What is the Cover Version of a Song?
An original song consists of a literary work written by a lyricist, converted into a song by a singer with help of a music composer who composes the music. Eventually the song is completed and released into the market and some of these songs become popular in the market. Gradually, these songs are used to make the cover songs, by tweaking them or adding new beats to make it more attractive in the present-day context.
A cover song or a cover version is a new recording of a song by an artist other than the original composer or singer. In Para 15 of Star India Pvt. Ltd. vs Piyush Agarwal & Ors. it was observed,
“…if a mixture of the three works is conducted which are the lyrics, music and works of the artist together, and a sound recording is made, that sound recording which is the first sound recording……Once the first sound recording is completed, then, if and after permits are obtained from the writers of the musical work and the lyric creator who served the basis of the first sound recording, another band of orchestra with the singer (that is another group of performers) may cause a new sound recording to be produced by their performances based on the current musical work and lyrics. This second and subsequent sound recording is considered a version recording or a cover version.”
How Did This Start?
Cover versions of songs have been popular for a while, more so in the internet age. It is a matter of debate if such cover versions require the consent of the original copyright owners.
When the Copyright Act was enacted, Section 52(1)(j) provided that if a sound recording of any literary, dramatic or musical work already existed, the making of a subsequent sound recording would not amount to infringement of Copyright if the person making the recording has given the notice of his intentions to make records and has paid royalties to the copyright owner. However, the bare reading of the provision makes it clear that the only the initial recording required consent of the copyright owner, and not the subsequent recording i.e., the cover versions. This led to a significant amount of controversy.
Section 52(1):
“(j) the making of records in respect of any literary, dramatic or musical work, if –
(i) records recording that work have previously been made by, or with the license or consent of, the owner of the copyright in the work; and
(ii) the person making the records has given the prescribed notice of his intention to make the records, and has paid in the prescribed manner to the owner of the copyright in the work royalties in respect of all such records to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that in making the records such person shall not make any alterations in, or omissions from, the work, unless records recording the work subject to similar alterations and omissions have been previously made by, or with the licence or consent of, the owner of the copyright or unless such alterations and omissions are reasonably necessary for the adaptation of the work to the records in question;”
This section was, however amended by substitution in the year 1994, where the word ‘previously’ was removed from the new Section 52(1)(j)(i). The change was perhaps made because the original provision implied the granting of a non-voluntary license of the copyright to another person for the cover versions.
Cases and Amendments
In the case of Gramophone Co. vs Super Cassettes, the Delhi High Court was of the opinion that since the plaintiffs returned the royalties sent to them, it was enough to show that they did not have the intention to permit the defendants to come out with a cover version of their audio cassette. Further, the court held that plaintiff’s consent should be obtained by the defendant to make sound recordings and merely fulfilling all the conditions laid down in the provision was not enough to avoid any liability.
It may be noted that no reasons can be found for arriving at the conclusion that the plaintiff’s consent was necessary. S.52 describes exceptions to copyright infringement, and a bare reading of the text shows that consent was not of any substance in the provision.
In a contrasting decision, the Karnataka High Court in the case of Gramophone Co vs Mars Recording the court held that once all the conditions mentioned u/s 52(1)(j) are complied with, there will be a complete protection against any case of copyright infringement, even if no prior consent of the copyright owner has been taken to make subsequent cover songs. When this decision was contested in the Supreme Court, the court dismissed the petition.
Due to such contrasting opinions of the courts, the Copyright (Amendment) Act 2012 was passed, which removed Section 52(1)(j) and replaced it with Section 31C; Statutory license for cover versions.
Current Scenario
Despite these efforts, there is still a lot of debate and confusion whether consent of the copyright owner is necessary or not. One major difference between the provisions is that section 52(1)(j) was an exception provision and was replaced by section 31C which is a Statutory Licence provision.
The conditions prescribed by S. 31C are as follows:
- First, any person who intends to make a cove version has to give a notice of intention to the owner of the copyright and the Registrar of Copyright at least 15 days prior to making the cover version, along with the amount of royalties due for a minimum of 50,000 copies of the cover version. The amount of royalty is to be decided by the Copyright Board.
- While making the cover version, a person cannot make any alterations to the work except which are necessary for technical purposes.
- The cover version should not be in any kind of packaging or should not be promoted in any way which any lead the public to believe that it is related to the original sound recording. Further, the packaging should come with a disclaimer that it is a cover version and should prominently display the names of the performers.
In case of non-payment of royalties by the Licensee:
- The owner of the copyright may file a complaint to the Board for non-payment of the royalties against the licensee.
- If the Board is satisfied that the complaint id genuine, it may pass an interim injunction ordering the licensee from making further copies of the cover version.
- The Board after hearing both the parties will give such further orders, as it deems fit.
Finally, regardless of if the consent of the original owners are required or not, removing the provision from the umbrella of fair use means that it can no longer be used as a defense against copyright infringement.
Author: Kriti Pundir, Legal Intern at PA Legal.
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