How is Copyright Protection Applicable to the Indian Music Industry?

 However, are you aware that before playing the famous songs publicly, you need to have all the permissions in place from the makers of such songs? If you fail to do so, you shall end up finding yourself in big trouble like Copyright Infringement. Here in this article, we shall be thoroughly discussing Copyright Protection in the Indian music industry. We shall answer a few questions, including:

• How can you save yourself from receiving a copyright claim?
• Are there provisions in the Indian Copyright Act allowing remixing an old song to a new song?

The term ‘copyright’ combines two words, copy and right; therefore, we can also say that copyright refers to the legitimate and exclusive rights of the individual or entity owning the creative Intellectual Property (IP) assets.

Ian Richard Hargreaves CBE, Emeritus Professor at Cardiff University, Wales, the United Kingdom, has stated that the copyright system can’t be considered appropriate for the present digital age as millions of individuals infringe upon the creative works of others on an everyday basis by simply switching video or audio files from one device to another.

Copyright protection in the music industry gives the producers exclusive legal ownership of creative musical works and recordings. It also includes the exclusive right to distribute, reproduce, and license the copyrighted work to obtain royalties. Kindly note that when lyrics and music are recorded, written on paper, or otherwise placed in a document, the copyright in the creative work is automatically created. The United States Copyright Office has mentioned that once a sound is captured, implying that it must be recorded on a medium that could be sensed, copied, or otherwise transmitted, the master recording is copyright protected in digital tracks, tapes, optical disks, or any other format. However, it is highly advisable to go ahead with copyright registration of your song or musical work. To do the same, you need to ensure that it is tangible, fill out the required copyright application form at the copyright office, and pay the prescribed fee.

Musical Works under the Indian Copyright Act of 1957

Under Section 2(P) of the Indian Copyright Act of 1957 (referred to as Act further in this article), a musical work is defined and is said to include works composed of music containing graphic symbols. An original song is formalized, decorated, modified, and transferred to the original work’s category. You can use sounds to create new musical works by mixing, adding, and deleting some specific aspects of the original song. In India, Bollywood movie songs are loved by everyone. We have listened to the legendary 90s Dheere Dheere Se Meri Zindagi Mein Aana, featuring Rahul Roy and Anu Agarwal, and its remake by Yo Yo Honey Singh. The question that now arises is whether it is legitimate to exploit an artist’s original creative work in this way? In this scenario, the new music or remix is created using audio mixing and adding and subtracting some aspects of the original song.

As per Section 52(1)(j) of the Act, certain uses and modifications of creative works, including sound recordings and music, require obtaining the owner’s consent. It talks about obtaining a legal license to use a copyrighted work in a specific way, provided that the individual or entity (i.e., the licensee) pays the required fee and complies well with the law.

In the case of Gramophone Co v. Super Cassettes, the court held that obtaining the permission of the original owner to use a piece of his creative musical work is necessary. However, in Gramophone Co v. Mars, the court had the opposite opinion. It held that as long as the requirements of Section 52(1)(j) are followed, there might be no instance of copyright infringement and no necessity to obtain the owner’s consent (consent requirement is only for the first recording).

The whole world of music copyright law is undoubtedly complicated; however, it is not that tough to safeguard a piece of musical work and obtain royalties for it. You only need to register your copyright, join the necessary debt collection agency, and pick a distributor. Don’t forget that registering your copyright shall protect your creative work and prevent theft, misuse, and infringement.

What is an Assignment and Licensing of Copyright?

 

What is an Assignment of Copyright?

An assignment is, in spirit, a transfer of ownership, even if it is partial. The copyright owner in an existing work or the future owner of the copyright in a further work may assign to any person the copyright either wholly or partially, either generally or subject to limitation, either for the whole of copyright or any part thereof. In case the assignment of copyright is for any future work, the assignment will take effect only when the work is in an expressed form and not just an idea.

No one has the right to copy, reproduce, sell, or publish an original work without the permission of the creator. It means that only the owner of the copyright can transfer the ownership of the copyright to a third party. Another important thing to note is that with the assignment of a copyright, the assignee shall also enjoy all the rights related to the copyright of the assigned work.

Copyright is a bundle of rights and can be exploited in several ways independently from each other. Each work has various rights, such as theatrical rights, distribution rights, rental rights, broadcasting rights, rights related to adoption and translation, rights to prepare derivative works, and so on, each of which can be exploited separately. These rights can be disjointedly assigned for a limited term or perpetually.

An assignment has two objectives:

1. Where an assignee is concerned, it confers on him the right of exploitation of work for a specified period in the specified territory; and;
2. For the assignor, it confers on him the right to receive a royalty on the work assigned.

Mode of Assignment of Copyright

The owner of the copyright in the existing or future work may assign it to any person. It can be assigned either wholly or partially and with or without limitation on the whole or any part of the copyright. Assignment of copyright in any work shall not be valid unless it is in writing and signed by the assignor or by his authorized agent. Oral assignment of copyright is usually neither permissible nor valid. It shall identify the work and specify the rights assigned, the duration, the territorial extent of such assignment, and the amount of royalty payable to the author.

Difference between Assignment and Licensing of Copyright

Copyright license and assignment of copyright are two dissimilar terms that cannot be used interchangeably. Each of them is different in its own way. A license provides approval of an act, and without it, the authorization would amount to infringement. Licensing usually involves authorizing some of the rights out of many. It can either be exclusive or non-exclusive. In the case of assignment, it includes the disposal of the copyright, which in simple terms means the assignor assigns the copyright to another person or the transfer of ownership of the copyright to some other person, whereas in the case of a license, only some Intellectual Property (IP) is transferred and the ownership is not transferred to the licensee. A license does not confer any right to the licensee against a third party or licensor, but an exclusive licensee has substantial rights against the licensor and even a right to sue the licensor.

A licensee also has the right to make amendments provided that his license does not restrict that right. In case there is a failure in paying the royalties, the licensor can revoke the license. When it comes to the assignment, the same is not possible. However, if there is anything harsh that can affect the author, it may lead to revocation in the event of a complaint made to the copyright board.

A copyright license, unlike a copyright assignment, needs to be in writing. It can be oral or implied after considering all the facts and circumstances relating to the transaction between the owner of the copyright and the licensee. Thus, if an individual who is the owner of a copyrighted work thinks about assigning the copyright, he can consider licensing his copyright instead of assigning it. It would help in retaining ownership, thereby licensing only certain rights to another party.

Essential Features of a Copyright Assignment Agreement

• The assignment must specify the amount of copyright. The creator shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright, subject to certain conditions.
• The ownership may be assigned either wholly or partially.
• The assignment should also specify the duration.
• The territorial extent of such assignment should be specified.
• The assignment shall be subject to revision, extension, or termination on terms mutually agreed upon by the parties.
• The creator is entitled to subsequent royalties in the course of future exploitation of a work.
• The assignee has the rights of translation, abridgment, adaptation, and dramatic and filmmaking in the work after obtaining the rights via assignment deed.

The main objective of the assignment process is to give financial and distribution benefits to the original work. Copyright assignment can prove to be a necessity in this world as it may lead to enhancing the potential of the original work by reaching several individuals as they may add their creativity to the original work. However, the practicality of copyright assignment has been controversial on several occasions due to the increasing number of Copyright Infringement cases.

India - Trademark Protection for the Hospitality Industry

The hospitality industry of India has undoubtedly become an exceedingly crucial service provider across the nation. Due to the increase in tourism, the role of restaurants and hotels has also increased. By establishing a brand name, a service provider in the hospitality industry can benefit from having many customers and build a good reputation. However, there is a risk involved in this scenario – with the brand names of hotels and restaurants becoming popular, other service providers in the industry might misuse this popularity to gain an unfair advantage. Therefore, to protect your business in the hospitality industry, you must seek protection via Intellectual Property Rights (IPRs), specifically by registering your hotel or restaurant brand name and logo as trademarks. Here in this article, we shall shed light on the relationship between Trademark Law and the hospitality sector in India.

Relationship between Trademark Law & the Hospitality Industry

A trademark refers to any mark capable of being represented graphically, identifying the products or services of one and distinguishing them from those of others in the market. Hotels and restaurants must get their brand names and logos registered as trademarks for the ease of operating a business in India. Brands and businesses need to identify the Class under which their products or services fall. The same is done through the Nice Classification of Goods and Services, which, in 2010, added Class 43 for restaurants and hotels. Kindly note that a few services can’t be registered for in Class 43, including arranging travel by tourist agencies, rental services for real estate, preservation services for food and drinks, discotheque services, rest and convalescent homes, and boarding services.

If hotels and restaurants wish to have a more extensive and holistic Trademark Protection in place, they can register their proposed trademarks under other trademark Classes. Doing the same shall help them secure the varied services provided by them. Such trademark Classes include:

• Class 3 – Dealing with cosmetics, essential oils, perfumes, etc.
• Class 16 – Dealing with stationery material, such as office requisites, letterheads, printed matter, etc.
• Class 25 – Dealing with headgear, footwear, and clothing.
• Class 35 – Dealing with office functions, advertising, business administration, and business management.

Trademark for the Taj Mahal Palace Hotel

The Indian Hotels Company Limited filed a Trademark Application for the Taj Mahal Palace Hotel in Mumbai and obtained its registration. It was the first ever hotel to get a trademark registered for its building. The trademark is registered in Class 43 for the image and the Tower Wing Exterior of the Taj Mahal Palace Hotel. Internationally as well, similar trademarks have been filed and registered, such as the Sydney Opera House in Australia, Eiffel Tower in Paris, and Empire State Building in New York.

With the Trademark Registration of the Taj Mahal Palace Hotel’s building, the Indian Hotels Company can undoubtedly ensure protection from:

• Entities that may use the image of the Taj Mahal Palace Hotel for commercial purposes without having adequate authorization
• Entities that may sell products with the image of the Taj Mahal Palace Hotel, which leads to Trademark Infringement

Obtaining trademark protection for the Taj Mahal Palace Hotel is essentially stronger than copyright or industrial design protection since they deal with the commercial and aesthetic value of the property, respectively. Registering the architecture of a hotel as a trademark leads to a landmark, which acts as a source indicator and generates more revenue. Furthermore, in Rock and Roll Hall of Fame and Museum v. Gentile Production, it has been ruled out that for a building to obtain trademark registration, it must create a distinct commercial impression performing the trademark function of identifying the source to the customers.

Understanding the Concept of Destination Branding through Trademark Protection

The hospitality industry has grown immensely with destination branding, thereby finding its significance in tourism. Destination branding refers to the concept of promoting one specific location or place using a tagline or logo. The same is then safeguarded under trademark law.

It acts as an incentive for the consumers or for them to visit the place and enjoy the experience assured by the promoter. The concept as a whole came to the picture in different states and cities of India and worldwide to promote tourism.

For instance, the ‘Incredible India’ campaign was introduced in 2002 in India to promote and advertise the nation’s rich heritage and culture.  The corresponding logo and wordmark got registered as a trademark (to avoid any misuse or misappropriation) in 2007 under Class 39, which deals with packaging, storage of goods, transport, and travel arrangements.

Kindly note that destination branding fails if there is political instability in a region or incompetent implementation of measures for enhancing tourism.

Trademark Protection for Big Hotel Chains and Restaurants 

In India, big hotel chains and restaurants, like Shangri-La, JW Marriott, Radisson, Hyatt, Oberoi, etc., have realized the importance of safeguarding their products and services through Trademark Rights and registered them under various Classes. It may include boarding facilities, accommodation services, clothing items, shampoos, soaps, cosmetics, stationery items, advertising, etc.

Let us take the example of Radisson Hotels International Inc. It has registered several trademarks, including RADISSON BLU, RADISSON RED, RADISSON INDIVIDUALS, and RADISSON MEETINGS, under Class 43. For accommodation services, reservation services, and award programs for customers, the hotel has registered two trademarks, namely RADISSON and RADISSON GOLD AWARDS, under Class 16. Clothing items, such as jackets, shirts, hats, bathrobes, etc., produced under the name of Radisson, have also been trademarked under Class 25. The hotel’s cosmetics, soaps, and shampoos have been registered in Class 3.

Therefore, hotels and restaurants in India should aim for all-inclusive trademark protection. They must look forward to protecting their distinctiveness, brand name, and reputation from the usage of any fraudulent marks.