[Reader-list] sound recording

[zamrooda]

The Indian Copyright Act,1957


A sound recording cannot be published unless and until  the following 
particulars are displayed on the sound recording and on any container thereof:

1 the name and address of the person who has made the sound recording,
2 the name and address of the owner of the copyright of that work and
3 the year of its publication.

Which are the acts that will not be deemed to be Infringement of Copyright?

1 Making of sound recording of any literary,dramatic or musical work with the 
licence or consent of the owner of the right in the work.
2 Where the person making the sound recording has given a notice of his 
intentions, has provided the copies of all the covers and labels with which 
the sound recording is to be sold. The royalties have been paid in 
conformation to the rates fixed by the Copyright Board.
3 Provided that no alterations are made that have not been made previously or 
with the consent of the owner of the rights.
4 Sound recording cannot be packed or labeled in a fashion as to mislead or 
confuse the public of their identity.
5 Copies of sound recording cannot be made till the expiration of two 
calendar years after the end of the year in which the recording was first 
made.
6 The person making the copy of the recording has to  allow the owner or a 
duly appointed agent to inspect all records and books of accounting relating 
to such sound recording.
7 Playing of recordings in an enclosed area or  hall meant for residents as 
part of the amenities provided. Or as part of a club or similar organisation 
which is not established or conducting it for profit.
8 When performance is given to non paying audience, or for the benefit of a 
religious institution.

Internet effects XI: Napster and beyond




One of the most talked about cases on the subject of ASP liability is the one 
Rodney D. Ryder * Rodney D. Ryder * that pitted the Recording Industry 
Association of America (RIAA) against Napster. Napster delivers an Internet 
service that enables users to create their own private libraries of sound 
recordings. These libraries are then made available to other users for 
instantaneous distribution and copying. In March 2000, the RIAA, which 
represents music labels, filed a complaint against Napster, alleging that 
Napster's wilful conduct constitutes contributory and vicarious copyright 
infringement. 

Napster moved for summary judgement. In May, the judge denied the motion, 
holding that Napster was not an ISP because Napster did not "transmit, route 
or provide connections for allegedly infringing material through its system". 
(It actually provides the computer software application by which the 
allegedly infringing activity can occur.) 

In June, the association asked the judge to grant an injunction to prevent 
Napster, while the case was pending, from "facilitating or assisting others 
in the copying, downloading, uploading, transmission or distribution of 
copyrighted musical works". After a two-hour hearing on July 26, a federal 
judge granted a temporary injunction, barring "digital music upstart" Napster 
from trading music online, pending a trial. 

Napster immediately filed an appeal. On July 28 an appellate court granted an 
emergency stay, ruling that Napster had "raised substantial questions of 
first impression going to both the merits and the form of the injunction". On 
October 2, both parties had the opportunity to address the arguments for and 
against the injunction to the appeals court. 

Napster - the Indian position
 
Under Indian law, the activities of Napster would not, on the face of it, 
amount to direct copyright infringement as they are not:
reproducing the copyrighted works or storing them;
selling or hiring copyright works;
issuing copies of the works to the public;
performing the works in public or communicating them to the public;
making any translations or adaptations of the works.

In the Garware Plastic & Polyester versus Telelink case, which pertained to 
the showing of video films over a cable network, the Indian Supreme Court 
held that such an action amounted to broadcasting or communicating material 
to a section of the public. The court also held that such broadcasting of the 
programme directly affected the earnings of the author and violated his 
intellectual property rights, and stated that assisting in infringement would 
amount to infringement of copyright.

On the basis of this case, it may be possible for some to argue that Napster 
facilitates unauthorised copying and, hence, should be liable for 
contributory and vicarious infringement of copyright. But the Garware case is 
different from the Napster affair since Napster is not 'broadcasting' the 
music to any of its subscribers; it is merely providing software that may be 
used to locate songs for copying over the net. The legal position in India is 
as yet unclear and much would depend on the facts and interpretation of these 
facts by the adjudicating judge.

Indian law has a provision similar to the 'personal, non-commercial' fair use 
exception set out in the US Home Recording Act, 1992. This is explained in 
Section 52 of the Indian Copyright Act 1957, which holds that use of a work 
will not amount to infringement of copyright

 if it is private use;
 for criticising or reviewing the musical work;
 for making back-up copies;
 or reporting the work in a newspaper or for judicial or legislative 
proceedings. 

Therefore, it may be possible for Napster to run the argument of 
non-infringement, since its subscribers are using the music only for private 
use. But Napster would not be able to claim immunity under the 'network 
service provider' provision of the Indian Information Technology Act 2000. 
The provision stipulates that a network service provider can claim immunity 
against 'third party information' only if it proves that the contravention 
(in this case, copyright violation by the Napster subscribers) was committed 
without its knowledge, or that it had exercised due diligence to prevent any 
such offence or contravention. Napster is not only aware of such 
contravention, but is facilitating it by actively supplying the software and 
service that makes such contravention possible.

The outcome of this case could change the application of traditional 
copyright laws. If the court finds that Napster's use of the copyrighted 
material was a fair use, traditional protection of copyright law will be 
worthless. Furthermore, a fair use decision may have an effect on one of the 
major purposes behind copyright law, which is to allow artists to restrict 
reproduction of the works they create. This protection gives artists an 
incentive to create works. A decision allowing copyrighted works to be easily 
downloaded from the Internet may cause artists to refrain from creating 
works. Additionally, the RIAA complains that it will lose revenue from CD 
sales.

By the time the time research for this article was concluded, the infamous 
Napster judgement became well known. The ruling against Napster is a 
tremendous blow to lovers of the "freedom of the Internet", but it is vital 
for the safeguarding of intellectual property worldwide. Even if Napster is 
shut down, many more will emerge to take its place. This is a "menace" that's 
virtually impossible to contain.


 In 1957, cinematographic films got separate copyrights of their own, quite 
apart from their components, such as music and story. Fresh amendments 
followed, though the issue of piracy, a raging issue today, was not 
adequately addressed until 1984. The Amending Act 65 of 1984 acknowledged 
piracy as a "global problem" thanks to the rapid advances in technology. The 
legislature finally woke up to realise the fact that it was not just the 
copyright owners who suffered losses in the form of royalties, but also the 
national exchequer by way of tax evasions. Here's how the Act justified the 
amendment:

 "Recorded music and video cassettes of films and TV programmes are 
reproduced, distributed and sold on a massive scale in many parts of the 
world without any remuneration to the authors, artistes, publishers and 
producers concerned. The emergence of new techniques of recordings, fixation 
and reproduction of audio program, combined with the advent of video 
technology have greatly helped the pirates. It is estimated that the losses 
to the film producers and other owners of copyright amount to several crores 
of rupees. The loss to Government in terms of tax evasion also amounts to 
crores of rupees. In addition, because of the recent video boom in the 
country, there are reports that uncertified video films are being exhibited 
on a large scale. A large number of video parlours have also sprung up all 
over the country and they exhibit such films recorded on video tapes by 
charging admission fees from their clients. In view of these circumstances, 
it is proposed to amend the Copyright Act, 1957, suitably to combat 
effectively the piracy that is prevalent in the country."

To add teeth to the legislation, punishment for copyright infringement was 
enhanced to a maximum of three years and a minimum of six months, and a fine 
up to Rs 2 lakh, and a minimum of Rs 50,000.The provisions now specifically 
also addressed video films and computer programmes. Producers of records and 
video films were now statutorily obliged to display information such as the 
name of the copyright owner and year of first publication etc.

 The law protects cinematographic films as a distinct work, giving the 
producer of the film exclusive rights to make a copy of the film, including a 
photograph of any image forming part thereof; and to sell or give on hire, or 
offer for sale or hire, any copy of the film regardless of whether such copy 
has been sold or given on hire on earlier occasions; to communicate the film 
to the public.

India is a member of the two major global copyright conventions, Berne 
Convention and the Universal Copyright Convention. Hence, Indian works are 
accorded copyright protection in all leading countries of the world. 
Likewise, foreign works and works of foreign authors are accorded the same 
protection in India as Indian works.