, if aware that such act shall amount to infringement of copyright, making, selling, letting on hire, distributing, importing or holding trade exhibits in public of the infringed work.[23]

In January 2010,The  renowned Indian film music director Ilaiyaraja, who penned most of the musical hits for the South Indian film industry in the 1970s and 1980s, warned other players in the Indian film music industry to stop using his songs without prior permission and expressed his desire for stronger copyright laws.’ He told that advertising agencies, television channels, and TV show producers should all obtain permission from his licensing agency, Agi Music, before using his songs in any other productions. [24]

When there is a violation or an infringement of an intellectual property, it becomes the sole right of the Intellectual property holder to obtain a remedy for the infringement of something that he has acquired with a lot of hard work and tremendous efforts. Hence, it is necessary to grant remedies to the intellectual property holders.

TRADEMARK PROTECTION LAW

A trade mark is a visual symbol which may be a word, letters, numerical, name, sign, signatures, symbol, design, or an expression distinguishing products or services provided by an individual or a company.[25] It is also popularly known as “Brand name”.

A band name like Beatles, or a musician’s stage name like Prince or even their own personal name like Michael Jackson, is protectable as a trademark and a performing artist’s fan lists, venue contracts and other valuable secret information are trade secrets.

A trademark not only gives the trademark owner the exclusive right to use the mark but also allows the owner to prevent others from using a similar mark that can be confusing for the general public.[26] Once registered, trademarks are protected legally and the owners can sue persons for unauthorized use of their trademarks.

Recording labels always want to reduce an artist’s royalty in numerous ways. Almost every record label includes clauses that ensure that every expense on record production is recouped from the artist’s royalty on the recordings and this brings about a huge number of disputes. Some of the likely limitations on an artist royalty base includes packing discount, breakage allowance, free goods and packaging discount, CD rate discounts and merchandising.[27]

Rights Conferred: The owner of a registered trademark must be granted the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered, where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion must be presumed (Article 16.1).[28]

According to the general rule contained in Article 7(1) of the Berne Convention as incorporated into the TRIPS Agreement, the term of protection shall be the life of the author and 50 years after his death. [29]

PATENT PROTECTION LAW

A patent is an exclusive right granted by a country for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.[30] To get a patent, technical information about the invention must be disclosed to the public in a patent application.[31] The use of patenting is preventing others from making, using, and selling  inventions for a fixed period of time. In the music industry patents are not of much importance.For instance,if a musician invents a new instrument or a new part of an instrument, those are protectable under patent law.

In general, the invention must be new and should be useful or can be applied in industries.[32] The person who receives a patent for his invention has an exclusive right to prevent others from making, using, selling or distributing the patented invention without permission.

NEED AND RELEVANCE OF PROTECTING THE MUSIC INDUSTRY THROUGH IPR

The rapid technological development in entertainment industries has made it inevitable for the creators to protect their contents. Intellectual Property is very important for musicians and producers to ensure that their work is protected. Musicians are able to earn money from their works, either in the original form or in altered forms. It is very necessary for musicians to make informed decisions so that their work is protected.The urge to steal the fruits of somebody else’s intellectual labour and make easy money has been quite common and universal. Counterfeiting and piracy have been both rampant in the world of business and difficult to track and stop. The social consequences of counterfeiting and piracy are felt most personally by artists, creators, and entrepreneurs.

Music industry  is among the major sectors in the emerging big markets globally which give huge profits to the entertainment industry. The paradigm shift surrounding the intellectual property issues plays a significant role surrounding various controversies related to copyright, trademark issues such as unauthorized use of lyrics of the song falling within the ambit of infringement.[33] Everyone in the society is either a consumer or creator of music. The intellectual property rights add value for consumers and provide a guarantee of source and quality. Intellectual property protection encourages innovation and creation which in turn leads to  progress in society.

DEVELOPMENT OF INTERNET AND ITS EFFECT ON MUSIC INDUSTRY

Nowadays, digitalization and the internet have fundamentally transformed the way listeners access and listen to music. Therefore a proper legal framework is needed for protection of artists. Intellectual property is a very dynamic area of  law which is evolving with the development of technology. The certain distinctive qualities of the digital medium have given rise to challenging legal issues. [34]Thus, intellectual properties have come to be recognized as an important tool for economic dominance.[35]

There is greater exposure to the artists on international platforms, it has given new opportunities. In Spite of the challenges thrown up by the digital revolution the rapidly increasing global levels of the Internet has given worldwide access to music. The digital services such as Spotify, Amazon Music, iTunes have gained popularity and the subscription based streaming helps artists. According to IFPI’s Digital Music Report 2019, total revenues for the global recorded music market grew by 8.2% to US$20.2billion.[36]

Unfortunately, this growth has resulted in the rise of music piracy through the internet. For the present music industry, piracy is an extremely important issue because if consumers can download music for free then no one will buy music and no one in the industry will be able to cover production and distribution costs.

FUTURE SCOPE OF IPR

Intellectual property will develop as a strategic and competitive asset. Artists and producers will benefit with the development of high value-added and creative-content industries.[37] Intellectual Property is a Power Tool for economic development and wealth creation that is not yet being used to optimal effect in all countries, particularly in the developing world.[38] It is a practical guide to using those intangible assets such as knowledge, information, creativity and inventiveness – that are rapidly replacing traditional and tangible assets such as land, labor and capital – as the driving forces of economic health and social well-being.[39] IPR has shaped the business models in a variety of fields and has several benefits. The world would not be the same as now.

CASE LAW

The famous song “Happy Birthday to you” that many had assumed it was free to use. In case of Good Morning to You Productions Corp., et al. v. Warner/Chappell Music, Inc., et al.[40]But as the plaintiff began researching for making a documentary on the song found out that Warner Music, over the years, had collected millions of dollars. Judge King decided that there was no credible or sufficient evidence in the record to find that the Hill sisters had ever transferred any common law copyright in those lyrics to Summy Co.[41] Therefore, as a matter of law, that registration could not have vested any copyright in the lyrics in Summy Co., meaning that Warner/ Chappell have no enforceable copyright in Happy Birthday.

CONCLUSION

Intellectual property rights have emerged as an indispensable strategic tool in today’s world. In the present age, it is important to safeguard creators and producers of intellectual content. It is an area which has evolved with the development of technology. The increase in technology has come with new opportunities and new challenges. Even though there are rules and guidelines enacted by the government to protect the music industry unless it is implemented properly the rights of the creators will be infringed. The artists would be able to feel protected, only in an environment where their work is respected, protected, recognized which further gives them encouragement to create more such amazing music.


[1] WIPO,https://www.wipo.int/ip-outreach/en/ipday/2015/creating_value_from_music.html

[2] Catherine Jewell, Communications Division, Creating Value from Music – the Rights that Make it Possible, WIPO, https://www.wipo.int/ip-outreach/en/ipday/2015/creating_value_from_music.html

[3] WIPO, What is Intellectual Property?,WIPO, http://www.wipo.int/about-ip/en/.

[4] Singh, C. I. & Devi, T. M. Intellectual Property Rights: Some Aspects ,250- 255, (2004), http://ir.inflibnet.ac.in/bitstream/1944/444/1/04Planner_32.pdf.

[5]2 KAMIL IDRISd,A POWER TOOL FOR INTELLECTUAL ECONOMIC GROWTH, ISBN 92-805-1231,6 June 2003, https://www.slideshare.net/buicanrobert/ip-a-tool-for-economic-growth

[6] OXFORD ENGLISH DICTIONARY, ‘Definition of Copyright’, (Oxford University Press, LEXICO), https://www.lexico.com/definition/copyright.

[7] WIPO,What is intellectual property?, WIPO, (2004), http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf.

[8] Copyright,Meity,https://www.meity.gov.in/content/copyright

[9]Rashi Nagore,June 7, 2020,https://www.taxdose.com/meaning-of-copyright-and-the-rights-conferred/

[10] Kartar Singh Giani v. Ladha Singh & Others, A.I.R 1934 S.C.777 .

[11] Berne Convention for the Protection of Literary and Artistic Works, Sept. 28, 1979, 25 U.S.T. 1341; 1161 U.N.T.S. http://www.wipo.int/treaties/en/ip/berne/trtdocs-woOO.html.

[12] Id.art. 1.

[13] Agreement on Trade-Related Aspects of Intellectual Property Rights, WTO, (Apr. 15, 1994), U.N.T.S. 3; 33 I.L.M.1197,,http://www.wto.org/english/docs-e/legal-e/27-trips.pdf

[14] Universal Copyright Convention, art. I., 24 July 1971 ,25 U.S.T. 1341; TIAS 7868; 943 U.N.T.S. 178, http://portal.unesco.org/en/ev.phpURL ID=15241&URL DO=DO TOPIC&URL SECTION=201.html.

[15] M. V. HOOREBEECK, LAW LIBRARIES AND TECHNOLOGY, (Chandos Publishing Oxford Ltd. 2005).

[16] 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT (2010).

[17] 7 JOANNA DEMERS, STEAL THIS MUSIC:HOW INTELLECTUAL PROPERTY LAW AFFECTS MUSICAL CREATIVITY 131 (University of  Georgia Press, 2006).

[18] Ben Challis, The Song Remains the Same: A Review of the Legalities of Music Sampling, 16 WIPO MAG,(2009), http://www.wipo.int/wipo magazine/en/2009/06/article_0006.htm1.

[19] Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 272 (2009).

[20] Id at 275-77.

[21] Campbell v. Acuff-Rose Music Inc, 510 U.S. 569 (1994).

[22]Kumar, Davey Hemi Paresh, Criminal Implications of Intellectual Property Infringement under Indian Legislations, AltacitGlobal, https://www.altacit.com/publication/criminal-implications-of-intellectual-property-infringement-under-indian-legislations/

[23] The Copyright Act, 1957,Sec 51.

[24] Nikhil Raghavan, Let The Music Play On, HINDU (India), January 9, 2010, at 9.https://repository.jmls.edu/cgi/viewcontent.cgi?article=1272&context=ripl

[25] Rajneesh Kumar, Intellectual Property Rights : Challenges and Solutions,2017 IJSRST ,Volume 3  Issue 1 | Print ISSN: 2395-6011 http://ijsrst.com/paper/2290.pdf

[26] FIND LAW, https://smallbusiness.findlaw.com/intellectual-property/what-is-a-trademark.html

[27] DAVID BASKERVILLE, THE MUSIC HANDBOOK AND CAREER GUIDE 223 (11th ed. SAGE PUBLICATION Ltd. 2017).

[28] Agreement on Trade-Related Aspects of Intellectual Property Rights,art.16, cl.1, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

[29] Id. art.7.

[30]WIPO, https://www.wipo.int/patents/en

[31] WIPO,What is a patent?,WIPO, https://www.wipo.int/patents/en/.

[32]Patent eligibility requirements,Findlaw, https://smallbusiness.findlaw.com/intellectual-property/patent-eligibility-requirements-faq.html

[33]Trademark law in music and film industry,Legal services India, http://www.legalservicesindia.com/article/2067/Trademark-Law-in-Music-and-Film-Industry.html

[34] A S A Krishnan & A K Chakravarti,Intellectual Property Rights in the ensuing Global Digital Economy,http://nopr.niscair.res.in/bitstream/123456789/19547/1/JIPR%203%281%29%209-20.pdf

[35] SATISH KUMAR & ANIL KUMARMISHRA, IPR IN INDIA: STATUS,STRATEGIES AND CHALLENGES FOR DIGITAL CONTENT, (NLUD Press 2015).

[36] IFPI, Annual Global Music Report, IFPI, (2019), https://www.ifpi.org/ifpi-issues-annual-global-music-report/.

[37]Sati-Salmah,The Importance of Intellectual Property for SMEs; Challenges and Moving Forward .https://www.sciencedirect.com/science/article/pii/S221

[38]Kamil Idris, Intellectual Property – A Power Tool for Economic Growth, WIPO, (13 Oct 1977),  https://www.profkamilidris.co.uk/content/Intellectual_Property_A_Power_Tool_For_Economic_Growth_English.pdf

[39] Kamil Idris, Intellectual Property – A Power Tool for Economic Growth, WIPO, (13 Oct 1977), https://www.wipo.int/publications/en/details.jsp?id=84&plang=AR.

[40] Good Morning to You Productions Corp., et al. v. Warner/Chappell Music, Inc., et al Case No. CV 13-04460-GHK (MRWx) (2016).

[41] C. Dennis Loomis,February 2016,WIPO,https://www.wipo.int/wipo_magazine/en/2016/01/article_0009.html.


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