Van Morrison has said “Music is spiritual, the music industry is not”. And there is a reason behind it.
Intellectual property laws including copyright laws are designed and intended to protect the creation of the author from any unauthorized use. It is legally accepted that copyright protection does not require registration. They are protected the moment they are created and thus acquire the economic and moral rights over such creation. When it comes to the music industry, copyright has to be given a greater emphasis as it is more prone to infringement with development of digital technologies.
Research has shown that people tend to use music in their videos (for instance, make up videos, discoveries, vlogs etc.,) as it helps to grab attention, control the perception and develop emotional connection with targeted audiences. It is evident that the use of others’ music in digital activities and business has dramatically risen since the past few years. Use of others’ copyrighted music in individual YouTube videos is the most prominent example during this time. But, is it legal? Is it allowed? Has anyone ever pondered the consequence of using others’ copyrighted music in their creation? In the books of law, no other person can make unjust enrichment using the music in their video in an unjust manner.
There are numbers of national and international law that restrict the unauthorized use of others’ creation and that can even account to penalty and punishment. In 2069 B.S alone, Nepal Copyright Registrar’s Office, a quasi-judicial body, decided more than 25 cases relating to copyright infringement, mostly associated to use, reproduction, distribution of unauthorized copy of CDs, VCDs and other piracy.
Berne Convention for protection of literary and artistic work, 1886 restricts the use of others’ creation for financial advantage without the permission of the owner. Similarly, Copyright Act, 2002 (hereinafter referred to as “Act”) provides that the author shall have a set of exclusive rights to the copyrighted work, thus vesting the creator with the moral and economic right over it.
Section 27 of the Act provides that if anyone makes an attempt to take benefit by adapting the music directly or indirectly with intention of making economic benefits disabling the real owner to gain benefit from the music, that amounts to infringement and such person is liable to a fine ranging from ten thousand rupees (Rs. 10,000) to one hundred thousand rupees (Rs. 100,000) or imprisonment of maximum 6 months or both.
Does it mean there is no way one can use the copyrighted music in their work?
No, The general rule is that no one can use others’ copyrighted music without the authorization of the owner. However, there are few exceptions to it. The national and international laws allow them in respect of following concerns:
- Availability of Licensing
The safest way one can use others’ music in their work is through the method of licensing. Licensing is the process of transferring certain rights to other people to use that music but that should be consistent with copyright rules and standards. The desirous person should approach the owner to conclude an agreement to license the music for stated purpose. The agreements may include diverse methods and terms and conditions, for example, the percentage of royalty to be given to the owner from the economic gain made out of that work. This gives both the parties confidence on use of the music. Section 25(1)(a) of the Act also allows one to reproduce copies of works and distribute them or rent them as per the terms and conditions of an agreement or license. Section 25 rather finds it an infringement of copyright if such reproduction, distribution or renting of the works is done without proper authorization or licensing, irrespective of any economic benefit gained.
- Fair use
Fair use is a doctrine that provides a defense against accusation of infringement on copyrighted work for which one contends that the use of such work was a fair use and that has not violated any right of the author. Fair use doesn’t mean that anyone is allowed to use the work for reasonable purposes, rather it’s a defense mechanism. The fair use of music depends primarily on four factors:
- The purpose and character of the use of work,
- The nature of the work to be used,
- The amount of work used,
- Economic impact of the use.
If the standard of fair use is met, the person is allowed to use the music in their video.
Section 17 of the Act provides that some portions of published work can be cited for fair use without authorization of the author or the copyright owner in a manner not to be prejudicial to the economic rights of the author or owner. Even while making such citation, its source and author’s name, in cases where it appears, shall also be mentioned. Though Chapter 4 of the Act and Berne Convention validate fair use, it is difficult to analyze these standards in context of use of music as the amount used, the purpose for use, or its effect in the market of any musical work may be difficult to quantify. However, if the use of the work substantially deprives the original author from the economic right, thereby making economic loss to the author, such use cannot come under the purview of fair use.
- Private use and public domain
Private use implies use of such music for personal purpose that doesn’t engage matters of financial gain or economic advantage. Use of others’ music in your video is allowed until it is limited to personal use but when it comes to use of such music in digital media, it is generally assumed that it is being used for financial gain as there is no room for a defense for private use. Section 16 of the Act has also provisioned that authorization from author or owner shall not be required to reproduce some portions of any published work for personal use. However, reproduction of musical work as a notation shall not be allowed in a manner that is prejudicial to the economic right of the author or owner.
There are again certain works of creativity that shall not be protected by copyright because they fall in the public domain; or in other words, they are supposedly owned by the public at large. Following this principle, the Act through its provision in Section 4 has discarded copyright protection over the folksongs, folktales, proverbs, thoughts, religion as such. Similarly, it has provisioned in Section 14 for the shift of creative works from author’s or owner’s private domain to public domain. As a result, it has provided that copyrighted music shall be protected for 50 years after the death of the author or owner of such music. The ownership over musical creativity shall shift to the public domain after 50 years of the death of the owner, and thereby, users may use the music without any authorization. If such music is used by the person in their work, there will be no issue of infringement or any legal actions.
Is it legal to use copyrighted music in TikTok? What about Cover songs?
Many people are also concerned about the use of copyright music in TikTok videos. Well, the music already available in the platform is legal to use as TikTok is granted permission to use that through licensing. It pays royalty to the music owner for using their music on the platform (TikTok). To be on a safe side, when the user tries to upload content with the music that TikTok has not yet taken license of, it notifies stating that the content cannot be displayed because it is still trying to obtain copyright. It means that TikTok still has to confirm if it has permission to use that music. This is one of the preventive mechanisms that TikTok has taken to escape future allegations on copyright infringement. In addition, to protect the interest of the creator, TikTok has come up with a mechanism where the user or the owner can report if anyone has infringed their copyright.
When it comes to issues regarding the legality of cover songs in Nepal, the enactment doesn’t explicitly provide anything as such. However, by the virtue of protection under Section 7 of the Act, the original creator of the song has the right to revise, amend, perform and publicly broadcast the creation, among others.
However, one might argue that the cover songs can actually be protected as an original creation on the grounds of Section 3(2) of the Act. Section 3(2) of the Act reads that any arrangement or sequential arrangement of work, presented as original from the viewpoint of presentation, shall be protected as an original work.
Having said that, cover songs cannot come under the purview of Section 3(2) of the Act, as most of such covers perform the original songs merely on a different tone or form without any alteration to the lyrics and substantial essence of the song, which cannot be considered as an original presentation. Thus, it can be inferred that when one performs a cover of a song on a public platform, be it digital or physical, it infringes the copyright of the original creator. As a result, in order to perform a cover of any song, one shall be required to obtain the licensing from the original creator, so that the economic right of the owner is not affected.
Additionally, Section 11 of the Act provides that the original owner shall get a reasonable remuneration from the user against the use of his/her song for commercial purpose or for broadcasting or communication to the general public publicly. That remuneration should be in accordance with the agreement, and if nothing as such is provided in the agreement or in the event when a licensing agreement is not concluded, the original owner is entitled to half of the remuneration received by the person covering such song. Since cover songs are not just about copyright, but also related rights, the author of cover songs cannot afford to be unaware about the copyright Laws and issues. Again, to avoid future allegations and disputes, the artist of cover song should:
a. Seek for the consent of original author
b. Give credit to the original owner in their cover
c. Avoid covering the song in a way it destroys the reputation of original owner
d. Avoid tempering with original song
The recent copyright issues on such cover is the song covered by Eleena Chauhan.Eleena Chauhan who made a cover song on “TimroMayaleBadheraRakha” had to go through infringement allegations leading to removal of the cover from YouTube. Though the cover singer claimed that she had taken permission from the original owner of the song, the original owner alleged that the cover was produced without giving any credit to the owner and tempered with economic and moral rights. The ambiguity and inadequacy in law gives rise to numbers of such issues.
So, who regulates and traces these issues?
The economic right of the owner, in music industries is in the form of Royalty. They have the right to the royalty gained from the profile engagement including downloads and other use of such music. There is international practice of establishing Collective Management Society according to national legislation that engages in the process of licensing for use of the works, collecting royalties and distributing it among the right owners by organizations acting on behalf of right holders. Since it is not possible for the owner to trace the use, misuse of their use in the country and cross-border, such societies are established. They are responsible for collective management of rights of the owners and strengthen their interests to prevent infringement of their works both at national and transnational level.
In the field of musical works, there are two collective societies established in Nepal; Music Royalty Collection Society Nepal (MRCSN) and Nepal Singing Society (Nepal Gayan Samaj). These institutions are primarily responsible for protecting rights of the owner of the musical works including issues relating to right to royalty and other infringement cases. Their efficiency in working is however questionable as it is evident that considering our technological embracement, tracking of unauthorized use of such music is poor and thus the real owner is deprived of their economic rights.
Advancement of rights of owner: A way forward
Globalization and advancement in technology has exposed the innovation risk and thus added to the vulnerability of musical works being infringed. On the other hand, the efficiency of copyright legislation in Nepal is weak in a sense that it has not been able to address the complexities that arise in protecting copyright in the digital world, which can infer the need to expedite the legal advancement for the promotion of copyright in Nepal. The long-overdue National Intellectual property Policy 2017 provides for the arrangements for automatic protection on creation, which is yet to be codified in the new and improved IP Rights Act. That is promising enough to advance the level of protection in the music industry but again, the complexity of its implementation will remain a matter of discussion.
It is now safe to conclude that licensing is the most convenient and safest way to use others’ copyrighted music. Despite inadequate legal protection, the stakeholders should still take initiatives in both private and institutional level to protect the music industry from unauthorized use and unjust enrichment. Though fair use doctrine allows use of such music, the application of a standard of fair use is complex in use of music by its nature. Along with the development of new technology, international communication and suitable systems should be developed by using those technologies in the creation, presentation, production, broadcasting, distribution and other matters by ensuring benefits to the copyright holders.