COPYRIGHT IN THE MUSIC INDUSTRY- A MIXED BLESSING FOR ARTISTS
We are excited to bring to you a guest post by Mallika Tewari the participant who secured the 4th position in our 1st National Essay Competition, 2020. However, this post is the author's personal views and the Blog/Website does not personally endorse any work.
The dictionary defines copyright as "a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)." Copyright Law gives creators of original material the sole right to further use and duplicate that piece for a given amount of time, at which point the copyrighted item becomes public domain.
Under copyright law, a piece is taken into account as original if the author created it from independent thinking without duplication. This type of work is known as an Original Work of Authorship (OWA). Anyone with an original work of authorship automatically has the copyright to that work, this prevents anyone else from using or replicating it. In order to be copyrighted, the original work has to be in tangible form. This suggests that any speech, discoveries, musical scores, or ideas need to be written down in physical form to be eligible for copyright protection.
When it comes to music, it can be copyrighted in two ways. One of the ways is a copyright in the song, i.e. the musical composition, which consists of the lyrics and underlying music (beat, instrumental). The other way is a copyright in the sound recording or “master recording” itself. So, if you were to write a song, you would own the copyright in that musical work, and if you were to record a version of that song, you would own an additional copyright in that audio recording.
If an artist writes or records a song, he can copyright them by fulfilling these three basic requirements that a work must meet to be protected by copyright:
1) Original: To be original, a piece must merely be independently created. In other words, it cannot be copied from something else.
2) Creative: To satisfy this requirement a work has to only demonstrate a very small amount of creativity. Only a few creations fail to satisfy this requirement.
3) Fixed: To satisfy the fixation requirement, a piece of work must be fixed in a tangible form of expression. Protection is added to an eligible work the moment the work is fixed. A work is considered to be fixed as long as it’s sufficiently permanent or stable to allow it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
When it comes to compositions, the copyright is automatically created as soon as music or lyrics are recorded, put on paper, or otherwise written down in a document. For master recordings, the copyright is created when “a sound recording is fixed, meaning that the sounds must be captured in a medium from which they can be perceived, reproduced, or otherwise communicated”.
After the above three requirements are met and the artist becomes a copyright owner, he is provided with five exclusive rights for their brainchild. The owner, as well as authorized third-parties, have the sole right to:
(1) reproduce their work, (i.e. mechanical reproduction of the music for vinyl, downloads and CDs)
(2) distribute their work (i.e. stream or make the music available to public)
(3) prepare derivative works
(4) publicly perform the work (i.e. in a concert or on the radio)
(5) display the work publicly.
The provision of copyright protection induces artists to create new works. They are rewarded when their works are used and this encourages them to be more creative. Thus, artists receive economic rewards and the public gets to experience novel entertainment. Such protection feeds creativity. In the absence of security of Copyright, the artists might feel unmotivated to create new music since he can just copy other artist’s work. In this way, copyright helps budding artists by giving them financial rewards for their artistry.
However, many a time musical copyrights prove to be a bane for their creators who are exploited by their record labels. This can be understood with the recent example of the feud between Taylor Swift and her previous record company ‘Big Machine Records’. Taylor Swift was not allowed to perform and use her own song. Taylor Swift wrote the melody as well as the lyrics for her music, this made her the author of the composition and she has reserved that right under a publishing deal. But she does not own the rights to usage of songs from her first six albums because the songs were recorded under her old record label i.e. Big Machine Records. The Label Company has the rights over her “Master recording”, which means no one can use those songs in visual media or performance without their permission. Thus, the actual creator i.e. Taylor Swift was not able to perform her own songs.
In this way Record Labels exploit young, budding artists. These artists are lured through cash-rich deals and promises of collaboration and stardom. They give away their rights over ‘Master Recording’ to establish themselves and when they finally succeed, they realise that they don’t even have rights to perform their own brainchild. The fruits of their hardwork are thus enjoyed by such companies. Thus, young artists have to learn to protect themselves in a negotiation. Afterall, they deserve to own the art they make.
Sometimes even the public suffers due to greed of Music Labels and other moguls who are involved in the music industry for money. In the case of Spotify and its feud with Warner Chappel Music Ltd. (WCM). In this case the Warner Music Company refused to give licence to Spotify to stream its songs in India. Spotify decided to invoke the Copyright Act’s statutory licensing scheme under Section 31D. Section 31D of the Copyright Act, introduced in 2012, allows any broadcasting organisation to communicate to the public, any previously published musical work or sound recording, by invoking a ‘compulsory license through a unilateral notice, and paying royalty rates’ determined by the Intellectual Property Appellate Board.
Spotify streamed those songs and in retaliation WCM sued Spotify in the Bombay High Court, before Mr. Justice Kathawalla, seeking an injunction. However, in all this legal battle the real loss was of the customers who paid for the services of the music streaming service. The artists under WCM also had to suffer since their fans could not listen to their music.
There have also been many examples of copyright leaving the artist behind. One of them was cited by Kwaku, founder of the Black Music Congress and one of the directors of British Black Music. E.g. Composer Solomon Linda, a South African Zulu, composed a song called “Mbube” after the Zulu word for “lion.” The song later became famous as “The Lion Sleeps Tonight,” which was eventually licensed to Disney for its film the Lion King, but Linda died poor, having not seen a fraction of the money generated by his work.
Thus, artistic value of musical compositions takes a backseat when it comes to their Copyright ownership. Deserving artists are not credited for their own work. They are exploited for monetary benefits. At the same time such Property rights gives many poor musicians their earnings. Artists also get a sense of security for their work. Thus, even though Copyrights are exploited for monetary rewards, these rewards get one’s creative juices flowing.