The recent copyright infringement claim of a singer/songwriter namely Nirmala Maghani against a corporate brand famous for the music show, “Coke Studio” has again brought to light an undervalued sphere of intellectual property; music copyright law.
Globally, music copyrights has attained importance equivalent to that of property rights; it is sold and licensed as a business commodity. Bruce Springsteen, an iconic American rock singer’s catalogue was recently purchased by Sony Music for a whopping five hundred million dollars. Beatles member Sir Paul McCartney’s feud with Michael Jackson began with Jackson buying the entire Beatles catalogue.
Pakistan is yet to develop a regime whereby expressions of ideas gain as much significance. Despite having legislations and institutions for protection and regulation of copyrights, our musicians and producers have been vulnerable to infringements resulting in a lack of economic activity within the music industry.
Copyright in Musical Work (music, sound, song) is regulated by Copyrights Ordinance, 1962 and Copyright Rules, 1967. Government of Pakistan has setup Intellectual Property Organization (IPO) headquartered in Islamabad with regional offices in Lahore, Karachi and Peshawar for registration of copyrights, trademarks and patents.
Government of Pakistan has also established Intellectual Property Tribunals in Islamabad, Lahore and Karachi for adjudicating disputes. IP tribunals are efficient in providing remedies which includes injunctions, declarations, damages, accounts and fines. However, damages are rarely granted by the court in the case of copyright violation. Pakistan is also signatory to the Berne Convention under which foreign copyrights have to be given equal protection as to that of local copyrights.
Assignment in Pakistan can only be done for a maximum period of 10 years after which the copyright automatically reverts to the original owner. This is the biggest hurdle for investors, businesses and enterprises who wish to deal in buying and selling of music catalogue.
A certificate of copyright issued by IPO is a prime facie evidence of ownership of the copyright. A copyright certificate holder is deemed to be the lawful owner for all intents and purposes and no forum without formal adjudication can take an adverse action against the copyright holder. The average processing time for grant of copyright certificate is one year with fee per song as low as three thousand rupees. Letter of acknowledgement is granted to the filer within two weeks by IPO which can be used in a court of law as a piece of evidence proving bonafide of ownership.
Copyright registration is not compulsory in Pakistan which implies even without a certificate, the content creator can raise a claim before the Intellectual Property Tribunal on infringement. A certificate also does not disentitle another party from disputing the copyright certificate. Nonetheless, copyright certificate remains the best legal basis upon which any licensing or assignment of the music can be done.
The copyrights of a musical work belong to the composer of the song. Yet, where in a case the work entails work-for-hire regime or under a contract of employment, the employer is the holder of the copyright holder. The superior courts have interpreted it in a strict sense by only allowing employer to hold the copyright if there was an agreement to that effect. Hence, just a contract or a working relationship does not operate as a de-facto assignment of copyright to the employer.
The life of copyright in Pakistan is life of the author and 50 years after his death. Upon the death of the artist, the copyrights just on the pattern of other property rights dwell upon the legal heirs. First owner of copyright is the composer of the song/musical work. Yet, singer, writer or producer though not involved in the creative person can also hold copyright after taking No Objection Certificate from other contributors. Government sanctioned musical content has a copyright of fifty years after which it dwells upon the public.
There are two ways of giving another party the right to use music. The first way is assignment of copyright which in strict sense means selling the song. A copyright holder can assign partially or wholly to an individual or a company all the rights through a written deed of assignment submitted to the IPO along with the application. Future assignments can be done but are only effective once the future work is completed. On assignment, the assignee is deemed to be the owner of the copyright. In a case of assignment, the original author still retains some specific rights over the music and can file a claim in a case where the original work is being exploited morally.
Assignment in Pakistan can only be done for a maximum period of 10 years after which the copyright automatically reverts to the original owner. This is the biggest hurdle for investors, businesses and enterprises who wish to deal in buying and selling of music catalogue. Just across the border in India, there is no such timeline for assignment of copyright. In America, the assignment is valid for roughly sixty years after which the author can reclaim their ownership rights in any work. The law related to assignment in Pakistan needs to be reviewed to allow international investors, labels and distribution companies to show interest in Pakistan’s music industry.
Another way of transferring rights in music is through licensing. A license does not imply change of ownership but only gives partial or full “usage” rights to a third party. There is no time-limit for duration of license but the same can be revoked or terminated by the copyright holder. Licensing can be exclusive or non-exclusive. Exclusive license implies that even the original copyright holder is barred as to the rights licensed. Non-exclusive license would allow the transferee to use the music without affecting the rights of any other party which also has been granted a non-exclusive license.
The case of Nirmala is an eye opener for a number of important reasons. The expanding digital and IT sphere for distribution of music makes musicians vulnerable to infringement. Secondly the big corporations’ investment into music in the last decade has made music in Pakistan a “industrial commodity” which can easily be exploited for commercial reasons. Corporate hunger for profit has no limits and musicians neither stand a chance to legally defend or legally protect themselves from infringements. Yet, most importantly, the movers of this industry would always remain the musicians themselves. An unprotected and vulnerable environment would only result in musicians opting out of the industry. Hence, it is all imperative that musicians understand their rights and that the copyright regime is strengthened through participation of all stakeholders for the growth of the industry.
