Indian Copyright Law Regime – Is it in tune with instrumental music?

By Abhyuday Bhotika, Associate

Copyrightable works cover an expanse of items which can be broadly classified under the rubric of inter alia musical work, embracing vocal and instrumental, operas, musicals, bands and orchestras both solos and choruses. India is a signatory to Brene Copyright Convention and Universal Copyright Convention 1952 as revised in 1971 at Paris by virtue of which any copyright registered in a signatory country is deemed to be valid and enforceable in India and vice versa (Saha Kanti Tusar, “Copyright Law in the Changing World”, JIPR Vol. 8, 2003, pp-28).

As per the Indian copyright law regime, “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. A musical work need not be written down to enjoy copyright protection. Further, “Sound recording” means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings. Therefore, the author in the case of a musical work is the composer and author, and in case of a sound recording, he is a producer. It has been noted by Hon’ble Calcutta High Court that, “there are sounds which create soothing effect on a living creature like vocal music or instrumental music” (Burrabazar Fire Works Dealers vs The Commissioner Of Police AIR 1998 Cal 121).

Following provisions from the Copyrights Act, 1957 has been reproduced for your kind perusal:

Copyright’s Act Section 2 (d) “author” means, – (ii) in relation to a musical work, the composer;

Copyright’s Act Section 2 ( p ) “musical work” means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced

Copyright’s Act Section 2 (y) “work” means any of the following works, namely:- (i) a literary, dramatic, musical or artistic work;

Copyright’s Act  section 13 states: Works in which copyright subsists:- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say-

  • original literary, dramatic, musical and artistic works;

Law relating to instrumental remixes:

Instead of old traditional musical instrumentals like tanpura and tabla, instruments used in a remix are digital drums and synthesizers, and even the voice of a singer is often electronically manipulated. It has been suggested in the United States of America and Australia that remixes may encounter legal issues if a whole or substantial part of the original work is copied or used (Brien O’ Damien and Fitzgerald Brian, “Mashups remixes and copyright law” Internet Law Bulletin, 9 (2) (2006) p. 19) but the Indian Copyright law under Section 52 (1) (j) permits adaptations of the original sound recording in the absence of a license and does not permit making of substantial alterations or omissions unless reasonably necessary for the purposes of adaptation, a standard which has been rigidly interpreted by courts (Super Cassette Industries Limited vs Bathla Cassette Industries Private Limited, 2003 (27) PTC 280 (Del)).

Conclusion:

Indian Copyright law does not endeavor to define the term “instrumental music”. However with reference to Section 2 (p) of the 1957 Act, “musical work” means any combination of melody and harmony or either of them, which implicitly includes instrumental music. Further, section 13 of the 1957 Act, fortifies that copyright can subsist in a musical work. It is pertinent to note here a judicial illustration wherein a court has held in the Burrabazar Fire Works Dealers’ case that there are sounds which create soothing effect on a living creature like vocal music or instrumental music. Therefore, instrumental music is a sub-set of musical work and is included in the ambit of Section 2 (p) of the 1957 Act and thereby is in the domain of copyright protection.

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