The history of copyright law in India can be traced back to its colonial era under the British Empire. The Copyright Act, 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957 with major amendments in 1994 & 2012. The most recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012.
Meaning of Musical work: Past & Present
According to Oxford English Dictionary music is defined as the Vocal or instrumental sounds (or both) combined in such a way as to produce beauty of form, harmony, and expression of emotion. The written or printed signs representing vocal or instrumental sound.
The current scenario: Section 2 (p) of the Copyright Act, 1957 defines – “Musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. [Amended in 1994].
Pre – 1994 Amendment: Sec 2 (p) – “Musical work” any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced.
Pre – Independence: The first Indian law relating to copyright was the Copyright Act, 1847 based on the English Act of 1842 enacted by the Victorian Parliament. The Act remained in force till the enactment of the 1911 Act which extended to India with necessary modifications for its application in India by the Indian Copyright Act, 1914. The 1914 Act was a short statute of 15 sections which annexed virtually the whole of the 1911 Act as its first schedule. Even after India became independent, the 1914 Act continued in force till the commencement of the 1957 Act.
“Musical work” was not defined either under the 1911 Act or the 1956 Act (of the United Kingdom).
The significant difference in reference to Indian context is that , from 1994 , requirement of fixation has been taken away . This is a very peculiar amendment because by taking away the fixation principle (which existed prior to 1994) the existence of MUSICAL WORK have come into doubt especially once it’s incorporated in the derivative rights. Why its being done and for whose benefit is the question that have no answers but series of legal issues have emerged and various courts have given the subsume theory with the pronouncement that MUSICAL WORK does not exist once it’s incorporated in sound recording / Cinematographic work and royalties cannot be asked for. The courts were apparently concerned about the problem of determining under these circumstances what constituted the work in question. Apart from the anomalies of fixation , other gap in the law exists which is not in coherent to the changed definitions which leaves sufficient grounds for legal interpretations of MUSICAL WORK. Unlike real and personal property , a copyright is an intangible property right whose boundaries do not have natural physical limits , therefore the fixation requirement renders those boundaries somewhat more concrete. Unfortunately in India , in infringement cases , the fixation principle on MUSICAL WORK is never touched upon. Pragmatically , when a work is embodied in a tangible medium of expression , one can point to something enabling the court to determine whether separate copyright exists or not ? Undoubtedly , it’s a severe loss to the music publishers and the authors but certainly it benefits the users because of wide scope for counter arguments in courts.
As such for fundamental understanding on copyright , students are advised to base their disapprobation reasoning less on doctrinal considerations concerns. However, at appropriate levels these issues will certainly be addressed in depth. To know more on the fixation principle please read the article http://www.medialexiconedu.org/2015/11/22/fixation-principle-for-musical-work-in-copyright-act-1957