Version Recordings & Cover Versions – Part IV: Notes on Copyright Amendment, 2012

This post was first published on 27th June, 2014.

The Copyright Amendment of 2012 moved the provisions with respect to cover versions of sound recordings out of fair dealing provisions under Section 52, into a specific statutory license provision. Making version recordings, re-recording of prior sound recordings, was earlier permitted under the Copyright Law, but codifying it as a statutory license provision formalizes the said activity in many ways. Furthermore, Section 31C, which deals with statutory licenses for cover versions clearly spells out specific conditions and limitations for making version recordings.

The Section reads as follows:

“31C. Statutory licence for cover versions.

(1) Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section:

Provided that such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.

(2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board in this behalf:

Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section.

(3) The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings:

Provided that such sound recordings shall not be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work was made.

(4) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made:

Provided that the Copyright Board may, by general order, fix a lower minimum in respect of works in a particular language or dialect having regard to the potential circulation of such works.

(5) The person making such sound recordings shall maintain such registers and books of account in respect thereof, including full details of existing stock as may be prescribed and shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such sound recording:

Provided that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this section, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty.

Explanation.—For the purposes of this section “cover version” means a sound recording made in accordance with this section.”

The first noteworthy change in the provision is with respect to the medium of version recording. The proviso to clause (1) specifically provides that a conversion can be made only into the same medium of the original recording, unless the earlier recording is no longer in commercial use. For example, if the first recording was made on a magnetic tape, the cover version must also be on a magnetic tape. You cannot make a digital recording of the cover version.

The Section states that payment for the cover versions must be made to the authors in advance, and for at least fifty thousand copies in an year. The cover version must not mention the original singer or the name of the film for which the recording was made earlier. Finally, although minuscule, protection for producers has been incorporated.

Cover versions can be made only after five years of the first sound recording. Also, clause (3) prohibits any derivative works like remixes without the permission of the author, giving them an opportunity to bargain.

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