Legal

Written by Shruti Kulshreshtha. Edited by Saumya Tripathi.

This blog deals with the legal aspect of playing copyrighted sound recordings at public places. It sets out the important definitions, the registration of copyright, infringement, offences and remedies available under the Copyright Act, 1957.

 

INTRODUCTION

The Copyright Act, 1957 (hereinafter referred to as “the Act”) governs the subject of copyright law in India. Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings. To understand the nature and scope of copyrights in musical work, it is pertinent to note the following definitions:

“Copyright”- Section 14 of the Copyright Act sets out the meaning of “copyright” to mean the exclusive right subject to the provisions of the Copyright Act, to do or authorize the doing of any of the acts specified therein in respect of a work or any substantial part thereof. For a “musical work” (defined below) the definition of copyright, inter alia, includes the exclusive right to perform the work in public, or communicate it to the public and for “sound recordings” (defined below) it inter alia includes the right to communicate the sound recording to the public.

Copyright in any musical work or sound recording originally lies with the owner/ author of the work. According to Section 2(d), author of a sound recording is the producer.

“Musical Work”- As per Section 2 (p) of the Act, “musical work” means “a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music.”

“Sound Recording”- As per Section 2(xx) of the Act “sound recording” means “a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.”

“Visual Recording” – According to Section 2(xxa) of the Act, “visual recording” means “the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method.”

“Communication to the public”- According to Section 2(ff) of the Act, “communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.

In the case of Garware Plastics v Telelink [AIR 1989 Bom 331] it was held that if the music is performed or played at any event in any banquet hall, lobby, restaurant or a discotheque or such similar venue without the consent of the owner and if the audience is deemed to be public in relation to the owner of the work, whether for a fee/charge or otherwise, then it may constitute as work being performed in public.

Term of copyright in sound recording — In the case of a sound recording copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the sound recording is published.

In order to play sound recording having copyright, a license should be obtained from the registered copyright societies. Payment of a fee is required to be made, which depends upon the rates of the respective copyright societies. This is also known as royalty, which is a sum paid to a copyright holder for the use of their work.

GRANTING LICENSE BY THE OWNER

The owner of the copyright or his authorized agent may grant any license to any person under Section 30 of the Act.

Licences by owners of copyright — The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing by him or by his duly authorized agent. Provided that in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.

Where a person to whom a licence relating to copyright in any future work is granted under this section dies before the work comes into existence, his legal representatives shall, in the absence of any provision to the contrary in the licence, be entitled to the benefit of the licence.

Compulsory license in works withheld from the public: If the owner of the copyright has refused to allow communication to the public by broadcast of such work or a sound recording, then the Appellate Board, after giving to the owner of the copyright a reasonable opportunity of being heard and after holding inquiry, direct the Registrar of Copyrights to grant to the complainant a licence to communicate the work to the public by broadcast.

REGISTRATION OF COPYRIGHT

The author or publisher of, or the owner of or other person interested in the copyright in any work may make an application in the prescribed form accompanied by the prescribed fee to the Registrar of Copyrights for entering particulars of the work in the Register of Copyrights. The Register of Copyrights shall be kept at the Copyright Office in which the names or titles of works and the names and addresses of authors, publishers and owners of copyright and such other particulars as may be prescribed, may be entered.

INFRINGEMENT OF COPYRIGHT (Section 51)

Copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under the Act:

1. sells or gives on hire or offer for sale any infringing copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
2. communicates the sound recording to the public;
3. permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the sound recording unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of the copyright;
4. makes infringing copies for sale or hire, or to sell or let for hire, or by way of trade display or to offer for sale or hire;
5. distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright;
6. exhibits in public by way of trade;
7. Imports into India any infringing copy.

It is not an infringement of the copyright in sound recording to reproduce the recorded material in musical notation or other written form, or to produce another record with, for example different musicians playing the same music. Playing any sound recording in private is not infringement of the copyright in the sound recording. It is only when the recording is caused to be heard in public that it becomes an infringement. However, according to Public Notice No. 10-26/2019-CO issued by Copyright Office, Department for Promotion of Industry and Internal Trade, Government of India, no license is required for playing any sound recording in the course of religious ceremony which includes a marriage procession and other social festivities associated with a marriage as it does not amount to infringement of copyright.

OFFENCES

• Offence of infringement of copyright or any other right under the Act. (Section 63) – Any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred under the Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.

An enhanced penalty on second and subsequent convictions shall be given to the offenders with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

• Penalty for making false statements for the purpose of deceiving or influencing any authority or officer. (Section 68) — Any person who:

1. with a view to deceiving any authority or officer in the execution of the provisions of the Act, or
2. with a view to procuring or influencing the doing or omission of anything in relation to the Act

makes a false statement or representation knowing the same to be false, shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

• Offences by Companies. (Section 69) – Where any offence under the Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. Provided that such penalty shall not be applicable to a person who proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly if it is proved that the offence was committed with the consent or connivance of, or is attributable to any negligence on his part.

REMEDIES

There are two types of remedies a person can get for copyright infringement under the Act – civil remedies and criminal remedies.

• Civil Remedies

1. Interlocutory Injunctions: An application can be filed for interlocutory relief. There are three requirements for there to be a grant of interlocutory injunction:-

• Prima Facie case
• Balance of convenience
• Irreparable injury

2. Pecuniary Remedies: Copyright owners can also seek three pecuniary remedies under Section 55 and 58 of the Copyright Act of 1957. First, an account of profits which lets the owner seek the sum of money made equal to the profit made through unlawful conduct. Second, compensatory damages which let the copyright owner seek the damages he suffered due to the infringement. Third, conversion damages which are assessed according to the value of the article.
3. Mareva Injunction: The Mareva injunction comes into play when the court believes that the defendant is trying to delay or obstruct the execution of any decree being passed against him. The court has the power to direct him to place whole or any part of his property under the court’s disposal as may be sufficient to satisfy the decree. This is provided in Order XXXVIII, Rule 5 of The Civil Procedure Code, 1908.

• Criminal Remedies

Under the Copyright Act, 1957 the following remedies are provided for infringement:

• Imprisonment up to 3 years but, not less than 6 months
• Fine which may not be less than 50,000 but, may extend up to 2,00,000
• Search and seizure of infringing goods
• Delivery of infringing goods to the copyright owner

Remedy in the case of groundless threat of legal proceedings: Section 60 states that if any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceedings or liability in respect of an alleged infringement of the copyright, any person aggrieved thereby may institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and may in any such suit—

• Obtain an injunction against the continuance of such threats, and
• Recover such damages, if any, as he has sustained by reason of such threats.

No suit or other legal proceeding shall lie against any person in respect of anything which is in good faith done or intended to be done in pursuance of the Act.