Before you take Shakespeare seriously on music being the food of love and play on, check out copyright issues with experts.

SHAKESPEARE in his play The Twelfth Night said: ``If music be the food of love, then play on''.

Playing on in these days of musical copyright does not seem to be such an easy affair. The entire concept of musical copyright has now gone beyond musical piracy to include a host of broader issues, which we have attempted to touch upon in this article.

For any piece of music, international legislation generally provides for separate rights to the copyright in a recording as distinguished from the copyright in the musical work. The copyright in the ``musical work'' encompasses the actual musical composition created by the composer. The copyright in the sound recording, on the other hand, is basically the copyright that arises as a result of recording music, words or other sounds onto a tape, record, CD etc.

Similarly, under Indian law, the instant a piece of music is composed by a composer and captured in some permanent form, either on paper or on a recording tape, then a bundle of rights, will come into existence. The two most important of these rights would be the copyright in ``musical works'' and ``sound recordings''.

Musical copyrights may further be looked at from two perspectives:

* From the owner's point of view, at what point does a copyright arise, for how long does the copyright vest, and how does the owner of a musical copyright ensure its protection?

* From a user's point of view, if the user intends using a certain piece of music or a song whose copyright vests with a third party, the user would need to ensure that he

* Obtains the requisite permission to use the copyright

* Does not infringe someone else's copyright.

* Copyright Law further provides for Broadcast and Performers Rights.

Under Section 13 of the Copyright Act, 1957, the owner of the copyright in a musical work is the composer and the copyright will vest with him for his lifetime and 60 years thereafter. In the case of a sound recording, the owner of the copyright in a sound recording is generally the recording company, which has recorded the song or cut the compact disc. The term of this copyright is for a period of 60 years from the date of publication.

The issue of musical copyrights has assumed great importance today as the entertainment industry is poised to take off. The Indian entertainment industry is expected, within the next five years, to dominate the country's economy. In India, the entertainment industry comprises motion pictures, radio and television, advertising, live theatre, music and sports. The common factor in all these areas is the existence of music, whether it is Eric Clapton's You look wonderful tonight in an advertisement jingle or music incorporated in a television serial or movie. Accordingly, some areas of copyright consideration are:

* Radio and television broadcast -- The Copyright (Amendment) Act, 1994, makes a specific reference to broadcast. It defines ``broadcast'' as any communication to the public, which maybe by means of wireless diffusion or by wire, this would include satellite broadcasting and cable TV. More recently, the latest trend of Webcasting and broadcasting over the Internet may also fall, for the purpose of copyright ascertainment, within the definition of ``broadcast''. This would mean that any radio/television station Webcasting or broadcasting over the Net would require to ensure that they are not infringing existing copyrights in the content they are broadcasting.

The Act grants broadcasting organisations what is known as ``broadcasting reproduction rights.'' This would prevent any person other than the broadcasting organisation from:

i) Re-broadcasting what has already been broadcasted

ii) Causing the broadcast to be seen or heard by the public on payment of charges

iii) Making any sound/visual recording of the broadcast

iv) Selling or hiring or offering to sell or hire sound/visual recordings.

* Live performances -- Another area of possible musical copyright subsistence and infringement is any event staged, like a play, road show or concert. This has become particularly important today when many of our filmstars/singers are performing at various locations within India and abroad. Here there may be:

(a) Infringement -- If for instance an Indian band performs the music of certain well-known international artistes at a concert, it is imperative that they get permission to enable them to do so. Normally, this would mean contacting the artiste who holds the copyright in the musical work, of that particular piece of music and obtaining his/her consent to use the same. To make this simpler and more convenient to obtain today, a performer in India may approach existing performing rights societies, to obtain a licence to perform, for example the music of the Beatles in a concert to be held in Mumbai.

Performing rights societies

Since it is difficult for the owner of a copyright to protect his copyright in every country all over the globe, there exists today certain performing rights societies. Under the Indian Copyright Act, 1957: ``performing rights society'' means a society, association or other body, whether incorporated or not, which carries on business in India of issuing or granting licences for the performance in India of any works in which copyright subsists.

These societies serve a two-way benefit. The owner of a copyright will register his copyright with a musical society in his country, which will have affiliations to other societies the world over. Thus the owner will be able to protect his copyright not only in the country of registration but in other affiliated countries as well.

From a user's point of view, the user would merely have to obtain a licence from the concerned performing rights society. Generally each musical society has a large number of registered composers. This will save the user the discomfort of having to approach each composer individually.

In India we have for ``musical works'' the Indian Performing Rights Society (IPRS) and for sound recordings, the Phonographic Performance Ltd. These bodies, in turn, claim to be affiliated to various international bodies and record companies, enabling them to work on reciprocal arrangements. For example, a society such as IPRS claims to be affiliated to, among other record companies, Broadcast Music Inc (BMI), American Society of Composers, Authors and Publishers (ASCAP).

In the US, there are performing rights societies such as ASCAP and BMI, whereas, for sound recordings you have agencies such as the Harry Fox Agency in the US. There are similar societies in all countries.

(b) Creation of a copyright

The Copyright (Amendment) Act, 1994, has also granted certain performers the rights to individual performances whether they are actors, singers, musicians, conjurers, dancers or even speakers delivering a lecture. Accordingly the arising rights are:

i) No person may make a sound/visual recording of the performers performances

ii) Reproduce a sound/visual recording

iii) Broadcast the performance.

iv) Communication to the public otherwise than by broadcast

This is except for cases where the performer has consented to the incorporation of his performance in a cinematograph film. This means that when, for example, Shahrukh Khan consents to act in a film, he will have no rights in his performance thereof, the rights in his performance will vest with the producer of the film.

Both Broadcast reproduction rights and Performers rights vest for a period of 25 years from the date of performance.

* The last area of copyright consideration is what is known as ``elevator music'' the kind you hear in hotels or banks, maybe in violation of musical copyrights. Any playing of music in a public area such as a hotel or restaurant including lobby and other areas, is considered a public performance for purposes of copyrights. Whether any direct commercial benefit has accrued from it is irrelevant. Mere playing of music in a place where the public has access is enough to attract copyright issues.

To sum up, the concept of a musical copyright is not restricted merely to the creation, subsistence, term and infringement of the musical copyright, but more importantly includes the interpretation of these rights from both the owner's and the user's point of view, in a constantly changing entertainment industry.

So before you go ahead with Shakespeare's advice and just ``play on'', do not forget to get in touch with a few more people as well, specifically the various copyright owners and of course your lawyers.