Did I Steal Your Music?

Author: Antima Tiwari New Law College, BVDU, Pune

Introduction:

The music industry is one of the most dynamic and versatile industries. The Indian music industry has been on a new path of revisiting old music with their newly discovered young talents. There has been a sudden increase in what is known as remixing or creating a cover version of the songs. The basic objective of the Copyright Law is to make a balance between the encouragement for creativity and to promote the dissemination of information. The Copyright Act, 1957[1] protects the exclusive rights of the people working and creating new works in the field of literature, dance, music or any other artistic work. This protection helps their work from being misused or copied or used without the author’s prior permission. Since decades it has been debated that the concept of the remix or cover recording leads to the infringement of moral rights of the owners which are considered to be the core of any artistic work. The moral rights of the authors are recognized under Section 57 of the Copyright Act,1957[2]. In Amar Nath Sehgal V UOI,[3] The court recognized the importance of moral rights of the authors of the work and held that they are the most crucial part of any artistic creation.

Internationally, the moral rights of the authors were given global acceptance in 1928 which gave them due importance and consideration. The Berne Convention has provisions for the protection of the literary and artistic works. Article 6bis[4] of the Berne Convention talks about the provisions of attribution and integrity of the authors.

The Concept of Versions

To understand what amounts to infringement of copyright in the music industry one needs to understand different concepts of version which are witnessed nowadays. To start with, one must remember the different components of the song i.e. lyrics, melody and sound recording. The combination of these 3 makes up a song. Section 14(1) (a)[5] of the Copyright Act, states that the owner has the exclusive rights for any adaptation which needs to be made to his creation and will require its prior permission.

  1. Cover Version: The version of the song which is performed by a new set of artists and musicians. No alteration is done to the lyrics and the melody of the song and the same is performed by a new set of artists.  Under Section 31C, the term “Cover Versions” is defined as,

“…a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have (already) been made by or with the licence or consent of the owner of the right in the work…”

Section 31(3)[6] clarifies that while making such sound recording no alterations should be made to the original sound. The provisions read as,

“The person making such a sound recording shall not make any alteration in the literary or musical work which has not been made previously by (the owner himself) or with the consent of the owner of rights, or (an alteration) which is not technically necessary for the purpose of making the sound recordings…”

  1. Version Recording: Version recordings are same as cover recordings. This term was used by the music industry before the Copyright Amendment Act, 2012 came into existence. There is no mention of such a term in the current act.

In Super Cassettes Industries Ltd. V Bathla Cassettes Industries Pvt. Ltd.[7], the Delhi high court held that changing the singer of the song which had been sung earlier amounts to an alteration of the very song. It was considered by the court that the singer is the most crucial part of any sound recording and it was further held that it amounts to the infringement of copyright. Though, this judgement by a single bench was considered to be flawed as it was contradicting to the very essence of making version recordings.[8]

  1. Recreated Song: As the term suggests, it means the recreation of an already existing song i.e., creating a new melody, lyrics, musical arrangements and singers. Such a version is capable of new copyright. It takes small portions from the original songs to create an association between the old and the new song for the consumers.

For Instance, let’s take the example of the song “Dheere Dheere Se meri Zindagi me aana”, 1990 from the movie Aashiqui and the new song which is sung by Honey Singh & co by Zack Knight. The lyrics, melody, musical arrangements and the singers are very different and only a few lines are taken from the old song.[9]

  1. Remix: This is not defined under the Copyright Act, 1957. It refers to the remodelling of beats and tempos to make minor variations to the melody and the song. Under, Section 2(a)[10] of the Indian Copyright Act, 1957 it will be considered as an “adaption.”

Section 31C: The Remake

For the longest time, there have been controversies regarding Section 52(1)(j) of the Indian Copyright Act, 1957 as it allows the making of cover or version recordings of the songs when the conditions mentioned under this section are fulfilled. To sum up, Section 52(1)(j) states the exceptions to what can be termed as an infringement of the copyright.

Whereas, Section 51 constitutes the infringements to the Act.

The conditions which need to be fulfilled under Section 52(1)(j) of the act are as follows:

  1. PRIOR CONSENT OF THE OWNER

Case: Gramophone Co of India ltd V. Mars Recording Pvt. Ltd:[11]

In this case, the defendant sold the cassettes of the plaintiff’s song after they denied permission to use it. Further, the interpretation of section 2m(iii)[12] and Section 52(1)(j) suggested that as it was a fresh recording with a new set of musicians and the conditions under Section 52(1)(j) allows it to include the same if the sound recording already exists, which it did in this case.

The Supreme Court held that as long as the conditions under Section 52(1)(j) and Rules 21 are fulfilled there is no violation. Further several independent interpretations of the given sections suggested that the requirement of “consent” is only a prerequisite for the first recording made and not the subsequent one. According to Section 2m(iii), there is an infringement of copyright only when a new sound recording is made in an already existing one.

The question of copyrightability for the version and cover recordings were also raised.

The same reasoning was also adopted in M/S Mars recording Pvt Ltd V M/S Saregama India. Ltd.[13]

Case: Gramophone co. V Super Cassettes:[14]

In this case, the court held that,

“….in respect of a literary, dramatic or musical work, which has been circulated to the public by the author himself or under his authority, by making a sound recording, the protection of the author’s copyright is diluted so far as the making of subsequent recordings is concerned. Though he continues to own the copyright, his express consent is not necessary…”.

Further, emphasizing prior consent of the maker.

  1. NOTICE OF HIS INTENTIONS

  2. PAY ROYALTIES AS PRESCRIBED BY THE COPYRIGHT BOARD.

  3. NOT AMOUNT TO ANY ALTERATIONS

Case: Eastern book company v Navin J. Desai:[15]

In this case, the court held that a creation/recreation amounts to copyrightability if-

  1. a) Sufficient alterations are made;

  2. b) there has been sufficient contribution;

  3. c) it comes under the definition of ”Adaption” as mentioned in the act.

  4. IT DOESN’T MISLEAD OR CONFUSE THE CONSUMERS.

  5. IT SHOULD NOT BE MADE UNTIL THE EXPIRATION OF TWO CALENDAR YEARS.

This section was highly criticized by the Indian music industry as it allows any person to use the original sound recordings after two years of its commercial release. This section tried to de-monopolize the music industry but failed to maintain the balance.

The Copyright Amendment Act, 2012[16] brought with changes for the music directors, composers and other members of the music fraternity. The most crucial section can also be considered as an extended form but a much clearer form of the earlier Section 52.

Section 31C[17] made considerable changes in the earlier section and used the term “cover versions”. This section introduced a statutory licensee’s provisions. The following conditions are required under Section 31C;

  1. PRIOR NOTICE OF THE INTENTION SHOULD BE GIVEN TO THE OWNER.

  2. THE SAME MEDIUM OF RECORDING; if the original recording was on CD the cover version should also be on a CD.

  3. THE NOTICE SHOULD BE DISCLOSED TO THE OWNER IN ADVANCE.

  4. THE TRUE ORIGIN Of THE SONG SHOULD BE EXPLICITLY MENTIONED.

  5. THERE SHOULD BE NO ALTERATIONS.

  6. IT SHOULD NOT BE MADE UNTIL THE EXPIRATION OF FIVE CALENDER YEARS.

  7. ROYALTIES SHALL BE PAID TO THE OWNER AS PRESCRIBED BY THE COPYRIGHT BOARD FIFTEEN DAYS IN ADVANCE. (Minimum royalties should be paid for every 50,000 copies of work during each calendar year.)

Under this Section, the statutory licensees are to be granted only after the expiration of 5 years from the date of publication of the original work.  A general license is also granted if a person wishes to make the cover version before five years. The same has terms and conditions which are decided between the licensee and the licenser.

CONCLUSION

With this era of remixes and waves of cover versions, the infringement of the moral as well as the economic rights of the owner is bound to occur. The Indian courts need to balance the rights given to the owners and save their economic interest with giving protection and by giving a chance to new entrances in the industry to show their talent and creativity.

[1] Copyright Act,1957.

[2] Copyright Act 1957, s 52(1)(j)

[3] 2005 (30) PTC 253 (Del)

[4] Berne Convention, Art. 6bis

[5] Copyright Act 1957, s 14(1)(a)

[6] Copyright (Amendment) Act, s 31(3)

[7] 2003 (27) PTC 280 Del.

[8] Satarupa Guha, Version Recording Rights: An Overview; CSRIPR Dairy Volume (I) <http://nusrliplaw.weebly.com/uploads/1/3/3/1/13313802/version_recording_rights-an_overview_satarupa_guha_nlu_jodhpur.pdf>

[9] Anushree Rauta, Mashups, Cover Versions and all that Jazz under the Indian Copyright Law ( IPRMENTLAW, 14 April,2018) <https://iprmentlaw.com/2018/04/14/guest-post-ankit-relan-mashups-cover-versions-and-all-that-jazz-under-the-indian-copyright-law/>

[10] Copyright Act 1957, s 2(a)

[11] 2001 PTC 681 (SC)

[12] Copyright Act 1957, s 2m(iii)

[13] RFA No.125 of 2009 in its order dated 20 Jan,2015

[14] Dated 01 July, 2010 (4) PTC 541

[15] 92 (2001) DLT 403

[16] Copyright (Amendment) Act,2012

[17] Copyright (Amendment) Act 2012, s 30C

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