Cover Recordings : Is it the same version?
by Neel Mason
The Copyright Amendment Act 2010 proposes to amend provisions relating to version recordings or cover recordings, the interpretation of which has been in dispute before courts for a considerable period of time. The courts have, in my view, yet to decide the issue of whether or not consent is required from the owner of rights for such recordings. In Gramophone Company of India Limited vs. Super Cassettes Industries Limited (1998) the Delhi High Court had granted an injunction restraining the sale of the version recordings when the owner of copyright responded to the party proposing to make the sound recording and expressly refused permission. The Karnataka High Court came up with a different view in Gramophone Company of India Limited vs. Mars Recording Pvt. Ltd. (1999). This was appealed to to the Supreme Court in Gramophone Company of India Limited vs. Mars Recording Pvt. Ltd. & Anr. (2001) The Supreme Court, in the view of the author, did not decide the issue of whether consent is required from the owner of the works, but remanded the matter back to the trial court. However, the SC did set aside the order of the Karnataka High Court, stating in its order that the party who intended to make a recording, relied on the ingredients of the Copyright Act without pleading the factual basis for making this recording in the original plaint before the trial court. While this order was passed close to a decade back, and while there have been other litigations subsequent to this, the issue of the requirement of consent of the owner of copyright has still not been resolved.
One hoped that the present set of amendments would do this; unfortunately this was not to be. The proposed amendment comes in the form of a new Section31 C under the title “Statutory License for Cover Versions”; it is pertinent to note that till date, the Copyright Act has never used the term “cover version”. The critical statutory change envisaged is that a version recording will now be treated under a Statutory Licensing framework and not as a Defence to an Infringement of Copyright, as is the case now.
There are a few changes to the elements of the Section, significant among those include
(i)The version recording can only be made after five years calendar years after the end of the year in which the first sound recordings of the work was made (the existing provision mandates a two year window)
(ii) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made : {this particular clause has a significance grounded perhaps in reality in as much as parties have concerns in relation to exploitation that is not accurately accounted for}. However the Copyright Board may, by general order, fix a lower minimum in respect of works in a particular language or dialect having regard to the potential circulation of such works.
(iii) The 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.
The only concern remains as to whether the interpretation as to whether consent of the owner of copyright is required.
The Statement of Objects and reasons sets out that the purpose is to introduce statutory licensing for version recordings of all sound recordings to ensure that while making a sound recording of any literary, dramatic or musical work the interest of the copyright holder is duly protected. The proposed new section 31C seeks to provide statutory licence to any person desiring to make a cover version of a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.
However it is interesting to see that proposed new section contains similar elements to the existing legislation, the interpretation of which are still pending before various Courts.
The Section as it now stands is as follows (read in continuation without the breaks that Section 52 necessitates and is only the relevant extract) “The following acts shall not constitute infringement of copyright, namely the making of sound recording in respect of any literary, dramatic or musical work, if (i) Sound recordings of that work have been made by or with the license of consent of the owner of the right in the work; (ii) the person making the sound recordings have given a notice of his intention to make the sound recording, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of the rights in the work royalties in respect of all such sound recordings made by him at the rate fixed by the Copyright Board in this behalf
Provided that…..”
The proposed amendment would read as (the relevant extract for the purposes of the article)
“Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section:
Provided that 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.
(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided….”
In essence, the conditions for a statutory license as proposed by the Amendment remain the same as the conditions for a defence to infringement of copyright in the existing legislation. Therefore the issue of whether the consent of the owner of copyright is required still remains open to interpretation. If the courts do take the view that consent is necessary under the Section as it now exists, it is possible that the same interpretation will be taken in relation to the Amendment.
Given the fact that there are several litigations pending it may not have been appropriate for the legislature to clarify whether the consent of the owner of copyright is necessary, but the amendment by leaving the issue of consent open to interpretation, has not plugged the gap that has led to years of unresolved litigations.
Mr. Jagdish Sagar, a former senior bureaucrat and author of the 1994 amendments to the Copyright Act sends in the following comments:
I don’t fully agree with Neel. It’s true that the courts have yet to make what seems to some of us to be the obviously correct interpetation of section 52(1)(j) of the Copyright Act. But the fact remains that many in the industry generally do routinely use the provision, and the copyright owners are often content to receive the prescribed royalty. Further, if you read the provisions of section 52(1)(j) carefully, it’s obviously nothing but a statutory licence. The mere fact that it is located in section 52 doesn’t change that: the exercise of the right to obtain statutory licence is not infringing of copyright, hence not illogically placed in section 52. However, it will clarify the intention of the legislature by relocating the provision in the chapter on licensing. What is erroneous in the proposed amendments is only the claim, made in the Statement of Objects and Reasons, to be introducing a statutory licence for cover versions.
I don’t think it would be right to specify by amendment the (to me, obvious) fact that the statute does not require the copyright owner’s permission for availing of the statutory licence, Doing so would have strengthened the hands of those who oppose the present statutory licence, in pending litigation.
Warm Regards,
Jagdish Sagar
dear prashant, just came across your blog as i was researching on remixes and cover versions under CR Act. Thank you for your inputs, they were really helpful as I was confused about the purpose of this amendment. There was not much of a big difference in Section 52 1(j) and Section: 31 (c) (1), except for the number of years and royalty. Can you pls clarify if Setion 31 (C) (1) would apply to remixes in India. I came across many HC judgments prior to 2012 amend opposing remixes (ram sampath – Krazzy 4 tune) and am confused if the Indian Courts have taken any stance on remix as such?? Would Section 31 (c) apply to remixes as such??