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.
