Remix Of Music: Copyright

Implications In India

BY:

S.PARVADAVARDINI

TRADEMARK DEPARTMENT

ALTACIT GLOBAL

What is Re-mix of Music

Growth of Re-mix Albums in India

STAGE 1STAGE

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STAGE 4STAGE

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What is A Musical Work?

Definition of Copyright According to the Act Sec 14- For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

(a) in the case of a literary, dramatic or musical work, not being a computer programme, -

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

Copyright In Case of A Sound Recording

The following are the rights guaranteed by Sec14(e) of the Copyright Act, 1957 with regard to a Sound Recording:

To make any other sound recording embodying it

To sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions

To communicate the sound recording to the public.

Copyright Act & Re-mixes

Sec 52(1) (j) is considered the main savior or protective element for remixes. It states that the making of sound recordings in respect of any literary, dramatic or musical work would not be considered an infringement, if-

Sound recordings of that work have been made by or with the license or consent of the owner of the right in the work;

The person making the sound recordings has given a notice of his intention to make the sound recordings, 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 rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf.

Restrictions On Adaption of A Sound Recording

Prominent Case laws on disputes over Music Re-

mixSuper Cassette Industries Limited vs. Bathla Cassette Industries Pvt. Limited [2003 (27) PTC 280 (Del)]-A change of the singer in a vocal rendering is a change in the most vital constituent of a recorded song and cannot be done without the previous permission of the owner of the original recording as per the mandate of Section 52 (1) (j) of the Act. The voice is the soul and essence of a vocal rendering in a sound recording .Delhi High Court held that the plaintiff is not entitled to protection under Section 52(1)(j) of the Copyright Act 1957. Contd…….

…..ContdGramophone Company of India Ltd v. Supper Cassette Industries Ltd [1999 PTC 2 (Del.)]- The defendants after a span of twelve years released the version recording of an audiocassette with the same title. The defendants sent a letter to the plaintiffs acknowledging its copyright in the work and along with the said letter enclosed a cheque and notice that the defendants were making 5000 copies. The court held and emphasized that under the section, the person intending to make version recording has to take the consent of the copyright owner and issuance of notice was not sufficient to entitle the defendants to make the sound recording automatically.

….ContdGramophone Company of India Ltd v. Supper Cassette Industries Ltd (1996 PTC 16 252 Del)- The Court held that the Act permitted Version recordings but the defendant was not to use the inlay card or carton similar to that of the plaintiff. It was also directed that the defendant state it clearly on the cover of the work that it is a version recording and not the original work.

Shortcomings of Sec52 (1) (j)

Dilutes the 60 year protection conferred on the Copyright owner.

There is no specific limit on the royalty to be paid to the original owner of the copyright, due to which the amount paid is often abysmally low.

Losses suffered by the Music industry due to fall in sale of original work

Change to what extent is permissible, is not clearly defined, this is taken advantage of, which stifles creativity.

Defeats the basic object of Copyright Law

Proposed Amendments to the Copyright Act

Extend the protection guaranteed to five years

A minimum royalty of 50,000 copies have to paid annually to the original holder of the Copyright, irrespective of the number of copies sold.

A system of statutory licensing to be introduced to ensure that the public has access to musical works over the FM Radio and Television networks and at the same time the owners of copyright works are also not subject to any disadvantages.

A statutory license for version recordings and authorship will be introduced to ensure that the interest of the copyright holder is duly protected while making a sound recording of any literary, dramatic or musical work.

Right to the authors to retain their right to receive royalties and the benefits enjoyed through the copyright societies

Right to the authors of the works, particularly songs included in the cinematograph film or sound recordings, receive royalty for the commercial exploitation of such work.

Aim Of The Proposed Amendments