What is Copyright Sound Recording in India
In India, as well as globally, the intellectual property rights regime aims at securing the right of ownership over original ideas. This gives the authors, producers and writers a right to reap returns from their works. In the Indian landscape of intellectual property rights, the Indian Copyright Act, 1957 provides for the grant of copyrights. While no copyright that can be granted for merely an idea or imagination, the law protects the expression or the manifestation of the idea. This leads to copyrights existing in literary works like books, dramas, scripts, music, lyrics, computer programs etc. Thus, musical work or sound recording or an original composition can be granted copyright in India. This is not all, for those in the creative arts space – copyright can also be sought for sculptures, artwork, and photographs.
The only other requirement besides originality is the tangibility of the creation. What this means is that the creation should be on such a medium that can be felt, heard or touched through ordinary senses, thereby eliminating any scope for granting copyrights to mere ideas. So, musical works being expressed as a sound or a written notation of musical notes is broadly eligible for copyright. In this post, we specifically focus on how you can get a copyright for a sound recording, the benefits it bestows and documentation work that you should keep ready to expedite the process.
What qualifies for copyright sound recordings & composition?
Based on the Copyrights act and various decisions of the courts, the copyright for sound recordings & composition can be done with ease. The musical work or sound to be granted copyright must be original and must be reduced to a form that is printed, reduced to writing or graphically produced or reproduced. What this means for an artist is that the law wants the melody of arrangement on individual elements consisting of various components like pitch, duration, timbre, volume to be expressed in a tangible form.
In case of a sound recording & composition, as a general rule, the copyright doesn’t exist unless the work is first published in India, or if the work is published outside of India unless the author is a citizen of India. For unpublished work, the author must be a citizen of India at the time of making the work.
Since the copyright of a musical work consists of other elements - such as lyrics, which can be protected by literary work copyright, sounds for which the copyright of musical work is sought, will not be granted if it infringes on the right of any other copyright, such as that of the author of its lyrical work. However, two separate copyrights in the same work can subsist, where each owner of the copyrighted work retains exclusive ownership over their specific work.
Benefits of getting sound recording copyright in India
At the onset, it must be clarified that in case of a musical work - the Copyright Act considers the “composer” of the musical work to be the author, capable of being granted the benefits of copyright protection. If the sound recording and composition are done under contractual terms, by commissioning a lyricist, singer etc, the employer who commissions the agent, is considered to be the first owner of the copyright.
- Since copyright is the legal protection of a bundle of rights, copyright in the case on a sound recording exists for its various components such as lyrics of the song, musical composition, capturing the sound recording on tape etc.
- Each of the several rights existing in a sound recording can then be assigned, reassigned and licensed.
- Copyright Act also allows the owner of the copyright to reproduce the work, store it in any medium such as electronic devices, web access etc.
- The owner of a copyrighted sound recording can perform the work in public, make translations of it, make adaptations of the work etc. However, the performance of the work in “private” may not be given protection.
- The owner of the copyright can bring an infringer of his or her copyright to the court. What the court will then assess is whether the infringed copy has misused or copied the skill and labor of the original producer.
- Expert evidence can also be taken to appreciate the differences between the two works.
- The author of the copyright also retains a right to have his name published in all copies of his work, and also prevent alteration and distortion of his original work.
- A voluntary license can also be granted, whereby the copyright owner of the sound recording in any existing work or the prospective owner of such copyright in any future work, may grant any interest in the right by license in writing.
Checklist to Copyright sound Recording and composition
- The standard for “originality” in musical work or sound recording copyright India. For this, the original work needs to be submitted.
- The year and country of first publication, along with names, address and nationality of the publisher, and details of any subsequent publication.
- Copyright in sound recording allows - exclusive rights in assigning, licensing the work and stopping others from using the work. Thus, names, addresses and nationalities of other persons if any, to whom the author intends to authorize other persons to assign or license the rights comprising the copyrights.
- If the author of the work is other than the applicant, it is necessary to enclose a No Objection Certificate in original from the original author(s) indicating that he/she has no objection if the copyright of the work is registered in the name of the applicant(s)
- If the sound recording is being registered in the name of a firm, details of the person(s) who has/have created the work may be furnished.
- Class and title of the work, as well as the language of the work.
How to get a copyright for sound recording in India
Before starting the procedure, it is important to understand why you need a copyright for your sound recording. The grant of copyright establishes your legal claim over the work, and hence it serves as an important public record document of ownership. It allows the author of the copyright to sue an infringer for unlawful use of the work and also claim statutory and punitive damages for the harm caused due to such reproduction. The copyright grant from the Registrar of Copyrights also serves as a prima facie evidence in any court as proof of copyright registration. Check out the copyright sound recording form too.
The Registrar of Copyrights is the issuing authoring for copyrights in India. The procedure for registration is as follows:
- Application for registration is to be made on Form XIV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules.
- Separate applications should be made for registration of each work; Moreover, every column of the Statement of Particulars and Statement of Further Particulars should be replied to, specifically.
- After receipt of the application, a thirty-day mandatory cooling-off period begins, during which objections to the grant of such copyright can be filed.
- All such objections are scrutinized, a reply may be sought from the applicant and after hearing both parties, the Registrar will issue a certificate.
Documents required to do Copyright for Sound Recording
The following documents will be essential to getting copyright in your sound recording work:
- A filled “statement of particulars” and a “statement of further particulars” is required if the work sought to be given copyright is not original.
- A copy of “Acknowledgement Slip” and one hard copy of “Copyright Registration Form”
- No objection certificate if the copyright application is being filed on behalf of the author by any other person
- One copy of the work irrespective of published or unpublished
- Details of fee payment
- If the author is deceased, details of the date of decease and submission of a notarized affidavit regarding inheritance of right(s) /NOC from all the legal heirs of the deceased author in favor of the applicant.
- Power of Attorney, if being filed by a lawyer
Frequently asked questions
Yes. India is a signatory to the Berne Convention, which is a global agreement on reciprocal protection of copyrights in contracting countries. Thus, there is an automatic grant of protection if the work has been given protection under the domestic laws of one country, in the other country. There are 177 signatories to the convention, hence, chances are that your work’s copyright grant will be protected in a foreign country.
The Copyright Act defines a cinematographic work to mean not just visual recording, but also sound recordings accompanying the film. Thus, soundtracks which are incorporated in a film are protected as part of the cinematographic film, and not as a sound recording.
Despite the cinematographic film’s copyright, if the underlying works such as musical and sound recordings have independent copyright, it is not affected and the owner of copyright continues to exercise exclusive ownership over it. However, this can be varied through a contract between film producers and sound makers.
While there is no blanket prohibition on the adaptation of existing musical or sound recordings, the musical arranger will have to prove that in developing the music of a popular song by changing certain aspects, his work or arrangement is capable of being called an “original musical work”.
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