Transcript Statutory Licence - Jagdish Sagar

“Cover Versions”
The Statutory Licence
Under the Copyright Act, 1957
Jagdish Sagar, Cochin, May 2009
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).
2
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.
3
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.
4
Works and Rights
Sound Recording 1 Sound Recording2
Producer
Composer
Neighbouring Right
Music
(Copyright)
Public Performance/
Communication to the
Public
Neighbouring Right
Lyrics
(Copyright)
Lyricist
Copies
5
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. 7
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?
8
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).
9
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 plaintiff 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 ...”
10
Super Cassettes Industries Ltd v Bathla Cassette
Industries Pvt. Ltd. (Continued)
“… Even proceeding on the assumption that Section 52(1)(j) was
complied byand was available to the plaintiff, such a recording is at the
highest entitled to protection against an action by the original owner
averring copyright infringement. Such a version recording produced
under Section 52(1)(j) cannot in any event acquire independent rights
capable of assertion against other alleged infringers.”
11
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.
12
... 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).
13
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.
14
Paradigm A: Distinction between rights is built into
the industry structure.
Songwriter
Composer
Music Publisher
Right
1
Right
2
Right
3
Right
4
Right
5 etc.
15
Paradigm B: Industry structure makes the
distinction between rights seem irrelevant.
Performer Composer Lyricist
Film Producer
All others engaged by film
producer
Record
Company
16
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.
17
Recorded versions of GershwinХs
ТSummertimeУ
Luis Arcaraz (released by RCA Victor Records as catal og number
20-4416, with the flip side "It's the Talk of the Town"[2])
Art Blake y - A Jazz Messag e (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 albu m Free Yourself
Bing Crosb y & Ma tty Malnec k (original ly recorded July 8, 1938 and
released b y Decca Record s as catalog number 2147B, with the
flip side " You Must Have Been a Beaut iful Baby"[4]; re-release d
in 1947 b y Decca Records as catalog number 24542, with the
flip side " Love Walked in"[5])
Bob Crosb y & his Orchestra (recorded October 21 , 1938, released
by Decca Reco rds as catal og number 2205B, with the flip side
"I'm Free (What's New?)"[4])
18
(What's New?)" [4])
More...
Deep Di ve Corp. on their EP Summertime, 2000.
Tal Farlo w on his 1969 albu m The Return of Tal Farlo w (Prestige
Records ).
Frances Fa ye (recorded about 1954 ,released by Capitol Records as
catalog nu mber 2842, with the flip side "Mad about the Bo y"[6])
Peter Gabriel on the albu m The Glory Of Gershwin , produced by
George Martin, 1 994
Al Gallodoro (recorded in 1951, releas ed by Colu mbia Records as
catalog nu mber 39472, with the flip side "Hora Staccato" [7])
Wayne Hancock on his albu m Thunde rstorms and Neon Signs
Richard Ha yes (with the Eddi e Sauter orchestra) (relea sed by
Mercur y Recor ds as catalo g number 5833, with the flip side
"Junco Partner ( A Worthless Cajun)" [8])
Billie Holida y (recorded July 10, 1936 , released by Columbia
Records as cata log number 37496, with the flip side "Billie's
Blues" [9])
Anne Jamison (recorded July 14, 1939 , relea sed b y Decca Record s
as catalog nu mber 2876 A, with the flip side "Looking for a
Boy"[10])
19
[10])
More
Janis Joplin released this song with Big Brother and the Hold ing
Compa ny. Some live vers ions have errone ously been credited
with having Jimi Hendrix guesting on guitar, though in actuality
the guitarists wer e James Gurley and Sam Andrew. [11]
Sammy Kaye 's Orchestra (released by RCA Victor Records as
catalog number 20 -2390, w ith the flip side "June Is Busting Out
All Over "[12])
AngЋlique Kidjo, released on Keep on Moving: The Best of AngЋlique
Kidjo (2003)
Jerry Kruger and her Orchestra (recorded April 25, 1939 , released by
Vocalion Record s as cata log number 4927, with the flip side
"Ra in, Ra in Go Away" [13])
Guy Lombardo and his Roy al Canadians (recorded Nove mber 10,
1937 , released by Victor Re cords as catalog number 25716, with
the flip side "I'll See You in My Dreams"[14])
Yehudi Menuhin and StЋphane Grapp elli - Menuh in and Grappell i Play
Gershwin, (1988)
Joni Mitchell & He rbie Ha ncock on a Ger shwin's 100t h anniversary
birthday tribute alb um Gers hwin's World .
Charlie Parker String Ensemble (recorded Novemb er 30, 1949,
released by Mer cury Records as catalog number 11038, with the
flip side "I Didn't Know What Time It Was"[15])
20
More
Jane Pickens (recorded June 19 , 1940 , released by Columbia
Records as cata log number 35580, with the flip side "Neg ro
Spirituals" [16])
Courtney Pine on the album The Glory Of Gershwin, produced by
George Mart in, 1994
Boyd Raeb urn and his Orc hestra (releas ed by Guild Reco rds as
catalog number 111, with the flip side "Ma rch of the #oyds"[17])
Red Sa unders and his Orc hestra (recorded December 31 , 1953 ,
released by Blue Lake Reco rds as cata log n umber 101, with the
flip side "River boat" [18])
Charlie Spivak and his Orc hestra (recorded December 19 , 1944 ,
released by RCA Victor Reco rds as cata log number RCA2 01500,
with the flip side "I Got P lenty of Not hin'"[19])
Bill y Stewart , 1966, released as a single.
Te n Years After on their album Undead , 1968.
Sarah Vaughan (recorded in December, 1949 , released by Columb ia
Records as cata log number 38701, with the flip side "I'm Crazy to
Love You"[20])
Gordo n MacRae (Recorded 1959) from the album "Fasc inatin'
Rhythm: Capitol Sings Geor ge Gers hwin."
The Zomb ies on their 1965 debut album, Begin Here
The Doors on their li ve album, Friday April 10 at Bosto n Arena
Sublime on their album "Doi n' Time"
21