A bonanza for commercial users of music, and substantial revenue losses for music companies, as more and more iconic recordings enter the public domain?

As all of us know, ‘copyright’ is the very foundation on which the commercial edifice of creative endeavours like the film and music industries is based. It offers to content owners the exclusive right to commercially exploit their properties – and by extension, to seek legal redress and damages from those who use their rights without permission.

However, the protective umbrella offered by copyright is not forever or eternal. Even though film and music acquisition contracts are often made for ‘perpetuity’, the fact is that the Indian Copyright Act, 1957, provides very specific terms of duration for which copyright exists.

Once the term of copyright expires, content enters the public domain and can be used by anyone without requiring the user to take prior permission or licenses for the same.

What does it mean in practical terms?

One very obvious commercial implication of copyright being time bound is the fact that, after a point, content can be used for free. That translates into a loss of revenue for the content owner, and a cost saving for a commercial user of that content. And one such arena where we could increasingly see the impact of public domain is in the field of music usage.

To come to the subject matter of this particular story, ie sound recordings, the Copyright Act very categorically states:

“Term of copyright in records – In the case of a sound recording, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the sound recording is published.”

Therefore, since we have just entered 2012, any sound recording released up to December 31, 1951, would now be in public domain.

Does that mean that one can pick up any song from that period and use it with impunity for free? Now, that is a question that doesn’t have a simple Yes/No answer.

As those who are in the business of music would know, copyright in music is not a single right but a bundle of rights. Usage of music involves not only the usage of the actual recording but also the underlying composition and the lyrics, or ‘musical & literary works’ as mentioned in the Act. These rights are distinct from sound recording rights and have a different period of validity.

To quote from the Act:

“ Term of copyright in published literary, dramatic, musical and artistic works- Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.”

Therefore taking into account the two different time periods of the two different rights, one would – at face value – draw the following conclusions:

• Permission would still be required to use a song after the expiry of 60 years. However, such permission would be required NOT for the sound recording itself but ONLY FOR the underlying musical & literary works, IF, 60 years have not elapsed from the death of the author of these works.
• Music companies (in their capacity as publishers – deemed authors of the works) typically sell both rights together. Moreover, uniquely to India, sound recording royalties are usually substantially higher than royalties chargeable for musical & literary works rights. Therefore, prima facie, a very strong case to can be made by commercial users of music to ask for a substantial reduction in the royalty charged for sound recordings that have entered public domain.
• To throw a further spanner in the works, a couple of very high profile and contentious recent High Court judgments (subsequently appealed) have essentially decreed that there is no need to further pay for music & literary works when sound recordings are used. Therefore, if a song from, say,  1948, is used then a user could conceivably not pay a single paisa for the usage, citing that the sound recording is in public domain and the works need not be paid for as per High Court orders.

Given that we are on the verge of celebrating 100 years of Indian cinema, and with music being such an important component of our films from the dawn of the talkie era, it would be fair to say that there exists a substantial catalogue of film music that is more than  60 years old and hence in public domain.