The Indian music industry has always entertained audiences be it in movies, concerts, singles etc… Over the years with the intent of selling music and making it a unique piece of art it was important to copyright the said piece. The Copyright Act, 1957 lays down the laws and helps in making the ‘music one of a kind’. But songs are sometimes very similar in nature and this causes a debate whether the musical piece is ‘inspired or copied.’ The Indian Music Industry has witnessed numerous copyright cases but the recent one between the songs ‘Varaha Roopam’ and ‘Navarasam’ has catapulted the plagiarism debate once again.

INTRODUCTION

“Intellectual Property is the oil of the 21^st century” said the business tycoon Mark Getty. This saying is very important as it sheds light on the importance of Intellectual Property (IP). Intellectual Property can be defined as that which ‘refers to creations of the mind, such as inventions, literary and artistic works, designs, and symbols, names and images used in commerce.’[1] The protection availed through the IP laws enables the individual or the company in protecting and commercializing their work. These rights are intangible rights over tangible property that accords certain rights to the creator that enable them to sue incase the work is used without their consent. There exists various types of IP laws such as Trademarks, Copyrights, Patents, Geographical Indications…these varied types of laws helps in protecting various kinds of innovations in India.

As mentioned above Intellectual Property laws protect literary and artistic works and an example of such work are ‘Songs’. Songs or music is an artistic work that is created by an individual or a group of individuals that are protected by IP laws which accords the creators the right to use its for commercial purposes. Indian movies and its music are famous across borders. This industry being ever-changing and ambitious there is a need to churn out music every day. Certain musical pieces though are unforgettable in nature are sometimes share their similarity with another piece of music. The creator of the music may claim it to be inspired but the other creator may claim it to be plagiarized. To ensure that the unique product of the creator is protected The Indian Copyright act, 1957 was enforced which lays down the provisions for making the melody ‘one of its kind’.

THE COPYRIGHT ACT, 1957

DEFINITIONS

Copyright for original music, literary piece, sound recordings can be obtained through the  Copyright Act, 1957. Copyright is the right the owner of the intellectual property. This legal right protects the work of the authors, original work which ac be dramatic, music, artistic work, cinematograph, etc.…

The term copyright has been defined under Section 14 of the Act,

1. “In the case of literary, dramatic, or musical work, the exclusive right to,
2. Reproduce the work in any material form including the storing of it in any medium by electronic means;
3. Issue copies of the work to the public not being copies already in circulation;
4. To perform the work in public, or communicate it to the public;
5. Make any cinematograph film or sound recording in respect of the work;
6. Make any translation of the work;
7. Make any adaptation of the work.

e.  In the case of sound recording,

1. To make any other sound recording embodying it;
2. To sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;
3. To communicate the sound recording to the public.”[2]

Therefore, music copyright is the legal right that the person holds over the composition or the sound recording. This right bestows on the person holding the license for the musical piece to reproduce and redistribute the music to earn money. The term of copyright in musical works exists when published within the lifetime of the author for sixty years.

PERSONS INVOLVED IN THE MUSIC MAKING PROCESS

Creating music is not all mellow, it is a tedious process and sometimes involves multitude of people. Each person involved in their various capacities in making of a song owns the copyright of the same. This act has defined the various persons involved in the music making process, such as under Section 2(d)(ii) an author in the musical context is the Composer. A composer is the person who makes the lyrics into a musical piece. He is responsible with making the tune, mixing music and other non-lyrical work thus completing the song. Therefore, the composer is considered as the author of the music. In addition to the composer the lyricist of the song is also considered as the author of the music according to Section 2(d)(i). The performer of the song is deemed to be the ‘Singer’ under the Section 2(qq). The singer has the right to perform the song and copy the same in electronic form for distribution. After the completion of the song the responsibility of promotion, distribution, and the recording of the song rests with the producer. According to section 2(d)(v) an author in regards with sound recording is regarded as the ‘Producer’. It is the involvement of the above-mentioned persons that creates a song and each of the person involved has the copyright of the song and the right to distribute the same.[3]

TYPES OF COPYRIGHT AND WHO HOLDS THEM?

As there are numerous persons involved in the process there exists two kinds of copyrights that are applicable according to the roles and capacities of the artists involved. Compositional and Master Copyright are the two kinds of copyright in existence.

• Firstly, the Compositional Copyright is held by the lyricist, songwriters, and the composer of the musical work. Composition of music generally includes the lyrics, tunes, order of the song and other works which give a proper structure to the song. Therefore, it is the persons who make-up such a song is given the Compositional Copyright.
• Secondly is the Master Copyright. This kind of Copyright is given to the performers and the record label (company that owns the song). The record company is responsible with the production and distribution of the musical piece hence, they own the Master Copyright of the song.[4]

PROCESS OF COPYRIGHT REGISTRATION OF A SONG

Making music is a tedious creative process and the copyright registration of a song is essential to proclaim the ownership over the work that the artist has created. The registration ensures that only the creators of the song have the right to use, publicize, copy, and distribute to the public. The procedure to register a copyright of a song is a simple process. The registration can be done either in offline or online mode. Form XIV can be filed on the Government copyright website along with the NOC by the other authors of the song including the prescribed fee. The registrar of copyrights upon satisfaction of the application and not receiving any objections for the same, enters the same in the register and the copyright is granted. If the register is not satisfied with the application or receives any objection from the parties to whom the notice is given or any other third party then an opportunity is given to the applicant to present his case before the registrar.[5]

 CASE LAWS

Indian music industry has witnessed many song copyright infringement cases. There has been claims where the newer artists or music labels are accused of copying certain songs which could include the music, lyrics or other aspects of the song without the permission of the copyright owner, but the artists claim the song to be inspired and not copied. Indian judiciary has carefully articulated in the said matter and have given varied judgements.

The most recent case which again catapulted the copyright debate was that of the ‘Varaharoopam’ song from the kannada movie ‘Kantara’ and the ‘Navarasam’ song from the Kerala music band ‘Thaikkudam Bridge.’ In the case between Hombale Films LLP v. The Mathrubhumi Printing and Publishing Co. Ltd. & Ors, the Thaikkudam Bridge approached the district court in Kerala claiming that the ‘Varaha Roopam’ song from the Kantara movie is a plagiarized version of their 2015 ‘Navarasam’ song. The Palakkad and the Kozhikode District Courts had passed an interim order in prohibiting the song from being played on streaming platforms. The ‘Varaha Roopam’ song creators hap approached the Kerala High Court and the plea was not entertained and was directed to seek relief from the lower court. The Kozhikode District Court dismissed the application of the Thaikkudam Bridge and stay granted was vacated.[6]

The landmark copyright infringement case of R.G Anand v. Deluxe Films[7]  the Supreme Court gave certain guidelines that helps in determining the distinction between inspiration and copied. In this case the R.G Anand the writer of the play ‘Hum Hindustani’ claimed that the film titled ‘New Delhi’ released in 1956 is a copy of his play. The main issue in this case was if the film ‘New Delhi’ was infringing the Plaintiff’s copyright of play ‘Hum Hindustani’. Both the Trial Court and the Delhi High Court opined that both the film and the play did not have any similarities. The appellant approached the Supreme Court and the apex court decided that the play and the film share only negligible similarities and therefore is no infringement of the copyright can be articulated. The court also provided certain guidelines that will help in determining the difference between copying and inspiration. They are as follows:

• There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts. Only the form, manner or the arrangement of the idea can be copyrighted by the author.
• It should be determined whether the copyrighted work share similarities with the fundamental aspect of the mode of expression, i.e., the copied material should be substantial and literal.
• A test called ‘Test of ordinary observation’ has been prescribed, which states that if a man of ordinary prudence after viewing both the works concludes that one of the work is unmistakably the copy of the other then the work is said to be copyright infringement.
• The work is not copyrighted if the concept similar in nature is presented in a different manner.
• If there is no intention to copy and there are significant dissimilarities between the works then the work is not a copyright infringement.
• The burden of proof is on the party that claims the copyright infringement.

The above-mentioned guidelines help in determining whether the work is a copy or an inspiration.

In the Saregama India Ltd v. Viacom Motion 18 Pictures[8] case the Saregama India Ltd filed a suit against Viacom 18 Motion pictures on the grounds that the lyrics and music of their ‘Aaradhana’ movie song ‘Mere Sapno Ki Rani’ was said by the actor in the movie ‘Special 26. the Court did not grant the relief sought and observed that there has been no infringement of the song as the words were uttered for less than 7 seconds which constituted as de minimis (trivial legal violations that is insufficient to warrant legal remedy). The burden of proof is on the plaintiff to show that the copied work has some resemblance to the original work. As the utterance of the words had no impact and was trivial in nature the injunction was rejected.

From the above case laws, it is evident that the protection of the Intellectual property varies case to case basis. The guidelines provided in the R.G Anand case helps in clearing the ‘Copied or Inspired’ dilemma.

CONCLUSION

The Intellectual Property Laws are the laws that aids in protecting the creation of an individual or a company which ensures that the creator is given due credit for their work. The process of innovating a product or a any artistic work is laborious in nature and the person so creating it should be recognized for and enabled to monetize the innovation. IP laws enables to accelerate the growth of the business and the economy of the country, protection and promotion of culture are the few of the benefits of IP laws. In the present times where there is rapid innovations and fierce market competition IP laws helps in the protection and creation of a niche innovation in the market and enabling a temporary monopoly to the creator. But, there still exists violations of copyright which is determined by the court whether the violation is ‘Copied or Inspired’.

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[1] What is Intellectual Property?, available at: What is Intellectual Property? (wipo.int) (last visited on November 22,2022)

[2] The Copyright act, 1957 (Act 14 of 1957) s.14

[3] Supra Note 2

[4] India: Copyright Protection In Musical Work, Kanika Raheja, available at : Copyright Protection In Musical Work – Trademark – India (mondaq.com) (last visited on November 22, 2022)

[5] How to Copyright a Song In India, Kaviya A, available at: How To Copyright A Song In India – Vakilsearch | Blog (Last visisted on November 22, 2022)

[6] “Kantara lyricist claims victory against Thaikkudam Bridge in Varha Roopam plagiarism case: ‘Justice prevailed’, The Indian Express, November 25, 2022, available at Kantara lyricist claims victory against Thaikkudam Bridge in Varaha Roopam plagiarism case: ‘Justice prevailed’ | Entertainment News,The Indian Express (last visited: November 25, 2022)

[7] (1978 AIR 1613)

[8] 2013

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Author: Chaitra Srihari

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