The jurisprudence with respect to copyright laws in India is developing rapidly with the growing awareness amongst artists involved in making songs, be it for a movie for theatrical release, series for an OTT platform or independent albums. Under the original Copyright Act, 1957 (“Act”), copyright in a ‘musical work’ was only available to composers of the song. With various amendments, copyright protection in respect of ‘musical works’ has expanded to include “work consisting of music and any graphical notation but does not include any words or actions intended to be spoken”.

As per the extant provisions of the Indian Copyright laws, the author of the works such as literary works, dramatic works and musical works is the first owner of the copyright arising out of the said works. With the growing awareness and the jurisprudence, various categories of artists and their respective works are protected under the Indian Copyright laws. 

In the early ’70s, ’80s and most of the ’90s, musicians and artists were heavily dependent on music labels and production houses for opportunities in the Indian entertainment music industry (such as Indian cinemas, movies, etc.). However, in today’s digital world, independent musicians and artists have access to digital platforms to showcase their music and to be visible in a particular structured manner. In effect, artists now are not entirely dependent on big music labels and production houses to kickstart their careers. Over almost 75 years and maybe more, music, songs and dance performances have been an integral part of the Indian entertainment industry. Musicians and artists still need these big music labels and production houses (and now the OTT platforms) to showcase their talent and works. Therefore, music (through the artists, musicians, etc.) and music labels, production houses (and OTT platforms) have learnt to co-exist in today’s day and age.

Instances have happened where the music album in a particular movie or series has become more popular than the movie or series itself. However, in most cases, it is the producer or the production house that is benefitted (mostly financially) due to the success of the music album. While due credits are given to the music composer, lyrists and the singer, there are very few financial benefits extended to them by the producer or the production houses. It would be interesting to analyse the changes in the law which have afforded various rights to artists involved in the making of a song.

Copyright is intended to protect the original expression of an idea in the form of creative work, but not the idea itself. In fact, copyright is a statutory right extended under the law and becomes operative from the date of creation of any original “work” by the creator. It is the statutory right of the creator of the original expression (and not an idea) to decide whether or not he/ she wants to exploit the original works. Copyright protection is necessary as it establishes the right of the creator of the works created by him/ her and once the said works are protected, it gives the creator an array of rights that give him/ her complete access to monetize his/ her work without fear of it being misused, reproduced or altered without his/ her permission or knowledge. In case of infringement of copyright, the creator has legal leverage if his/ her work is protected under copyright laws.

The Indian Copyright Act grants protection to original artistic, musical and literary works. However, the Act does not define the word ‘song’, therefore, the said Act offers protection to the different elements that constitute the song as a whole i.e. lyrics under literary works, music under musical works and combining the tune and lyrics and protecting the sound recording or the song. Copyright protection of songs is essential to encourage authors, composers, and artists to create original works in return for which they are awarded certain rights, monetary benefits, and fame (in the form of credits). Copyright protection creates a protective barrier that has legal backing and infringement of the barrier draws sanctions, it protects the creators of the original work from being wronged or misleads by frauds.

The various bundle of rights involved in the creation of one song can be illustrated through an example.

E.g. Sunidhi Chauhan sings a Hindi song written by Gulzar and its music is composed by Vishal and Shekhar for a movie produced by Karan Johar.

  • Sunidhi Chauhan (singer) is considered a performer under the provisions of Section 38 of the Indian Copyright Act.
  • Works of Gulzar (lyricist) will be treated as original literary works protected under Section 13(1)(a) of the Indian Copyright Act.
  • Vishal and Shekhar (composer) will be considered as the authors of the musical work under Section 13(1)(a) of the Indian Copyright Act.
  • If the entire song has been composed for a film and the services of the composer have been commissioned by the Producer i.e. Karan Johar then he would be the owner of the song as per the provisions of Section 17 of the Indian Copyright Act.

Therefore, the ownership rights available in the case of music are:

  • Literary rights – Lyricist
  • Musical works – Composers
  • Composition and Lyrics together are protected as a song recording that can be owned by either the Music Label or the Producer, contractually.
  • The singer has performing rights and moral rights.

As a practice, the production houses or the producers have all the contractual and legal rights with respect to the literary works, musical works, performers rights and moral rights with respect to the song and all the exploitation rights in connection thereunder under law or otherwise. While the 2012 amendments to the Act extended the rights of the performers and broadcasting organisations, the major thrust of the said amendments has been on bringing the lyricists and music composers of original copyrighted works incorporated in cinematograph film in a legally higher position in the Indian entertainment industry. As per the Indian entertainment industry practice, lyricists and music composers were assigning irrevocably and unconditionally all their legal rights (copyrights) in the works to the production house or producer of the film/ digital series for a one-time lump-sum payment with no recourse to any additional financial benefits for the use of the works were used outside such films or digital series. This entailed that lyricists and music composers had no further right to any royalty accruing from their work even if the work was being utilized in mediums other than the cinematograph film/ series. Most of the time, the argument for such practice was the judgement of the Hon’ble Supreme Court in Indian Performing Rights Society v. Eastern India Motion Picture Association (AIR1977 SC 1443) wherein the Court, on the basis of Section 17(b) and 17(c) of the Indian Copyright Act, concluded that the producer or production house of the cinematograph film was the first owner of the copyright and no copyright subsists in the lyricist or the composer unless there is a contract to the contrary between them and the producer. This decision was extensively used in the industry against the interests of the composers and lyricists and revenue earned through the avenues of commercialization/ exploitation of such works due to rapid advances in technology were kept away from the composers and lyricists. Producers or major production houses just had it all their way. Every creator/ artist should have a right to preserve his creations irrespective of the assignment of such copyright, whether wholly or partially.

The 2021 Amendment Act to the Indian Copyright Act introduced a proviso to Section 17 of the Act, clearly providing that clauses (b) and (c) of the said section would have no impact on the right of the author of the work incorporated in the cinematograph film, thus effectively overruling the earlier 1977 Supreme Court judgement. The said amendments specifically recognised the difference between usage of the literary and musical work for incorporation in the cinematograph film and other independent uses of such work across different mediums and modes. Therefore, the right to receive royalty available to the author of the artistic, musical or literary work under section 14 of the Indian Copyright Act and moral rights cannot be waived even though contractually it may have been agreed otherwise.

With the 2012 amendments and general awareness amongst the artists with respect to their statutory rights, there have been substantial developments in the music/ entertainment industry to safeguard their rights (as creators of such original work). The 2012 amendment largely fulfils the said aspect since it ensures that artists are awarded for their original work in the form of royalties and the moral rights are preserved under the statute. Even though it can be called a progressive step, the path ahead seems unclear because of the ambiguous wording of the proviso to section 18 that specifies payment of royalties but does not specify the entity that has the obligation for such payment. Though it is understandable that the party using the services is liable to pay for it, the assignees are taking advantage of the ill worded document for their benefit.

Mere credits given to the artist for his/ her creation is not sufficient though it acts as great encouragement for him/ her to do better because encouragement is not enough to run studios. Artists must be also entitled to financial gains or share in the profit from the production house/producer. Statutory protection of the original works protects the hard work of the artists and in case of infringement, he/ she has the power to resort to legal remedies and prove that the work was created by him/ her in the first place. A person who derives unjust enrichment from others’ work should not be allowed to benefit from the same, therefore, the right of authors to receive royalties and benefits should be protected and commercially exploiting the work of an author should be duly followed by him/ her receiving credit for the same by the payment of royalties.

The 2012 amendments have a positive step in the music/ entertainment industry for the creators of original works. However, the amendments are yet to be fully implemented in true spirit by different categories of stakeholders. Furthermore, some provisions are already under judicial scrutiny while some are considered too vague to warrant any implementation without clarification from legislation or judiciary. Judicial interpretations and pronouncements in the near future are likely to clear the mist around many provisions brought in the statute through the 2012 Amendment Act.