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Controversies and Legal Position on Remixing and Version Recording

Ritesh Khosla

Abstract
Remixing and version recording run through sensitive issue of copyrights and has aroused
several controversies from different stake holders. Section 52 (1) (j) of the Indian Copyright Act,
1957 has bagged notoriety for promoting ‘legitimate piracy’. This paper while endeavors to
understand the concepts of remixing and cover versions from a legal stand point in the light of
controversies surrounding it, an attempt is also made to interpret Section 52 (1) (j) after making
an analysis of various High Court judgments on this subject.

Introduction
Think of a famous remixed song of an old movie released in 70’s and 80’s which you have heard
playing in a pub, or a remix music album of “DJ Aqeel or DJ Bally Sagoo” that you have ever
bought. The young generation may not like the original version of an old song but connects with
the remixed version, as what it is called in common parlance, instantly because it has the
ingredients of 21st century music. Music is diverse and defines the life style of every one of us.
Record companies have exploited this human tendency and have given us diverse music, making
us like the same original song but with few tunes and beats imported or taken out. Today
remixing has become so popular that many albums are released with the remixed versions of the
original songs contained in such albums.

While remixing is generally perceived to changing an original musical composition by doing


audio mixing to compose an alternate recording of a song, it has another dimension which is
though less popular than remixing but has been exploited by music companies world wide,
including India. Those who loved old songs sung in new voices of Aunradha Paudwal, Kumar
Sanu, Abhijit and Sonu Nigam with different music in late 1980’s can easily connect to it. It is
called “Cover Versions” or “Version Recording”. T-Series produced super hit music albums with
the said singers while popularizing cover versions or version recording in India.

Whilst we like to listen to remixed music and cover versions, there are several Intellectual
Property Issues (“IPR”) attached to it. Remixing and version recording run through sensitive
issue of copyrights and has aroused several controversies from different stake holders. This
article endeavors to understand remixing and cover versions from a legal stand point in the light
of controversies surrounding it.

Version Recording

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Over the years outside India, cover versions of many popular songs have been recorded,
sometimes with a radically different style, and in other cases the cover version is virtually
indistinguishable from the original. Cover versions have also been recorded in different
languages but essentially these are the translation of original lyrics. However there have been
instances where the lyrics of a cover version are not direct translation of the original lyrics, but of
course retain much of the spirit of original composition, making them identifiable as cover
version of original composition.

Version recording is not defined in the Indian Copyright Act, 1957 but there have been attempts
to define it by Indian courts. The Delhi High Court in Gramophone Company of India v. Super
Cassette Industries Ltd.(1999 PTC 252 (Delhi)) while defining as to what amounts to version
recording held that it is sound recording made of an already published song by using another
voice or voices with different musicians or arrangers. It must be noted that a cover version of an
original song uses different musical instruments when compared to the original song and may be
sung with a different pitch, rhythm and style with a voice different from the original song. The
lyrics in a version recording remain unchanged, except for translations of lyrics in other
languages. Version recording in certain instances, though not witnessed in India until date, can
result in changing the genre of the original song. For example, Jose Feliciano's version of "Light
My Fire" was utterly distinct from the original version by “The Doors”. In such extreme cases,
the spirit of original composition retained and inspiration of the song are the tests to be applied,
jointly and severally, in determining whether a particular composition is a cover version or not.

Remixing
In the remix albums, on the contrary, the notes of musical composition is so changed that it
appears new to the audiences. A remix is a ‘derivative’ version of original song keeping lyrics
same and change in the build ups of the song. For example, the particular beats in the song are
made fast or slow or completely changed with another instrument as against the original song.
Percussion instruments are widely used in modern remixes. A remixed song typically uses audio
mixing to compose an alternate recording of a song, by adding or subtracting elements, or simply
changing the pitch, equalization, dynamics, rhythm, playing time, or almost any other aspect of
the various musical components. In this process, the tunes of drumbeats, guitars and likewise
other musical instruments are totally or partly changed. However the original lyrics in a remixed
song remain unchanged but many a times, an element of rap is introduced which brings in
additional lyrics.

Distinguishing Factor
Whereas a cover version is a rendition of the original composition and recorded from a scratch
with a different singer, musicians and arrangers; but remixing uses the original composition as a
base wherein certain elements of music/tunes of the original composition are added or subtracted
while keeping the same lyrics sung in the original voice.

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Remixing and Version Recording under Indian Copyright Act, 1957


Since remixed and cover versions are produced from already existing musical works which are
protected under the Indian Copyright Act, 1957 (the “Said Act”), the issue of intellectual
property (copyrights) is a concern. To understand whether remixing and cover versions can be
produced legally, we will have to look into certain provisions of the Said Act in a sequential
manner.

The starting point is Section 13 (1) (a) of the Said Act which lays down that copyright subsists in
‘original’ ‘musical works’. A ‘musical work’ is defined in Section 2 (p) of the Said Act as a
work consisting of music and includes any graphical notation of such work but does not include
any words or any action intended to be sung, spoken or performed with the music. Further, the
author of the musical work is the ‘composer’ and not the singer or lyricist (Section 2 (d) (ii) of
the Said Act). A composer of a musical work (known as music director in common parlance)
means the person who composes the music regardless of whether he records it in any form of
graphical notation (Section 2 (ffa) of the Said Act). Therefore, any musical work which is
original and is composed by the composer in terms of graphical notations is protected under the
Said Act.

It is to be noted that the musical work must be original before copyrights can subsist in it. Any
musical work which is adapted can not be considered as original and falls within the realms of
adaptation. Adaptation is defined by the Said Act as “any arrangement or transcription of the
musical work” (Section 2 (a) (iv)). Remixed songs and cover versions are adaptations of original
musical works and hence, are capable of protection as separate musical works. The changes
described above in remix songs and cover versions fall within the category of adaptation, and
hence are eligible for copyright protection.

A question arises how a remixed musical work, which is not original, completely inspired from
other song and by adding or subtracting few elements, is capable of subsisting copyrights in it.
The answer lies in one of the principles of copyright law which states that copyrights can subsist
in a work only if there is a degree of originality in it and while creating it, the author has spent
sweat of his brow (hard work). Both the ingredients of the copyright law are applicable in a
remixed song – there is a degree of originality in the remixed song, i.e. new music is introduced
which results from hard work of the composer. Perhaps this premise of copyright law is more
befitted for version recordings in which the song is radically changed. Therefore copyrights can
subsist in adapted version of a musical work but such adapted version runs through the
copyrights of an original musical work and hence, involve intricate copyright issues.

It is important to note the difference between copying and adaptation of musical works at this
stage. Both are cases of infringement unless there is a proper license of the copyright owner
(author of the musical work) to do so. Copying all bars of notes of a musical work is copying

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and on the contrary, an adaptation involves copying anywhere between substantial portion to as
little as inspiration of bars of notes of a musical work in an adapted version.

Controversies surrounding Remixing and Version Recording – Position under


Indian Copyright Law
The straight forward way for a composer to adapt the musical work of some other author is to
take a license in accordance with Section 30 of the Said Act upon payment of license fees but
who would spend money when the Said Act allows one to do so virtually free? Section 52 (1) (j)
of the Said Act allows “legitimate piracy” of sound recordings and has invited a lot of criticism
from the music industry. Before we look into this controversial Section of the Said Act, it is
important to understand the concept of a “sound recording”.

A ‘sound recording’ means recording of sounds on a particular medium from which such sounds
may be produced (Section 2 (xx) of the Said Act). However, Section 13 (3) of the Said Act lays
down that copyright shall not subsist in any sound recording made in respect of a musical work if
in the process of making the sound recording copyright in such work has been infringed. In
Francis Day and Hunter V/s Bron (1963 2, All ER 160), a broad interpretation to infringement
has been given. It was held that infringement of copyright in a musical work is not to be
determined by a note for note comparison, but should be determined by ear as well as the eye.
Two works may be identical in many respects but if it has been created independently, it is not
infringement.

Clearly, the following things emerge from above provisions of the Said Act:

1) Sound recording and musical work are both separate works capable of copyright
protection.

2) There is no Copyright in song per se. From the perspective of copyrights, a song is
viewed in terms of words or lyrics, musical work and sound recording. All three
ingredients of a song support and are capable of holding separate copyrights. The
copyrights in the lyrics subsist in the lyricist, musical work in the composer and sound
recording in the music company.

3) It will be a case qualified as infringement under the Said Act if a music company records
a cover version or remixes an original musical work without a license of the author of the
musical work and/or the music company which has recorded the original musical work.
Since musical work is a separate work distinct from sound recording under the Said Act,
a recording company must record the musical work with the permission of the author of
the musical work which can be obtained by way of assignment or a license under sections
18 and 30 of the Said Act respectively.

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Section 52 is an exception to infringement of copyright in the works capable of copyright


protection and accordingly, enumerates certain acts which can not be considered as infringement
of copyright. Section 52 (1) (j) is one such section which qualifies the following acts as not
infringing the copyright in sound recordings:

A. Sound recording of a musical work has been made with the consent or license of the
owner of the work in accordance with Section 30 of the Said Act – discussed above.

B. The second act, which has bagged notoriety from the music industry and various critics,
entitles any person to make a sound recording, either a remix or cover version of an
original sound recording, by providing a notice to the copyright owner (and the Registrar
of Copyrights) of such original sound recording at least fifteen days before his intention
to do so. The notice shall include the following details: (i) copies of all covers or labels
with which the sound recordings are intended to be sold, and (ii) the details of the
royalties to be paid to the owner of such sound recordings that he intends to remix or
make cover versions at a rate prescribed by the Copyright Board. Few requirements that
need to be satisfied before a person can adopt this route to make remixes and cover
versions:

(a) The owner of the original sound recording has approved the alterations which are
proposed to be made in the remixed or cover version of such sound recordings.

(b) Two years must have been completed from the end of the year in which the first
recording of work which is intended to be remixed or version recorded was made. For
example, if the original sound recording is published on 19 th March, 2008, then no
person can send his notice of his intention to remix or make a cover version before
January 1, 2011.

(c) The packaging and labels under which the intended remix or cover versions album is
to be released must be approved by the owner of original recording. Once approved,
no alterations can be made.

(d) The packaging and the labels under which the intended remix or cover versions
album is to be released must not confuse or mislead the public as to their identity.
Although the owner of the original sound recording can approve the packaging and
label different from the original packaging and label.

Premise of Controversies surrounding Section 52 (1) (j)

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Ever since the remixes and version recording stormed the Indian music industry, the above
Section 52 (1) (j) has been criticized, primarily by the music industry which is the worst affected
by it. This clause allows any person to utilize the original archives and start production after two
years of the commercial release, just by sending a notice to the copyright owner and paying a
meager royalty payment which is 5 per cent of the proceeds from the first publication of the
album in which such remixed songs and/or cover versions are released. Once the said
requirements are fulfilled, the Said Act virtually gives a license to adapt the archives of sound
recordings, without even further seeking permission either from the copyright owner of original
sound recordings. This can be viewed as curtailing the copyright protection from 60 years to
straight 2 years. This is the reason that the Indian music industry wants to delete this entire
controversial section so that remixing and version recordings can not be made without obtaining
a license from them.

Under the guise of Section 52 (1) (j), one can make cover or remix versions by paying only 5%
of the proceeds of the first publication of the remixed or cover version album. The ostensible
reason for this 5% proceeds rule under the Said Act arousing the ire of the music industry is
apparently, as it alleges, that most music distributors sell cover and remixed versions and then
underreport the sales and pay virtually no royalty at all.

The small time music companies bring out the version recordings of popular songs by using
similar labels and packaging of the original producer with lower price. The ordinary users feel as
if they are buying the same songs at cheaper rates. But the fact remains that cover version songs
are sung by different artists, generally less familiar. That’s exactly what Gulshan Kumar of T-
series did by producing cheap cover versions with less familiar artists in 80’s and 90’s like
Anuradha Paudwal, Sonu Nigam etc. Hence the cost of production of producing the cover
version is far less as compared to the original versions which are sung by famous and expensive
singers. This invariably leads to loss of sales revenue to the original producer(s).When the
original copyright holder protests against cover version, the court orders the payment of
compensation .The composer gladly pays the fine as he makes much more money than fine
levied by the courts. Another contention of the music industry is insufficient or no credit to the
owner of the work in the remixed or cover version albums.

Case Law on Section 52 (1) (j)


It is important to analyze, through few pertinent judgments, how the Indian courts have
interpreted this controversial section.

1. In Gramophone Company of India v. Super Cassette Industries Ltd. (1999 PTC 252
(Delhi)) observed that a version recording should contain a declaration that it is not the
original and that it should be underlined.

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2. In Music India Ltd V. M/S Super Cassettes Industrial Pvt. Ltd & Others (1987 PTC
(Bombay) 83) held that a person who has paid in the prescribed manner to the owner of
the copyright in the work royalties in respect of all such records which he intends to adapt
(remix or cover version) shall not be considered as having infringed any copyright. In the
above case the defendants were not provided the benefit of the controversial section since
they had not obtained the consent from the plaintiff.

3. In Gramophone Company of India Ltd v. Supper Cassette Industries Ltd. (1999 PTC 2
(Delhi)) the interesting question was whether the defendant would become automatically
authorized to make the version recording once the requisite fees and notice has been
provided to the plaintiff. The defendants after a span of twelve years released the version
recording of an audiocassette with the same title. The defendants sent a letter to the
plaintiffs acknowledging its copyright in the work and along with the said letter enclosed
a cheque and notice that the defendants were making 5000 copies. The court held and
emphasized that under the section, the person intending to make version recording has to
take the consent of the copyright owner and issuance of notice was not sufficient to
entitle the defendants to make the sound recording automatically.

4. In Gramophone Company of India Ltd. V/s Super Cassette Industries Ltd. (1997),
popularly known as ‘Hum Aapke Hain Kaun Case’, T-series Music Company, owned by
the defendant, released a cover version of India’s one of the biggest hit movie ‘Hum
Aapke Hain Kaun’, violating the statutory waiting period of 2 years. Gramaphone sued
T-series for this violation. The Delhi High Court held that the makers of the version
recording relied upon a special provision of the Copyright Act (52(j)) which requires,
apart from other requirements, a notice to the copyright owner provided that two years
have been completed from the date of publication of the original sound recordings. There
is no provision of automatic licensing in the Act and the sound recording could be made
by the third parties only after they obtain permission from copyright owners. As plaintiff
had categorically refused to grant a license/assignment in favor of the defendant and also
had returned the cheque for royalty amount sent by defendant, it was able to win the case.

Analysis of Section 52 (1) (j)


An analysis of the above judgments clearly suggests that Section 52 (1) (j) can not be construed
as having the effect of ‘compulsory licensing’ since it requires the consent of the owner. This
interpretation by the courts is consistent with Section 52 (1) (j) read with Rule 21 (2) (b) of the
Copyright Rules, 1958 which requires the person intending to make cover or remix version to
disclose the proposed alterations in the sound recordings approved from the owner of such
works. Mere giving a notice does not provide a license to the person who intends to make
adaptations. If the owner of sound recordings does not give the consent to the proposed

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alterations pursuant to the notice, there is no automatic licensing to record cover or remix
versions.

However it can be argued that the owner of sound recordings is required to respond to the notice
immediately which proposes alterations in such recordings. This is because Rule 21 (1) of the
Copyright Rules, 1958 provides that such notice needs to be given at least fifteen days prior to
the recording of remix or cover version. If the owner does not respond for a long time and the
person serving the notice has gone ahead with the recording and commercial production of remix
or cover version albums, then the courts may find the balance of convenience against the owner.

Another aspect which needs to be looked into is the intention of the legislature while drafting the
said clause. Section 52(1) (j) would be redundant if permission of copyright owners were always
required after the expiration of statutory two years period from the publication of the sound
recordings. It can be argued after looking into the scheme of the Said Act that if the intention of
the legislature was not to enact compulsory licensing in the form of 52 (1) (j), then there is
practically no difference between licensing and 52 (1) (j) dealing exception to infringement.
This facet of interpretation of 52 (1) (j) can have its own arguments. Legislature while enacting
the Said Act might have thought of protecting the Indian music industry from cover versions and
remixing for at least two years due to the peculiarity of Indian music which is centered on
Bollywood movies. No Indian will deny that music of a film plays a crucial role in the success of
the movie and that Bollywood keeps music central to the marketing of the film. A restrictive
window of two years not to allow remixing and cover versions of songs allow the Bollywood
producers to effectively market their films and recover their investments (Nikhil Krishnamurthy:
The Statutory Mechanical License in India: Whose version [of the Law] is correct?Manupatra
Intellectual Property Reports, MIPR, Vol. 1, p. A-115, 2007).

Conclusion
Cover and remixed versions are considered as adaptations of musical works which are protected
by the Said Act as independent works. The musical works are embodied in the sound recordings
and cover/remixed versions are essentially created from original sound recordings. To create
these versions, a person needs the consent/license of the copyright owner. Section 52 (1) (j),
which deals with acts not amounting to infringement, has indeed been exploited by the music
companies at the cost of original rights holders (music companies) in recording versions of sound
recordings. The music industry has vehemently opposed and lobbied against this controversial
section. As a result of which, deletion/material changes in 52 (1) (j) are proposed in the
amendment to the Said Act. Until the proposed amendment hopefully tightens the noose on this
aspect of the Said Act, production of cover and remixed versions of sound recordings shall
remain in the grey area and controversial.

For any comments or feedback, please write to Ritesh.Khosla@gmail.com

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All copyrights in this article are vested exclusively in the author. Any reproduction of this article without the prior permission of the author shall
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