“Cover Versions”

The Statutory Licence

Under the Copyright Act, 1957

Jagdish Sagar, Cochin, May 2009

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Summary

• Section 52(1)(j) has been the subject of repeated erroneous judgments.

(a) Failure to understand difference between, and co-existence of, different rights in sound recordings and underlying musical and literary works.

(b) Unawareness of rationale for cover versions.

• Industry structure does (did?) not require (a) or (b).

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Musical work

• Consists of music.• Not necessarily recorded.• Any number of performances/performers.• Performer/ composer different roles.• Reproduction = “sound alike”, not

necessarily exact.• Any number of sound recording possible:

even of same performance.

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Sound Recordings

• Each sound recording is distinct; a copy of one sound recording is not a copy of another.

• Numerous different sound recordings, even of same work, are possible.

• Producer of sound recording not composer.• A new sound recording embodying the old

one is the only possible kind of copy.• A “sound alike” is not a copy of the sound

recording.

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Works and Rights

Sound Recording 1Neighbouring RightProducer

Composer

Sound Recording2Neighbouring Right

Music(Copyright)

Lyrics(Copyright)

Public Performance/Communication to the Public

Copies

Lyricist

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The Statutory Licence figures in the list of exceptions contained in Section 52, as Section

52(1)(j)

(j) The making of sound recordings in respect of any literary, dramatic or musical work, if-

(i) sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work;

sound recordings= the sound recordings made under the statutory licence, subject of the clause. sound recordings= any sound recordings: to refer to “sound recordings” it would have to be preceded by “the” or “such” etc -- and the sub-clause would then be redundant!

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The second condition(ii) 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:

•If (i) & (ii) are read disjunctively, and the absence of “the” in (i) ignored, then the statutory licence applies to any literary, dramatic or musical work: unreasonable (+ unsustainable in light of Berne 9(2) & TRIPS 13).

•Therefore no meaning can be attached to the (inexplicable) omission of “and” between (i) and (ii) by 1994 Amendments.

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Safeguards in the Provisos

• Have not, generally, been availed of.• Proposed to be strengthened by further

amendments.• The safeguards aim to address the concern

(by no means unfounded) that full royalties will not be honestly paid.

• Would claiming their protection be seen as accepting the principle of cover versions?

• Or is it apprehended that attempts to enforce the safeguards will prove ineffective?

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Gramophone Co. of India v Super Cassettes Industries Ltd. 1999 PTC 2 (Del)

• Court could not accept notion of statutory licence: dismissed it out of hand.

• Idea of statutory licence taken to imply termination of copyright in music/ words on allowing a sound recording to be made of them.

• Defendants (makers of cover version) themselves confused performer with author (hence, presented different performances as different works).

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Super Cassettes Industries Ltd v Bathla Cassette Industries Pvt. Ltd. (27) PTC 280 (Del.)

“The primary alteration in the present case comprised of a singer different from the original singer. A different orchestra is also involved… In my view while the sound recording of the pla intiff may sound similar to the original version and the difference may appear insignificant and indeed negligible to the lay public, nevertheless to the owner of copyright such alteration is of vital significance ...”

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Super Cassettes Industries Ltd v Bathla Cassette Industries Pvt. Ltd. (Continued)

“… Even proceeding on the assumption that Section 52(1)(j) was complied by and was available to the plaintiff, such a recording is at the highest entitled to protec tion against an action by the original owner averring copyright infringement. Such a version recording produce d under Section 52(1)(j) cannot in any event acquire independent rights capable of assertion against other alleged infringers.”

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Comments:

• First gives the performer effectively an inalienable copyright in the underlying work: no one else could ever record it.

• Then goes on to gives the first sound recording producer an overriding right, allowing him nevertheless an exclusive right to permit recordings by other performers.

• Deprives composer and lyricist of all rights.

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... Continued

• Seems to give the first sound recordings producer moral rights in the underlying musical and literary works.

• Seems to make it impossible for another composer to compose different music for the same words.

• Abolishes rights in a sound recording per se.

• Completely takes away 52(1)(j) (unless, possibly, the new recording is performed by the original performers).

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Gramophone Co. of India Ltd. v Mars Recording Pvt. Ltd. & Ors. (Karnataka High Court)

• 52(1)(j)(i)&(ii) should be read disjunctively in view of the omission of “and” between them.

• 52(1)(j)(i) means only that one can make cover versions with the permission of the owner (reading a definite article before the words “sound recordings”).– Makes (i) otiose;

– Makes (ii) applicable even to musical works of which sound recordings have not hitherto been made.

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Paradigm A: Distinction between rights is built into the industry structure.

Composer Songwriter

Music Publisher

Right 2

Right 3

Right 4

Right 5 etc.

Right 1

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Paradigm B: Industry structure makes the distinction between rights seem irrelevant.

Performer Composer Lyricist All others engaged by film producer

Film ProducerRecord

Company

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Paradigm B

• In Paradigm B, the owner of copyright in the song (music and words) has no strong interest in allowing cover versions:– More concerned with the negative implications

for sale of his sound recordings; and– With the risk of underpayment (justified in

Indian conditions.

• Little conception that different works (and rights are involved:– Song identified by film/scene and performer.

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Recorded versions of Gershwin’s “Summertime”

Luis Arcaraz (released by RCA Victor Records as catalog number

20-4416, with the flip side "It's the Talk of the Town"[2])

Art Blakey - A Jazz Message (1963)

Charlotte Church on her self-titled album

John Coltrane - My Favorite Things (1960)

Perry Como (released by RCA Victor Records as catalog number

20-4530, with the flip side "While We're Young"[3])

Fantasia Barrino on her debut album Free Yourself

Bing Crosby & Matty Malneck (originally recorded July 8, 1938 and

released by Decca Records as catalog number 2147B, with the

flip side "You Must Have Been a Beautiful Baby"[4]; re-released

in 1947 by Decca Records as catalog number 24542, with the

flip side "Love Walked in"[5])

Bob Crosby & his Orchestra (recorded October 21, 1938, released

by Decca Records as catalog number 2205B, with the flip side

"I'm Free (What's New?)"[4])

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More... (What's New?)"[4])

Deep Dive Corp. on their EP Summertime, 2000.

Tal Farlow on his 1969 album The Return of Tal Farlow (Prestige

Records).

Frances Faye (recorded about 1954,released by Capitol Records as

catalog number 2842, with the flip side "Mad about the Boy"[6])

Peter Gabriel on the album The Glory Of Gershwin, produced by

George Martin, 1994

Al Gallodoro (recorded in 1951, released by Columbia Records as

catalog number 39472, with the flip side "Hora Staccato"[7])

Wayne Hancock on his album Thunderstorms and Neon Signs

Richard Hayes (with the Eddie Sauter orchestra) (released by

Mercury Records as catalog number 5833, with the flip side

"Junco Partner (A Worthless Cajun)"[8])

Billie Holiday (recorded July 10, 1936, released by Columbia

Records as catalog number 37496, with the flip side "Billie's

Blues"[9])

Anne Jamison (recorded July 14, 1939, released by Decca Records

as catalog number 2876A, with the flip side "Looking for a

Boy"[10])

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More [10])

Janis Joplin released this song with Big Brother and the Holding

Company. Some live versions have erroneously been credited

with having Jimi Hendrix guesting on guitar, though in actuality

the guitarists were James Gurley and Sam Andrew. [11]

Sammy Kaye's Orchestra (released by RCA Victor Records as

catalog number 20-2390, with the flip side "June Is Busting Out

All Over"[12])

Angélique Kidjo, released on Keep on Moving: The Best of Angélique

Kidjo (2003)

Jerry Kruger and her Orchestra (recorded April 25, 1939, released by

Vocalion Records as catalog number 4927, with the flip side

"Rain, Rain Go Away" [13])

Guy Lombardo and his Royal Canadians (recorded November 10,

1937, released by Victor Records as catalog number 25716, with

the flip side "I'll See You in My Dreams"[14])

Yehudi Menuhin and Stéphane Grappelli- Menuhin and Grappelli Play

Gershwin, (1988)

Joni Mitchell & Herbie Hancock on a Gershwin's 100th anniversary

birthday tribute album Gershwin's World.

Charlie Parker String Ensemble (recorded November 30, 1949,

released by Mercury Records as catalog number 11038, with the

flip side "I Didn't Know What Time It Was"[15])

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More

Jane Pickens (recorded June 19, 1940, released by Columbia

Records as catalog number 35580, with the flip side "Negro

Spirituals"[16])

Courtney Pine on the album The Glory Of Gershwin, produced by

George Martin, 1994

Boyd Raeburn and his Orchestra (released by Guild Records as

catalog number 111, with the flip side "March of the #oyds"[17])

Red Saunders and his Orchestra (recorded December 31, 1953,

released by Blue Lake Records as catalog number 101, with the

flip side "Riverboat"[18])

Charlie Spivak and his Orchestra (recorded December 19, 1944,

released by RCA Victor Records as catalog number RCA201500,

with the flip side "I Got Plenty of Nothin'"[19])

Billy Stewart, 1966, released as a single.

Ten Years After on their album Undead, 1968.

Sarah Vaughan (recorded in December, 1949, released by Columbia

Records as catalog number 38701, with the flip side "I'm Crazy to

Love You"[20])

Gordon MacRae (Recorded 1959) from the album "Fascinatin'

Rhythm: Capitol Sings George Gershwin."

The Zombies on their 1965 debut album, Begin Here

The Doors on their live album, Friday April 10 at Boston Arena

Sublime on their album "Doin' Time"