Journal of Intellectual Property Rights

Vol 12, September 2007, pp 480-487

Recording that Different Version – An Indian Raga

This paper discusses and critically examines the law relating to version recording rights, in the light of the
contemporary trends in the Indian music industry. Version recording rights have been the subject to intense scrutiny with the
music industry lobbying for deleting the provision. Certain amendments to the Copyright Act have been proposed by the
Human Resources Development Ministry which has been examined. The paper, divided into five parts, gives a brief
overview of the concept of copyright in the introductory part, the second part deals with the concept of adaptation in musical
work which forms the basis for the concept of version recording. The third part deals with the origin of version recording
rights in Indian law, under Section 52(1)(j) of the Copyright Act, and attempts to assess its impact on the music industry.
The fourth part discusses the Indian case laws. The final part, conclusion, critically examines the proposed amendments with
this regard and also covers authors’ views.

Keywords: Version recording, musical work, adaptation, copyright

The Indian music industry has been witnessing a new literary, dramatic, musical and artistic works. The
lease of life with the onset of new talent and the right also subsists in cinematographic films and sound
booming market for remixes. However, their advent recordings.2 The two essentials of copyright can be
has several implications for the music industry, chief said to be the originality of work and the fixation of
among them being the legal issues involving this original work in a particular medium. Copyright
copyrights held by original composers of the songs, confers certain exclusive rights on the owner, namely,
which are the subject of remixes. The Indian law right to: make copies of the work, distribute them,
provides for ‘version recording’ which permits play, show or perform his work in public, broadcast
adaptations of the sound recordings by third parties, the work and make adaptations in relation to the
without the consent of the owner, subject to work. By conferring these exclusive rights, copyright
fulfillment of certain conditions. The provision has law prevents third parties from carrying any of the
been criticized in recent years by the music industry above mentioned acts which fall in the copyright
as it is seen as legitimizing blatant copying of original holder’s exclusive domain. Copyright in a work does
soundtracks, at a fraction of the cost thereby causing not subsist in perpetuity, but is usually limited for a
losses to the music industry. prescribed period, after which the works are free to be
used by any one. It is thus, a negative right exercised
The Concept of Copyright by the author to the exclusion of all others.
The significance of copyright can be best described
in the words of Chinnappa Reddy J, as: The essential element in every copyrighted work is
‘An artistic, literary or musical work is the an original expression. Though no standard of
brainchild of the author, the fruit of his labour originality can be set, the basic requirement must be
and so, considered to be his property. So met, that the author must have spent sufficient
highly is it prized by all civilized nations that independent skill, labour and judgment to create a
it is thought worthy of protection by national new work in a fixed or a tangible medium be it on
laws and international conventions?’1 paper, canvas, tape, disk, film or other recording
medium which is capable of reproduction.3 The
Copyright refers to the exclusive right to do or concept of originality means the requisite amount of
authorize others to do certain acts in relation to skill or labour or talent in the work to merit
________________ protection.4 It is thus, a matter of degree which will be
†
Email: Corresponding author: singhnawneet@rediffmail.com examined when it is sought to be established.5
 VIBHAW & VENKATARAMAN: RECORDING THAT DIFFERENT VERSION – AN INDIAN RAGA 481

Unlike the other intellectual property rights, such musical work is ‘the composer’15 of the work, which
as, patents and trademarks, registration is not a pre- means the person who composes the music regardless
requisite for claiming these rights. The moment a of its recording in any form of graphical notation.16 In
work is produced it is deemed that the author of the case of a copyright over an original song, there may
work has the right over it. be two persons involved, who will be entitled to
Copyright has in the last century acquired more of separate sets of rights - first, the one over the lyrics as
an economic dimension as it provides protection to a literary work and the other over the musical
the traditional beneficiaries of copyright, like the notations as a musical work. However, if both, lyrics
individual writer, composer or artist by enabling them and music are authored by a single individual, that
to exploit their work commercially and recoup the person has copyright over both the lyrics as a literary
investment made for the creation of works. Today work as well as the musical work. The right to
copyrights are held by major industries, publishing, adaptation is an exclusive right of the copyright
film, broadcasting and recording industries, and owner and can be obtained only with the prior
computer software industry. Copyright is thus, permission of the copyright holder in accordance with
important for individuals and industries which depend the procedure laid down by the Act.17
on it for their livelihood besides impinging upon the Adaptations or arrangements in musical works are
daily life of the members of the public and business.6 usually made to suit a particular performer or a
Today no business can afford to be ignorant of the particular language. ‘Arrangement’ refers to the
implications of copyright in its daily work.7 Copyright contribution of original expression to a musical work
in short is nothing but the right to copy or reproduce before it was completed such as the composition of an
the work in which copyright subsists. Section 14 of instrumental accompaniment or an instrumental
the Copyright Act, 1957 discusses the meaning of passage that linked verse and chorus.18 If a musical
copyright.8 arranger decorates, develops, transfers to a different
The Indian film industry undoubtedly thrives on medium or otherwise changes the simple music of a
music, and it is estimated that the size of legitimate popular song to make his arrangement fall within the
music industry in the country is approximately Rs 620 description of an original musical work, such
crore.9 It becomes imperative therefore, that it is arrangement or adaptation is capable of attracting an
complemented by a legal regime which promotes and independent copyright. There is no need for the ideas
protects musical compositions and enables copyright- embodied in the arrangement to be novel.19 Each such
owners to reap the benefits of their work. The adaptation or arrangement is a musical work provided
Copyright Act, 1957 provides protection for musical there is a sufficient element of intellectual creation.20
works. Section 2(p) of the Act defines ‘musical work’ Even the word ‘transcription’ is used sometimes for
as ‘a work consisting of music and includes any musical adaptations but it has not been defined in the
graphical notation of such work but does not include Copyright Act of 1957. However, if we go by the
any words or any action intended to be sung, spoken dictionary meaning of the same, in context of music it
or performed with the music’. Thus, protection is means ‘an arrangement of a musical composition for
given to musical notations even though it has not been some instrument or voice other than original’.21 The
fixed in any material form. This proposition receives onus of proving existence of originality falls on the
support from Article 2(2) when read with Article 2(1) person claiming the copyright over the work.
of the Berne Convention.10
The landmark case on adaptation in a musical work
Adaptation in Musical Work is Wood v Boosey22, which was decided under the
The right of adaptation is an exclusive right of the Copyright Act of 1911. A piano reduction by Brissler
copyright owner. In relation to musical works11 of Nicolai’s Opera, ‘The Merry Wives of Winsor’ was
adaptation means ‘any arrangement or transcription of held to be an independent composition and attracted a
the work’.12 This is done by adding accompaniments, separate copyright in the arrangement and copyright
new harmonies, and new rhythm including in the piano reduction belonged to the arranger as the
transcribing it for different musical forces.13 Acts such author. There seems to be no Indian decision as to
as selecting and re-arranging older tunes or scores, what constitutes an arrangement of a musical work.
orchestrating or making a piano reduction may qualify Another case, which deals with the scope of
for its own copyright.14 The author in case of a adaptations, in particular, parodies which have
482 J INTELLEC PROP RIGHTS, SEPTEMBER 2007

become quite popular with audiences, was discussed copyright in the work royalties in respect of
in the landmark US Supreme Court decision of all records proposed to be made by him, at the
Cambell v Acuff Rose.23 Respondents, Acuff Rose rate fixed by the Copyright Board.
filed a suit against petitioners, who were members of
a rap music group ‘2 Live Crew’, claiming that their This provision was introduced into the Copyright
song ‘Pretty Woman’ infringed the respondent Acuff Act by way of an amendment, the Copyright
Rose’s copyright in the song ‘Oh Pretty Woman’. The Amendment Act, 1983.25 The rationale for the
petitioners pleaded fair use on the ground that their introduction of this provision was to encourage small
work parodied the respondent’s work. The District music companies to enter the industry and de-
Court and the Court of Appeals rejected the defence monopolize the industry which was dominated by few
of fair use, as they found that the petitioner is players like HMV.9 The significance of the
intended to make commercial gain of their work to the amendment lies in the fact that permission of the
detriment of the respondents. The Supreme Court copyright owner is not required to make adaptations
overruled the decision observing that, in determining of the recording, a right which is otherwise conferred
whether fair use is applicable, enquiry must focus on exclusively on the copyright owner. Thus, any person
‘to what extent was the work transformative, i.e. can make adaptations of the recordings after the
altering the original with new expression, meaning or expiry of two years from the date of release of the
message.’ The Court observed that ‘more original recording, by giving notice to the copyright
transformative the new work, less would be the owner and paying royalty at a rate fixed by the
significance of factors like commercializm.’ This Copyright Board.
landmark case established that in evaluating whether a There are other requirements that are to be met by
use is fair, commercial factors are not determinative the person intending to make version recordings,
of the use, but they are only one of the many factors namely, (i) Only such alterations can be made to the
that ought to be considered. original recordings, which are reasonably necessary
for the adaptation of the work for the purpose of
Version Recording making sound recordings; (ii) The sound recordings
Origin must not be issued in any form of packaging or with
Section 51 of the Copyright Act, 1957 enumerates any label which is likely to mislead or confuse the
acts which would constitute infringement. Section 52 public as to their identity. These requirements are
carves out exceptions to Section 51 by deeming intended to safeguard the moral rights of the author of
certain acts, which would otherwise constitute sound recordings as well as exclusive rights conferred
infringement, to be outside the purview of Section 51 on the copyright owner, by virtue of Section 14.
and hence not amounting to infringement. Section
The Copyright Rules, 1958, also prescribe the
52(1)(j) is one such exception, that permits creation of
procedure for making sound recordings. Rule 21 of
what are popularly called ‘version recordings’. A
the Copyright Rules, 1958, talks of the procedure
version recording is a sound recording made of an
employed in making the sound recordings under the
already published song by using another voice or
clause (j) of sub-section (1) of Section 52 of the
voices and with different musicians and arrangers.24
Copyright Act, 1957.26 The Rule provides that not
Version recording is thus, neither copying nor
only the person making the records would inform the
reproduction of the original recording.24 It has also
actual owner in advance of the intention to copy but
been defined as ‘singing of a well known song by a
would also ensure that the royalty is paid fifteen days
lesser-known singer’.24
in advance at the rate to be fixed by the Copyright
Section 52(1)(j) provides that making of sound
Board. In addition to this, they are also expected to
recordings of any literary, dramatic or musical work
provide the labels and covers with which the sound
would not constitute infringement if
recordings are to be sold. Information has to be
• Records recording that work have previously provided regarding the particulars of the work,
been made by, or with the licence or consent alterations, identity and other details of the copyright-
of the owner of the copyright in the work; and owner of the work, particulars of the earlier recording,
• The person making the records has given a number of copies and most importantly the amount
notice and has paid to the owner of the paid as royalty.
 VIBHAW & VENKATARAMAN: RECORDING THAT DIFFERENT VERSION – AN INDIAN RAGA 483

In the recent past, a profusion of remixes flooded section 52(1)(j).32 This concept has also attracted
market ostensibly to cater to the tastes of the younger criticism from the authors of the sound recording as
generation by remixing old songs. The question arises the moral rights of the author are violated, by what
as to what are remixes? There are two types of they see as the ‘unjust mutilation’ of timeless classics.
version recordings, namely, medleys and remixes. At the other end of the spectrum are those who are
The term version recording has become synonymous in favour of version recording arguing that remixes
with remixes. A version recording refers to any have caught the fancy of the younger generation.
adaptation made to a sound recording and is Alternative Law Forum (ALF), a reputed NGO that
distinguished by the two ingredients it has, different works on various aspects of law, legality and power
singers and different orchestra. Medleys are a musical argued that Section 52(1)(j) has allowed small
selection where the music is one or two minutes long companies to emerge, and produce for marginalized
and is basically an arrangement of snippets of original language markets in diverse geographical locations
songs according to the arranger’s choice. Remixes are thereby benefiting under-served languages and genres
a form of version recordings where old tunes are and significantly enhancing the domain of folk
adapted to a new musical arrangement. It basically culture.33
involves repositioning of an old hit song to suit the
present-day musical tastes.26 Instead of old traditional Indian Cases
musical instruments like tanpura and tabla, There have been very few cases so far as version
instruments used in a remix are digital drums and recording is concerned even in India, the earliest
synthesizers, and even the voice of the singer is being the case of Gramophone Company of India Ltd
electronically manipulated.26 It has been suggested in v Super Cassette Industries Ltd.34 In this case, the
the US and Australia that remixes may encounter plaintiff had produced audio records titled ‘Hum
legal issues if a whole or substantial part of the Aapke Hain Kaun’ under rights alleged to have been
original work is copied or used27, but the Indian assigned to it by Rajshree Production Pvt Ltd who
Copyright law under Section 52(1)(j) permits were the copyright owners of the cinematographic
adaptations of the original sound recording in the work. The plaintiff claimed that as they had sold
absence of a license and does not permit making of 55 lakh audio cassettes and 40,000 compact discs
substantial alterations or omissions28 unless titled ‘Hum Aapke Hain Kaun’, the title ‘Hum Aapke
reasonably necessary for the purposes of adaptation, a Hain Kaun’ when used on a record, would come to be
standard which has been rigidly interpreted by courts. associated with the plaintiff alone.
The plaintiff’s alleged that the defendants launched
Assessment of its Impact on the Music Industry an audio cassette by adopting ‘Hum Aapke Hain
Version recording is believed to be a result of the Kaun’ as its title with its design, colour scheme, get-
nature of ‘copyculture’.29 The rapid advancements up and lay-out which were deceptively and
made in technology imply that it only takes a single confusingly similar to that of the plaintiff's and also
evening to get the entire album done and sent to the used a photograph of Salman Khan and Madhuri Dixit
particular market where such version recordings are in on the inlay cards. Hence, a suit for permanent
demand. The high returns and small investments has injunction was filed by the plaintiff seeking to restrain
made version recording a highly lucrative the defendants from manufacturing, selling, or
business and at the same time a competitive one.30 passing of audio cassettes under the said title or from
The provision undoubtedly dilutes the 60 year using a carton or inlay card identical or deceptively or
protection that is conferred on the copyright owner. confusingly similar in design, colour scheme, lay out
Opponents of Section 52(1)(j), the music industry in and get up, to the packaging used by the plaintiff.
particular, feel that the provision unjustly dilutes the Along with the suit, the plaintiff company also moved
rights of the copyright owner and has resulted in huge an application under Order 39 rules 1 and 2 for grant
losses. The music industry has lost about Rs 1,800 of ad-interim injunction.
crore in the last three years due to ‘illegitimate It was decided by the Court that as the Act
music’.9 That comes to about Rs 600 crore a year, of permitted version recording, the defendants were
which Rs 450 crore is due to piracy and Rs 150 crore entitled to record the music subject to the condition
due to remixes.9 Amounts paid as royalty are that they should not use the carton or the inlay card or
abysmal (3-5%)31 which makes a mockery of any other packaging material similar to that of the
484 J INTELLEC PROP RIGHTS, SEPTEMBER 2007

plaintiffs. The Court noted that an alternate title The Court held that no doubt Section 52(1)(j)
should be given with a declaration in sufficiently bold permits the version recording but it had to be read in
letters that the record is not the original sound track harmony with the provisions conferring exclusive
but only a version record with voices of different rights over the original copyright owners. The Court
artists. The Court specifically held that the words held that the version recording cannot be considered
stating that the second work is not an original work as an infringement of the copyright within the
should be clearly underlined so that the buyer notices meaning of Section 51 as the singers are different.
it and there is no confusion. However, the fact that the plaintiffs had returned the
This case was followed by a similar case in the cheque and given clear instructions that it did not
Delhi High Court, Gramophone Company of India permit the version recording, gave the plaintiffs the
Ltd v Super Cassette Industries Ltd.35 In this case; the right to seek an injunction restraining the defendants
plaintiff was the owner of a copyright in the sound from any further sound recordings which would
recordings embodied in an audio cassette. It was also infringe the copyrights of the plaintiffs. The Court
the owner of the copyright in lyrics embodied in the held in favour of the plaintiffs as on the facts it was
sound recording and had also designed a unique inlay clear that the plaintiff would suffer irreparable injury
card with distinctive design, colour combination, lay- if the injunction was not granted. The Court thus,
out and get up for the said audio cassette which gave necessary directions to restrain the defendants
constituted as an artistic work under provisions of the from issuing any sound recording of the audio
Copyright Act. The inlay card contained along with cassettes which would infringe the rights of the
the photo of Lord Ganesha, the photos of Lata plaintiff.
Mangeshkar and Usha Mangeshkar. In 2001, in the case of Gramophone Co of India
The defendants later launched an audio cassette in the Ltd v Mars Recording Pvt Ltd,36 Supreme Court
market with the title ‘Ganpati Aarti Ashtvinayak Geete’ discussed various issues underlying the concept of
which was identical to plaintiff’s audio cassette. The version recording. The respondent had allegedly taken
design, the colour scheme, the get up and the layout of away the right of copying which the appellants had
the defendant’s audio cassette was deceptively similar to sought from them. It was related to the three titles
that of the plaintiff. Further the songs also were in an called ‘kallusakkare kolliro’, ‘maduve maduve
identical sequence as that of the plaintiffs. However, the maduve’ and ‘chinnada hadugalu’. The Trial Court
singer in the defendant’s audio cassette was Anuradha had granted an injunction in favour of the original
Podwal. The plaintiffs filed a suit against the defendants copyright owner which was again reiterated by the
on the grounds that the defendants were passing off their High Court and the Supreme Court. Even though the
goods as that of the goods of the plaintiff and sought an facts were simple and the judgement not too technical,
action for restraining the defendants from issuing its arguments on behalf of the respondents were quite
sound recordings and from using the inlay card that was convincing and further elaborated on this entire issue.
deceptively and confusingly similar to the inlay cards It was argued whether an entity which makes ‘version
used by the plaintiff and from packing or using the recording’ or ‘cover versions’ of an earlier sound
labels which would infringe the copyrights of the recording’ required the consent of the owner of the
plaintiff. copyright. The answer was traced in the interpretation
The defendants interestingly did not deny the of Sections 2(m)(iii) and 52(1)(j) of the Act. ‘Cover
plaintiffs title to the original works. However, they versions’ or ‘version recordings’ are fresh recordings
contended that they had sent necessary information to made using a new set of musicians.
the plaintiffs that they were using the original works for It was again argued that there was a clear
recording the songs to be rendered by another singer and distinction between voluntary licenses and non-
had also enclosed a cheque for Rs 2,230 by way of voluntary licenses. While Section 30 of the Act refers
royalty to make 5000 cassettes. They claimed that they to voluntary licenses, in which case the consent of the
were entitled to indulge in version recording under party is required. As opposed to this, there are two
Section 52(1)(j) after payment of the necessary fees to types of non-voluntary licenses, namely, compulsory
the plaintiffs. It transpired that the plaintiffs returned the license as dealt in Sections 31 and 31A of the Act and
cheque and they had informed the defendants not to statutory license as dealt in Section 52(1)(j) of the
make version recording of their songs. Act. The only ingredients to be satisfied to attract
 VIBHAW & VENKATARAMAN: RECORDING THAT DIFFERENT VERSION – AN INDIAN RAGA 485

Section 52(1)(j) of the Act as was convincingly words ‘a change of the singer in a vocal rendering is a
argued was that there should be a literary, dramatic or change in the most vital constituent of a recorded
musical work from which a person desires to make song.’37 This interpretation suggests that Courts will
sound recordings, sound recordings in respect of such construe the permissible alterations and omissions to
works have been previously made with the consent of the original sound recording narrowly and if there is a
the copyright owner and that the person making such substantial change in the ‘new’ arrangement, it will
sound recordings has given a prescribed notice and amount to infringement. It is uncertain as to what
paid the prescribed royalty at the rate fixed by the constitutes ‘substantial change’, and the Court
Copyright Board. suggests that the question was whether from the prism
The first condition of Section 52(1)(j) of the Act is of the original copyright owner, the change was
that it must be 'with the consent of the owner' whereas substantial or not.37 It follows then, that under this
the owner's consent is not a pre-requisite for the sound open textured standard, remixes may in most cases
recording. Moreover, a combined reading of clause fall outside the purview of Section 52(1)(j) as they
(iii) of the proviso to Section 52(1)(j) with Section involve substantial alterations to the music as well as
52(1)(j)(i) of the Act, makes it clear that the consent substitution of singers.
requirement is only for the first recording. He The principle being laid down was that copying
submitted that a statutory license of the nature from an already copied work would not be an
contemplated under Section 52(1)(j) of the Act is infringement. The Court held that Section 52(1)(j)
considered to be in public interest and is recognized in was not independent of prohibition imposed under
most of the countries in the world and is resorted to as Section 13(3)(b) and hence, anyone whose version
the appropriate from the licensing. Hence, it was recording violates mandate of Section 13(3)(b) cannot
finally held that where the respondent or any party as secure a mandate in his or her favour. Therefore,
such had not violated the requirements of Section where no license has been granted by the original
52(1)(j) of the Act and Rule 21 of the Rules, it has not copyright owner and the only claim forwarded is
violated the literary and musical works embodied in under Section 52(I)(j), it cannot ipso facto confer any
the sound recordings. right entitling such a person (plaintiff in this case) for
The most recent decision on version recording is independent protection for its musical works. The
the case of Super Cassette Industries Limited v Bathla Court stated that a version recording which involved
Cassette Industries Pvt Limited.37 The plaintiff moved substitution of another singer in place of the original
an application for injunction alleging that the singer would constitute a substantial change and
defendant had infringed the plaintiff’s sound protection of Section 52(1)(j) cannot be availed of.
recording which itself was a version recording of an This interpretation may lead to copies of the original
original musical soundtrack of song ‘Chalo Dildar sound recording being made, with minor and
Chalo’ from the film ‘Pakeezah’ with minor and insignificant variations.
insignificant variations. The Court held that, a version
recording made under Section 52(1)(j) is incapable of Conclusion and Proposed Amendments to the Act
acquiring any independent right as the recording itself Section 52(1)(j) although achieved the purpose of
is an adaptation of an original recording and hence de-monopolizing the music industry,38 it has not
lacks the essential pre-requisite for asserting succeeded in striking a balance, as copyright owners’
copyright, namely, that of originality. The Court also are unjustly deprived of their right to recoup their
observed that the plaintiff had in its sound recording, investment. The losses suffered by the industry owing
made substantial changes to the original soundtrack to piracy are staggering39 and this coupled with
and hence, the proviso to Section 52(1)(j) was also illusory amounts of royalty that are paid, defeat the
not satisfied which postulated that only such object of conferring exclusive rights on the copyright
alterations or omissions are permissible which are owner and dilutes the 60 year protection that is
reasonably necessary for making adaptations of the conferred. A perusal of the case law, itself bolsters
recording. The Court opined that as the plaintiff had this fact, as royalty amounts paid have ranged from as
changed the singer, it tantamounted to a substantial low as Rs 400 to Rs 2,230. The royalty currently paid
change which was clearly impermissible according to ranges from 3-5% of the retail price of a cassette
the proviso to Section 52(1)(j) as ,in the Court’s which is abysmal compared to the 25-30% that is
486 J INTELLEC PROP RIGHTS, SEPTEMBER 2007

demanded in the US, where version recording is 52(1)(j), can hardly be underestimated as big
legal.9At such rates, it is hardly surprising that we find recording companies like Saregama and Sony Music,
dubious remixes flooding the market. which are the copyright owners of many original
Section 52(1)(j) can hardly be justified from the recordings have now joined the remix bandwagon at
legal standpoint, under the doctrine of fair use, which is the cost of creativity.9 This disconcerting trend
a well established doctrine in copyright law. Fair use is indicates that Section 52(1)(j) discouraged creativity
usually not allowed as a defence to infringement, and legitimized copying, a trend which must be
where the defendant intends to commercially exploit reversed by making suitable changes to the existing
the plaintiff’s work. Even under the modified standard legal framework.
laid down by the US Supreme Court in Cambell v In this context, the proposed amendments to the
Acuff Rose, where commercial motives of the Act,40 by the Registrar of Copyrights, Copyright
defendant must be balanced with the extent to which Division of the Department of Secondary & Higher
the work is transformative i.e. more transformative the Education under the Ministry of Human Resources
work, factors like commercialism become insignificant, Development are significant. The amendments in the
Section 52(1)(j) fails to pass the litmus test. The reason form of Section 52(1)(j)(vi) extend the restriction
being, according to the interpretation given by the from the existing three years to five years. Section
Delhi High Court in Super Cassettes v Bathla 52(1)(j)(vii) of the amendment also provides that a
Industries, if there is a substantial change made in the minimum royalty of 50,000 copies has to be paid to
original sound recording, the proviso to Section the owner for such version recording, annually,
52(1)(j) requiring only such alterations to be made regardless of the number of copies made or sold.
which are reasonably necessary for purposes of the Alternative Law Forum has criticized these
sound recording would not be satisfied and hence, there amendments, in particular, the requirement that
would be infringement. Consequently, if the work is royalty must be paid for 50,000 copies, by noting that
transformative i.e. it is altered with new meaning and it would not be feasible for small music companies to
expression, the protection afforded by Section 52(1)(j) make version recordings in marginalized languages. It
ceases to apply. Thus, Section 52(1)(j) cannot be is submitted that while this requirement may be quite
justified under the doctrine of fair use, assuming that drastic, it has to be acknowledged that the royalty
principles evolved by US Courts are applicable in currently paid is abysmal. It is also unclear, as to how
India, as there is little judicial exposition in Indian this might adversely affect creation of songs in
cases on this point. marginalized dialects and languages as the proviso
The paradoxical result is that, Section 52(1)(j) incorporates a safeguard that empowers the Copyright
prevents owners of original sound recordings from Board to fix a royalty lower than the stipulated
recouping their investment and also stifles creativity minimum with regard to the extent of circulation of
by legitimizing copying of songs with insignificant the recording in that language and dialect.
variations. It also throws into serious question, The amendment also significantly, proposes to
whether this provision satisfies the three step test for extend the time period for making a version recording
permitted exceptions laid down at the Berne from two to five years, which would undoubtedly
Convention as well as the TRIPS (Trade-Related hamper version recording entities from capitalizing on
Aspects of Intellectual Property Rights) Agreement. the success of the original recording. It may have an
Article 13 of the TRIPS Agreement provides that adverse impact on the remix market, but the provision
states shall be permitted to place limitations on or may be necessary in order to promote creativity, a
create exceptions to exclusive rights provided they are virtue which seems to have taken a backseat in the
confined to certain special cases and do not conflict music industry.
with a normal exploitation of the work and do not
unreasonably prejudice the legitimate interests of the References
right holder. 1 Chinnappa Reddy J in Gramophone Co v Birender Bahadur
The object of copyright law is to strike a balance Pandey, AIR 1984 SC 667 at p. 676.
2 Section 13 of the Copyright Act, 1957.
between the need to encourage creativity while at the 3 R G Anand v Delux Films, AIR 1978 SC 1613; Eastern Book
same time promote dissemination of information. The Co v Navin J Desai & Another, D B Modak and Another,
adverse consequences of provision like Section MANU/DE/0066/2001; Walter v Lane, 1900 AC 539 HL.
 VIBHAW & VENKATARAMAN: RECORDING THAT DIFFERENT VERSION – AN INDIAN RAGA 487

4 C Cunniah & Co v Batra & Co; AIR 1961 Mad 111. 23 Luther R Campbell aka Luke Skyywalker, et al,
5 LB (Plastics) v Swish Products [1979] RPC 551 at p. 568. Petitioners v Acuff-Rose Music Incorporated, 510 US
6 Copyright protects a vast array of everyday items including 569; 114 S Ct 1164.
for example, on the private level, letters, photographs and 24 Gramophone Co of India Ltd v Super Cassette Industries
hence videos and in business all manners of advertisements Ltd, MANU/DE/0696/1995, para 1, 5.
brochures, designs, documents, graphics, manuals and 25 Copyright (Amendment) Act, 1983.
reports published or used by every firm in the country. 26 Chatterjee Uday, Mixed tunes, www.domain-b.com
7 Copinger and Skone James, Copyright, 14th edn, 1999, para (14 July 2007).
1.02. 27 Damien O'Brien and Brian Fitzgerald, Mashups, remixes and
8 Section 14 of the Copyright Act, 1957. copyright law, Internet Law Bulletin, 9 (2) (2006) p.19.
9 Noronha Frederick, Let the music play - Stop legal changes, 28 Super Cassette Industries Limited v Bathla Cassette
www.indiaenews.com (10 July 2007). Industries Pvt Limited, 2003 (27) PTC 280 (Del).
10 Narayan P, Copyright and Industrial Designs, 3rd edn 29 Rajlakshmi v Nesargi, Copyright and copyculture in indian
(Eastern Law House, New Delhi), 2002, p. 52. music, 5 February 2005, EPW Commentary, www.epw.org.in
11 For example, an orchestral work arranged for piano, or (10 July 2007).
conversely a song written with piano accompaniment 30 Mars Recording v The Gramophone Company of India,
orchestrated for voice and orchestra. In popular music there are decided on 28 February 2004 at the VIII Additional City
many arrangements or original songs made to suit a particular Civil Judge (CCH 15) (unreported).
performer or a particular language version of the text. 31 Sen Soumik, Remix & match, www.rediff.com
12 Section 2(a)(iv) of the Copyright Act, 1957. (12 July 2007).
13 Cornish W R, Intellectual Property, 3rd edn (Universal Law 32 Chawla Alka, Copyright & Related rights: National &
Publishing Co, New Delhi), 2001, p. 337. International Perspectives (Macmillan Publishers, Delhi),
14 Cornish & Llewelyn, Intellectual Property, 5th edn 2007, p. 64.
(Thomson Sweet & Maxwell), 2003, p. 394. 33 Alternative Law Forum, Response to the Proposed
15 Section 2(d)(ii) of the Copyright Act, 1957. Amendments to the Copyright Act, 1957, www.altlawforum.
16 Section 2(ffa) of the Copyright Act, 1957. org (5 July 2007).
17 Rule 21 of the Indian Copyright Rules, 1958 lays down the 34 1996 PTC (16) 252 Del.
procedure for making sound recordings. 35 1999 PTC (19) 2 Del.
18 Darryle Neudorf v Nettwerk Productions Ltd, [2000] RPC 36 AIR 2001 SC 2885.
935 (Supreme Court of British Columbia). 37 2003 (27) PTC 280 (Del).
19 Redwood Music v Chappell, [1982] RPC 109 at p. 119. 38 The market share of HMV in the 1980s fell from 90 to 40 %,
20 Stewart M Stephen, International Copyright and Gramophone Co of India Ltd v Super Cassette Industries
Neighbouring Rights, 2nd edn (Butterworths, London), 1989, Ltd, MANU/DE/0696/1995 para 1.
p. 51. 39 The cassette industry had been virtually ‘wiped out’ by piracy
21 New Webster’s Collegiate Dictionary, 1st edn (Surjeet and that the widespread sale of pirated MP3s and the availability
Publications, New Delhi), 1979. of pirate VCDs were causing significant losses to the industry,
22 [1867] LR 2 QB 340; [1868] LR 3 QB 233; The case has Lazarus V J, Special Report, International Intellectual Property
also been referred to in the case of Redwood Music v Alliance (2005), www.iipa.com (14 July 2007).
Chappell, [1982] RPC 109 at p. 116. 40 www.copyright.gov.in (10 July 2007).