Published by The Daily Star on 14th May, 2011 (Link Here)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Query We have an upcoming heavy metal band in Dhaka. We are usually known as an underground band. When the band formed we all wrote songs for the group. The problem occurred when a former band member spread a rumor on our facebook page, to our friends and fans and demanding that we remove songs and quit playing them because of copyright infringement. We believe the songs belong to the band. Are we correct? Do we have recourse? Can we make a copyright agreement. I don’t have much knowledge about the entire area of law. Can you please show us a light of hope so that we can preserve our creativity!

Cheated, Baily Road, Dhaka

Response We would like to thank you very much for your queries. From the fact we have understood that your problem relates to Intellectual Property and its protection. Firstly, you wanted to know whether the songs created by the band members belong to the band. Unfortunately, the songs do not belong to the band. This is because the band is not a legal entity hence it can neither own nor protect any property, either real or intellectual. So, the Copyright being an intellectual property cannot belong to the band.

Considering your second query as to any recourse that you may take, the Copyright Act 2000 of Bangladesh provides for a list of works entitling to Copyright protection. The list of work contains musical works and hence the songs are brought within the preview of this Act. According to the Copyright Act 2000, author of a work is the first owner of Copyright contained therein. As far as musical work is concerned, it is the composer (i.e. the person composing the song) who is the author. So, the composer of the song is entitled to register the Copyright of the song in his name. However, in order to avail the protection, it is necessary to apply to the competent authority for registration of Copyright in the statutorily prescribed manner with the payment of prescribed fees. Hence, the demand of the former band member as to infringement of Copyright is not maintainable, unless he is the composer of the song. So, it may happen that the Copyright of some of the songs belong to him whereas the copyright of other songs belong to different other members of your band.

It is worth mentioning that the owner of Copyright is also entitled to allow any other person to use the work wholly or partly by assigning the right in such manner. Considering your query regarding Copyright agreement, we would like to advise you to form a Company in the name of the band and have the songs registered under its name. This is because a Company is a separate entity which can own property. Holding the shares of the Company, you and other members of the band can be the part of the Company. This would be very helpful for avoiding any dispute over the musical works in the upcoming days and the creations of your band will also get necessary protection.

In Bangladesh, the protection of Intellectual property is still a new concept and the concerning law is not suitable for sufficient protection. In consequences, it will not be surprising if you find the Copyright of the songs already registered. In that case, you may have to be involved in lengthy process involving litigation. We always prefer for settling any dispute beyond the court as litigation is not only time consuming but also costly. We hope that the aforesaid advice will help you to resolve your queries and solve your problem.

For detailed query contact: omar@legalcounselbd.com.