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The Issue of Infringement of Copyright at a glance

(Entertainment Industry)

The issue of infringement of Copyright in musical works is of immense importance to the Entertainment Industry. Quite often disputes arise between the parties concerning the use of musical works in the sound recording regardless of the medium on which such recording is made or the inclusion of sound recordings as part of the cinematographic film.

The Copyright Act, 1957 affords statutory recognition to the rights of the author to claim Copyright in the original musical work. The Act also provides for remedies if a third party without his consent infringes any of the rights of the owner of Copyright. The author of an original work is recognized as the deemed first owner of Copyright. The ownership of Copyright may, however, change on account of either the work having been created by the author during the course of his employment under a contract of service or by way of an assignment in writing.

Section 16 of the Copyright Act prescribes that no person shall be entitled to Copyright otherwise than under and in accordance of the provisions of the said Act or of any other law for the time being in force. This would imply that any person who claims Copyright in any work and seek enforcement thereof must establish his rights under and in accordance with the provisions of The Copyright Act.

The law recognizes the subsistence of Copyright in original musical work and also in the sound recordings if in the making of the sound recording, Copyright in some existing work has not been infringed. The Copyright in a cinematographic film or a sound recording does not affect the separate Copyright in any work in respect of which or a substantial part of which the film or the sound recording is made.

The owner of Copyright in a musical work enjoy an exclusive right to reproduce the work in any material form, issue copies of the work to the public, perform the work in public, to make any cinematographic film or sound recording in respect thereof. The owner of Copyright in a sound recording has an exclusive right to make any other sound recording embodying it, to sell or give on hire any copy of such recording or communicate the same to the public.

The explanation to Section 51 of The Copyright Act provides that reproduction of a musical work in the form of a cinematographic film shall be an infringement.

There can be no Copyright in an idea, subject matter, theme and plot or historical or legendry fact and violation of the Copyright in such cases is confined to the form, manner, arrangement and expression of the idea by the author of the copyrighted work, Where the same idea is being developed in a different manner from the same source, similarities are bound to occur. The Courts while determining the similarities of such works look at the fundamental and substantial aspects of the mode of expression adopted in the copyrighted work. If the Defendant’s work is nothing but literal imitation of the copyrighted work with some variations here and there, it would amount to violation of Copyright. In order to be actionable, the copy must be a substantial and material one which at once leads to the conclusion that the Defendant is guilty of the act of piracy. One of the surest and the safest test to determine whether or not there has been a violation of Copyright is to see if the reader, spectator or the viewer after having read or seen or heard both the work is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

Section 52 (1)(j) is an exception to the general law of infringement of Copyright in a musical work or sound recording. If a sound recording is made by a person in respect of any musical work after having given notice of his intention to make the sound recordings to the owner of Copyright and having paid the royalty in respect of such sound recordings to be made by him as per the rate fixed by the Copyright Board and complies with other requirements of law, he does not commit an act of infringement of Copyright in the musical work.

The issue as to whether a separate Copyright would subsist in the musical work or sound recording made by invoking the provisions of Section 52(1)(j) of the Act irrespective of the subsequent person having spent independent skill and labour for the creation of such work, came up for in depth consideration before the Hon'ble High Court of Delhi way back in the year 2003. Taking note of the relevant provisions of The Copyright Act, Justice Mukul Mudgal of the Delhi High Court laid down the law on the subject. The Court held that Section 52(1)(j) can not be independent of the prohibition imposed under Section 13(3)(b) of the Act which provides that Copyright shall not subsist in any sound recording or musical work if in the making thereof, Copyright in such work has been infringed. The Court also held that no Copyright could be claimed in the version recording of a musical work by rejecting the claim of the Plaintiff for the grant of injunction restraining the Defendant from reproducing the version recording of the Plaintiff. The Court emphasized the need as well as requirement of the law to establish originality of the work for claiming protection of Copyright and enforcement thereof.

It was held that the statutory defence conferred by Section 52 cannot be so construed so as to confer the status of original work to the “version recording”. The Court also held that a person himself being a plagiarist, though claiming the protection of Section 52(1)(j) cannot prevent anyone else from plagiarizing its work. In other words, a person cannot use Section 52(1)(j) to derive benefit from a product of another person and yet ride a high morale horse when the same method is adopted in respect of his own product. The case alleging plagiarism on the basis of plagiarized work was out rightly rejected.

Version recordings would really be such sound recordings where while being inspired by the original melody a distinct interpretation, different both in presentation, rhythm and orchestral arrangement emerges. For example the famous hits of the pop-group Beatles have been rendered by the Royal Philharmonic Orchestra under the title ‘Symphonic Beatles’. The title of the ‘Symphonic Beatles” sound recording clearly states as under:-

                      “Symphonic Beatles’
                      Classic Instrumental Interpretation from
                      The Royal Philharmonic Orchestra
                      conducted by Louis Clark.”

This sound recording is an orchestral interpretation of 15 famous hits of the Beatles. It is this sound recording which can be considered to be a version recording. While there is no doubt in any listener’s mind that he is hearing a version of say, the well-known Beatles song ‘Eleanor Rigby’ originally sung by the Beatles, yet it cannot be said for a moment that a listener would be led to believe that the Beatles are singing it. What is adapted in a version recording is the original melody, but the beat, the orchestral arrangement and indeed the end product is what can be called a substantially new arrangement. In such a version recording while the original melodic arrangement inspires the new creation yet it is a version unmistakably different and distinct from the original. Thus the Royal Philharmonic Orchestra cannot complaint of violation of copyright in case the Beatle’s song ‘Eleanor Rigby’ is sung by some other musician or performed by some other orchestra, as the best its rights are akin to rights derived from Section 52 (j) of the Act.

Copyright Amarjit Singh, Amarjit & Associates. All Rights Reserved. Any unauthorised reproduction is strictly prohibited.


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