COPYRIGHT MADE EASY – [ Student Series ]
CME [Student Series] LW 1 – 06
ISSUE / DISTRIBUTION RIGHT IN LITERARY WORK OF
[ Book authors , Film story writers & Lyric writers ]
What is Mechanical right ?
The term “mechanical” or “mechanical license” or “mechanical reproduction license” has its origin from early 20th century when “piano rolls” were used for recording the music on it. Mechanical right covers the mechanical reproduction of a recording in multiple copies. A mechanical reproduction license grants the rights to reproduce and distribute copyrighted musical compositions (songs) on CD’s , records , tapes, ringtones or in any Digital configurations. Concept is primarily to share the royalty incomes received from mechanical reproduction (utilised in any format) among authors , publishers and / or owners / other owners (as per contractual obligations) , covering widely any copyrighted audio composition rendered mechanically; that is, without human performers. Essentially, a mechanical license is a written permission from the publisher or by the literary and musical work author (if not assigned to publisher) to manufacture and distribute record, CD or audio tape for a specific copyrighted composition.
In india, Mechanical rights existed since the inception of the Copyright legislation (as reproduction right) , however till the Copyright amendment 2012 there was no need to look into it in detail particularly on sharing the proceeds derived on reproduction (mechanically) ( unless any agreement to the contrary) because all the exclusive Copyrights vested with the Producer and / or other owners ( publishers and music companies/ record labels).
The Mechanical (reproduction) copyright in a recorded work should not to be equated with the Copyright of the sound recording. These two rights are distinct from the bundle of rights given by the statute. Technically a Mechanical reproduction right is raised whenever a reproduction (copy) or format transfer takes place and this has been adequately covered under section 14 (a)(i) (ii) of Copyright Act 1957.
Even today also ( particularly as per the business model in india is concerned) the ownership of mechanical rights (i.e) reproduction rights are first taken from the original authors of musical and literary work by the cinematographic film producers and then it’s assigned to music companies (unless any agreement to the contrary) who does the business of publishing (as publisher) and of the sound recording BUT…… the twist is that in the recent amendment of 2012 ,authors have been given complete protection for receiving the royalty from utilisation in ANY FORM as per the proviso added in Section 18 & 19 in Copyright Act 1957 ( irrespective of whatever complex business structuring being done by the film producer , publisher or music companies). Further, for mechanical right royalty (reproduction right) for (Lyric writer and composer in particular) once they part with it by way of assignment, licensing or on work made for hire “the royalty sharing on equal basis with the assignee of Copyright for ANY utilisation” is in tact. Students are advised to read carefully the newly inserted last proviso in Section 17 read with Section 30A , 18 & 19 of Copyright Act 1957.
On plain reading the above section(s) ,proviso(s) and sub section(s) it’s crystal clear that under no circumstances (except the exemptions carved ) the right to royalty of the author cannot be waived and any agreement to contrary “shall” be void. That means while executing the contracts if the cinematographic film producers or publisher or sound recording producers have chopped the hands of authors – “right to receive royalty” cannot be stopped for utilisation of such work in ANY form. Therefore, post 2012 onwards, “Mechanical reproduction right” in India is the most crucial for publishers / authors and other owners from financial standpoint in sharing the royalty among themselves.
Examples of Mechanical rights are :- when CD is issued by the record labels, when MP3 is purchased for downloading , Music video stream, when music videos are reformatted for broadcasting , when music is uploaded in Broadcaster’s grid for Broadcast etc. Therefore , royalty from various sectors like TV Broadcasters, online download and streaming services (music and radio) including mobile networks, record labels producing physical products, TV production houses, Ad agencies ( for TV and Radio Ads) etc have to pay to the Mechanical right society which will be shared among music publishers , composers and authors.
As per Indian Copyright Act 1957 the term is not defined and there is no need also because this right is considered as part from the “bundle of rights”. Please note , various rights that are assigned (and named) while utilising for commercial exploitation is not defined in Copyright Act 1957. For instance video rights , Internet rights , publishing rights, satellite rights etc are not defined but these rights emerges from the bundle of exclusive rights given under the statute.
From above explanation it can be safely derived that Mechanical Right (reproduction right) section 14(a)(i) and Section 14(a)(ii) Distribution (issuance right) which helps to facilitate the issuance of the copyrighted work to be reproduced mechanically , originally belongs to authors and later it is assigned to Publishers which they have to share with the authors thru collective administration society (Mechanical Right Society).
Another important aspect that to kept in mind is that , business dynamics is anti-clockwise in India but the essence of mechanical rights (reproduction right) is same as found in other parts of the world. For instance, in west the lyric writer and the composer approaches the publisher first and then publisher makes the deal with the record label and / or studios. In India , it’s reverse. Lyric writer and music composer first approach the film producer / studios and then the producer assigns to record label which they have their business under one hat as publisher and recording company. The reason for this primitive structuring in film and music industry in India is primarily due to the reason because till the Copyright Amendment 2012 there was no statutory requirement to share any royalty with the authors. Now with the royalty sharing legislation that has come up in recent amendment of 2012, these two functions (publishing & recording) should be in different entities otherwise if any injunction passed for non payment of royalty, whole company will come to stand still. With the ongoing conflict, the situation is inevitable as with each financial year passing its generating contingent liability which is statutory in nature. That’s why in Copyright matured countries the concept of publishers, record labels and studios are distinct and royalty payment mechanism are in place as per the requirement of their own legislations for sharing purposes.
Nevertheless, as for academic understanding is concerned , Mechanical Right royalty is an important revenue streams for lyric writer , composer and publishers ( not for film writers and book authors ) unless it’s audio book which are in plenty now a days in various websites for downloading.
In elementary level explanations in Literary work series (LW) we have emphasised in assumptions that literary authors have all the copyright with them and they have not assigned or parted with it. On same premise next in continuation will be – “To perform the work in public”.