In this blogpost, Pritishree Dash, Student, National University of Advanced Legal Studies, Kochi, writes about the overview of copyright law in relation to sound recording and musical composition as per the Copyright Amendment Act, 2012. 

Copyright law: Overview with regard to Sound recording and musical composition:

The expression copyright refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorization. That act is the making of copies of the work (WIPO). Musical compositions with or without words are included in the list of literary and artistic works given in the Berne Convention for the Protection of Literary and Artistic Works.

In a 1952 issue of the Chicago Daily Tribune, journalist Will Leonard described the idea of covering a song as “trade jargon meaning to record a tune that looks like a potential hit on someone else’s label”. There are also several concerns on the part of the original music composers that companies making cover versions, remixes and music videos of their compositions are debasing the compositions. In the case of The Gramophone Company of India Ltd vs. Super Cassette Industries Ltd[1], the Hon’ble Judge has remarked, “What is a version recording? A version recording, we are told, is a sound recording made of an already published song by using another voice or voices and with different musicians and arrangers. Version recording is thus neither copying nor reproduction of the original recording”. Infringing copy” with reference to a sound recording, which is relevant, is defined under Section 2(m) (iii), thus: “infringing copy” means,- in relation to a sound recording, any other recording embodying the same sound recording, made by any means. Section 13 defines the works in which copyright subsists. It provides that copyright shall not subsist in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording; copyright in such work has been infringed. Section 14 specifies the content of the rights comprised in the “copyright.” Section 14(e) of the Copyright Act deals with sound recordings. An owner of copyright in sound recordings would have the following exclusive rights:

– to make any other sound recording embodying it;

– to sell or hire any copy of the sound recording; or

– to communicate the sound recording to the public.

The Copyright Amendment Act, 2012

The Copyright Amendment Act, 2012 brought in a phenomenal change with respect to the rights of music directors, lyricists and performers. Javed Akhtar’s maiden speech in Rajya Sabha for Amendment to Copyright Bill 2010 made a very persuasive speech and was instrumental in lobbying for the amendments. Section 31C of the Copyright Amendment Act, 2012 deals with statutory licenses that can be obtained for making a sound recording in respect of any literal, dramatic or musical work. “Cover version” means a sound recording made in accordance with the above-mentioned section. There can be two forms of licenses that legalise this action i.e. Statutory licenses and General licenses. While a statutory license is governed by the provisions of this Act, a general license is made on the terms and conditions as agreed upon between the licensor and licensee. This section also lays down various other rules which one has to abide by while making a cover. The person making the sound recordings should give prior notice of his intention to make the sound recordings. Such sound recordings shall be in the same medium as the last recording unless the medium of the last recording is no longer in current commercial use. Copies of the covers/labels have to be disclosed to the owner of the sound recording prior to the release of the cover version. The cover version should explicitly mention that it is a cover version of the original sound recording. There should be no alteration of the sound record unless it is technically necessary. Statutory licenses are not mandatory. If an artist wants to make a cover version before the expiry of 5 years of the original work or wants to negotiate on the point of royalty, he has the option of acquiring a general license. The production of covers without the consent of the owner of the original song amounts to copyright infringement. The owner is entitled to civil remedies like an injunction, etc. when such violations occur.

Some cases have arisen both in India and abroad where it has been contended that sound-alike recordings are an infringement of the original sound recording even though the same may have been validly made under the statutory mechanical licensing provisions. Fortunately, this illogical contention has been rejected by the courts; each sound recording constitutes the recording of a separate performance by a different set of performers and musicians and results in a new sound recording capable of being protected under copyright. In Mars Recording Private Limited v. Saregama India Limited, it has been clearly stated that “It would not be an infringement of copyright in a sound recording if the same has been made with the consent or by license of the copyright owner. If a negotiated consent is not possible, a person becomes legally entitled to make a sound recording of such a copyrighted sound recording by recourse to the procedure prescribed and subject to the conditions that would apply. It is to be emphasized that it, however, does not entitle the person to make a copy or a duplication of the sound recording. But is entitled to produce a “version recording”, which is a fresh recording using a different set of performers, musicians and artists and facilities. It would be a “sound alike” recording or a close imitation, of the original sound recording and would not be an infringement of the copyright.” As long as the cover versions are not intended to be economical in purpose, they can’t be violative of copyright laws.

[1] 58 (1995) DLT 99.