YouTube is filled with videos of people (budding artists!) singing songs of their favourite artists in their own style and giving it their personal touch or artists who are remixing songs. In the first scenario, it would be a most likely be cover version of the original song since the singer is retaining the lyrics and the musical arrangement but singing it in his own style. However, in the case of remixes, the artist is changing the musical arrangement by adding beats, lyrics and a few notes, may be. Would this amount to copyright infringement if done without the consent of the original artist?
Cover Versions – Copyright in India
The amendment of 2012, brought about a number of changes in respect of rights of music directors, lyricists, and performers. Section 31C deals with statutory licenses that may be obtained for making cover version of a sound recording in respect of a literary, dramatic or musical work. A statutory license is one which is governed by the provisions of this Act, whereas a general license can be on the terms and conditions as agreed upon between the licensor and licensee.
The highlights of this provision are as follows:
- A cover version cannot be made until the expiration of 5 years from the end of that calendar year when the original sound recording was made
- The cover version has to be in the same medium as the original one, unless that medium is no longer in commercial use
- Prior consent of the owner of the original sound recording has to be obtained
- Copies of the covers/labels have to be disclosed to the owner of the sound recording prior to release of the cover version
- The royalties to be paid to the owner are fixed by the Copyright Board. One royalty is fixed for every calendar year for a minimum of 50000 copies and additional royalties payable are also fixed
- The Copyright Board may fixer a lower rate of royalty for works based on the potential circulation for that language or dialect
- The cover version should explicitly mention that it is a cover version of the original sound recording
- There should be no alteration of the sound record unless that which is technically necessary
- The author of the cover version is required to maintain books of accounts, which may be inspected by the owner of the original sound recording
However, these rules are specifically with reference to statutory licenses under the Act. Authors are still free to directly approach owners of the original work to obtain licenses and agree on terms and conditions suitable to both the parties. For instance, if an artist wants to make a cover version before the expiry of 5 years of the original work or wants to negotiate on the point of royalty, the only option would be to obtain a general license.
If such cover versions are made without the consent of the owner of the original work, it most certainly will amount to copyright infringement. Additionally, the owner can also file a suit for infringement of moral rights on grounds of distortion, mutilation or modification of the original work.
Remix – Copyright in India
When a sound recording is mixed and some or more elements are re-recorded in a different way it becomes a remix of the original sound recording. So will this work constitute a new sound recording (a new work of copyright) or a modification of the original work? Even though the new sound recording is substantially different from the original work, it will still amount to adaptation of the original work. Therefore, the author of the remix is required to obtain a license from the owner of the original sound recording. There is no specific provision under the Act that provides for licenses for remix, like it does for cover versions, however there is a general provision in the Act with respect to licenses.
With the rampant increase in the number of remixes, artists of the original works have become more and more aware of their right and are going out of the way to enforce them. Most of the music composers, lyricists and singers are members of copyright societies and it is not difficult to obtain licenses from these societies.
We read about copyright issues in the newspapers almost on a daily basis and as a lawyer, it is rather heart-warming to know that copyright owners are doing all that they can to protect their rights. So if you’re DJ-ing at a club or creating a remix album or making cover versions, the first step is to get a license!
This article has been authored by Nikita, an IP Law practitioner.
Editorial Staff
Editorial Staff at Selvam and Selvam is a team of Lawyers, Interns and Staff with expertise in Intellectual Property Rights led by Raja Selvam.
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