Intellectual Property Rights (IPR) for Traditional Cultural Practitioners

Issue: What rights do they have over their traditional songs that have been passed down through generations?

1. Traditional Knowledge, Folklore, and Copyright

1. Traditional songs/folklore often fall under the category of traditional cultural expressions or folklore. These are collective, community-owned or passed-down works that often lack a single identifiable author and may not be fixed in written form in a "final medium. Because of these features, conventional copyright law faces challenges in protecting them. (ijsr.net) 

2. In Indian law, the Copyright Act, 1957 does not expressly provide a "folklore copyright" or sui generis regime for traditional cultural expressions or oral tradition. (Kautilya Society, RMLNLU)

3. One partial protection is via Section 31A of the Copyright Act, which deals with unpublished Indian works whose author is unknown or cannot be traced. That gives some protection if someone later publishes or exploits a "work" whose authorship is unknown. (Kautilya Society, RMLNLU) 

4. But that protection is limited (in terms, scope, and enforceability). Many traditional songs will not qualify under Section 31A (because they may already be publicly known, or do not satisfy "work" in a fixed medium, or their community cannot be identified clearly). (Kautilya Society, RMLNLU)

5. For traditional knowledge more broadly (e.g. medicinal formulations), there is the Traditional Knowledge Digital Library (TKDL) in India, which catalogues and documents traditional knowledge to prevent misappropriation (especially in patents). But TKDL is focused more on medicinal, scientific, and botanical knowledge than songs or musical folklore. (WIPO)

6. Because of the limitations, many communities try to use alternative mechanisms (e.g. customary laws, community protocols, documentation, licensing, contracts, collective trademarks or geographical indication (GI) in some cases) to assert control. (Maheshwari & Co.)

Conclusion for traditional songs:

They may not have strong, automatic copyright protection under standard copyright law, especially if the song is in oral tradition, lacks a fixed author, or is not "fixed." If someone later records or fixes the traditional song into a recorded medium (audio/video) or transcribes it, that specific recording or transcription may itself acquire copyright (in that rendition) with its makers. The community can attempt to assert rights by documenting, registering, or licensing the use of the traditional songs, and by negotiating with users who wish to use them. They should also keep evidence (archives, community documentation) of usage, origin, communal claims, customary rules, etc.

Original New Songs in Indigenous Languages

Issue: When they write new songs in their indigenous languages for films or other projects, who owns the copyright?

When a musician writes an original new song (melody + lyrics) in an indigenous language, that is clearly an original musical work + lyric work. This is within the domain of copyright law, if the work satisfies the threshold of originality and is fixed in a tangible medium (recorded or written down). The composers) of the melody, and the lyricists) of the text, are typically the original authors. They own copyright initially (unless there is an agreement to transfer or share) under Section 17 of the Copyright Act. (indialawoffices.com)

If multiple persons collaborate (composer + lyricist + arranger), then the copyright is joint among them in the proportion agreed (or default proportion).

If they are hired (for example, by a film producer) to write a song under contract, the contract may specify ownership or assignment (subject to the legal rules).

The authors also have moral rights under Section 57 (right of paternity, right to integrity), which persist even if they assign copyright. (Kautilya Society, RMLNLU).

Protecting Collective Cultural Heritage & Individual Creative Workage

In sum, their traditional heritage works more through documentation, community protocols, and controlled licensing, while their new works should be treated as copyrightable works with contracts, registration, and enforcement.

Understanding Royalty

Issue: Many of them do not understand the concept of royalties or how it applies; they are often paid a one-time fee, which may be insufficient.

Guidance Needed:

1. What is a royalty (in simple terms)? 
   A royalty is a payment made to a copyright owner, based on the ongoing use or earnings of the work (rather than a one-time flat payment). It is often a percentage of income the work generates (from sales, streaming, performance, broadcasting, licensing, etc.). For example: "You pay me 10% of net receipts from the film's soundtrack sales whenever it's used."
2. Types of royalties
   • Performance royalties / Public performance royalties: When the song is played in public (concerts, radio, TV, streaming, restaurants, malls), the composer, lyricist, performer may receive payment from a performance rights organization (PRO) or through collecting societies.
   • Mechanical royalties / Reproduction royalties: When the song is reproduced (e.g., CDs, digital downloads, streaming, film soundtrack reproductions) — the rights to reproduce the composition must be licensed, and the composer/lyricist is paid a royalty per reproduction or as a share.
   • Synchronization (sync) royalties / synchronization license: When the song is synchronized with visuals (e.g., in a film, TV show, advertisement), a sync fee and/or royalty is payable.
   • Print / sheet music royalties: If lyrics or music sheets are printed and sold.
   • Digital streaming / download royalties: Platforms pay per stream or per download, and a share goes to composers/lyricists (via mechanical or performance rights).
   • Neighbouring / performer royalties: For performers (singers, session musicians), when their recorded performance is played publicly or broadcast.
3. Examples of royalty application
   • Suppose a film uses a song written by a composer. The composer may negotiate: upfront license fee + 5% of gross revenue from soundtrack sales.
   • If the song is streamed 1 million times, and per-stream revenue is 80.10, the total revenue is €100,000; if royalty share is 10%, the composer would get 710,000 (minus intermediaries).
   • A singer whose recorded performance is used on radio may get performance royalties via the collecting society.
   • A producer might license the song only for use in the film (territory: India; term: 5 years), and after that, rights revert to the composer, who continues to earn from performance and other uses.
4. How to negotiate for royalties instead of a flat fee. Some tips:
   • Always ask for a minimum guarantee + royalty: i.e. a base fee plus a contingent royalty beyond a threshold.
   • Limit the scope of rights you grant: for a certain term, territory, medium (e.g. film only, not merchandising).
   • Include audit rights: allow you or an independent auditor to check accounting of usage and revenues.
   • Specify clear payment timing, accounting periods, statements.
   • Seek a reversion clause: after the term, rights revert to you.
   • Insist on a percentage share for long-term usage (e.g., streaming, re-broadcast).
   • Use comparable market benchmarks (if other artists in your field command 5-10 %, you can argue similarly).
   • Avoid "all-use-perpetual" grants: push back unless compensated for full rights.