The Copyright Act of 1957 (hereinafter also referred to as the Act and/ or Copyright Act, interchangeably) defines a sound recording as a fixed representation of sounds that can be reproduced or communicated, regardless of the medium used. The author of the sound recording is the producer or performer as per section 2(uu) of the Act. And similar to musical works, the rights are protected for the next sixty years after the producer's death from the next calendar year of the incident.
Acknowledging underlying works in sound recordings.
The content of most sound recording is subject to multiple layers of copyright protection, unlike literary work. With both authorship and ownership divided across a diverse class of work, the Courts over time, had to analyze a plethora of cases in deciding the extent of rights in sound recordings. The Courts have recognized that a sound recording is a derivative work emanating from certain underlying works, being literary (lyrics) and musical work (musical composition) . Section 13 of the Act defines the works in which copyright subsists; literary, musical and sound recordings are all “work,” in which copyright subsists.
For example, a commercial music or video compact disc embodies at least three separate kinds of copyrightable works, the lyrics, musical compositions and the sound recordings (the songs as performed, mixed or modified, and encoded on the disc). Each of these works may have multiple authors and the sound recording may be produced by multiple primary and back-up performers, as well as a producer, sound engineers, and other artist-technicians. (1)
Section 13 (3) (b) of the Copyright Act further provides that copyright shall not subsist in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed. Section 14(e) of the Copyright Act specifically addresses the rights pertaining to sound recordings. The copyright owner of a sound recording holds exclusive rights, including the ability to create additional sound recordings embodying the original work, sell or rent copies of the sound recording, and communicate the sound recording to the public.
The distinction between musical works and sound recording has been laid down by the Supreme Court in Indian Performing Right Society v. Eastern Indian Motion Pictures Association and Ors (2) It was settled that the copyright for musical works does not regard the soulful tune, singing, voice, or the manifestation of sounds. It is merely and only the melodies and harmonies in printed, written, or graphic notation form. The court also noted that the rights to literary works belong to the lyricist, while the rights to musical works belong to the musician. As for the rights to the sound recording, they are held by the producer.
In Music Broadcast Private Limited -Vs- Indian Performing Right Society Limited (3), the Bombay High court excluded the rights of composers and lyricists for a sound recording and upheld the sole rights of the producers.
The recent ruling by the Bombay High Court in the cases of Indian Performing Right Society Limited vs. Music Broadcast Limited (4) and Indian Performing Right Society Limited vs. Rajasthan Patrika Pvt. Ltd.(5) reinforces this stance, stating creators maintain distinct rights in their underlying works, even when incorporated into sound recordings for cinematographic films. Producers retain rights to the film as a whole.
The concept of Fair Dealing and Fair Use
The concept of both fair use and fair dealing permits certain copying of a copyrighted work without classifying the person making the copy as an infringer, even if the copyright holder has not given permission for the reproduction.
Fair dealing has a narrower scope compared to fair use as fair dealing can be applied only as the statute dictates, while fair use should only pass the test of fairness. In fair use, the Court decides, based on various factors, if the use amounts to fair use. For instance, in the US, under Section 107 of the Copyright Act, 1976, the four factors that are considered for determining fair use are the ‘purpose of use’, ‘the nature of work’, ‘the amount of dealing’ and ‘the effect of dealing on the original work’. Fair use is an exception under most civil law countries including the U.S., Malaysia and Singapore (6).
Fair Dealing of Sound Recordings as per Indian Copyright Act, 1956
In India, the concept of fair dealing is recognized under Section 52 of the Indian Copyright Act, 1956. As per Section 52 (1 )(za) of the Act, use of musical work or sound recording, without permission and license will not be considered infringement, if the performance and communication of such work to the public in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority. Explanation - For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage will be considered.
The Court in Phonographic Performance Limited v State of Punjab (7), stated that hiring a DJ to perform at any marriage-related event is surely a function that is connected to marriage, even though the DJ does not contribute to conducting of the marriage. The Court further clarified fair dealing exception should be applicable to such facilitators as well, as they enable playing of the songs at such social events.
In Ten Events and Entertainment v Novex Communications Private Limited & Ors (8) the Court observed that without providing the details of the festivities, with respect to which the declaration is being sought, the invocation of Sec.52(1)(za) of the Copyright Act is ex-facie misconceived. According to the Delhi High Court, it is not fair to grant a general declaration stating that there is no copyright infringement when sound recordings are used by a company providing event management services at weddings, due to the specific exception from copyright infringement provided under section 52(1)(za).
In the above mentioned case, the Delhi High Court, specifically mentioned as below.
“In order for the playing or communication of recordings, in festivities associated with the wedding, not to amount to copyright infringement, therefore, it would be necessary for the claimant so asserting that (i) the festivity in question is a “social festivity”, (ii) the festivity is associated with the marriage and (iii) the festivity is bona fide”
Digital Sampling of music and Fair use.
Many artists use music sampling in composition, production, and performance. The digital sampler, a powerful musical tool, enables musicians to record new versions of the song, where they typically sample very small portions of sound recordings. The genre of rap and remixes has its foundation in the reuse and rearrangement of older songs, which largely depends upon sampling technology (9). Some of the recent popular Bollywood rap songs that have sampled other popular retro are ‘Sajaaoonga Lutkar Bhi Teri Badan Ke Dali Ko’ by Desperado X , ‘Jhumka Gira re’ from the Bollywood movie Rocky Aur Rani Kii Prem Kahaani, ‘Hum Bekhudi Mein’ by King, ‘Baazigaar’ by Divine, and ‘Bekhayali Rap’ by Void, to mention a few.
Since samples usually constitute fairly brief portions of the original songs, it is an industry trend for most musicians to not acknowledge the source of the sample or seek consent from the original copyright owners under the auspices of the de minimis or fair use doctrines.
The principle of De Minimis is a common law principle that has been derived from the Latin term ‘De Minimis Non Curat Lex’, which means that the law does not care for, or take notice of, very small or trifling matters. The use of the copyrighted work in the song should be minimal or non-existent. This principle is not statutorily recognized by most countries in the world, including India; it is rather based and established through judicial precedents. The Courts in India, have used this principle and assessed its applicability on case-to-case basis.
The High Court of Delhi in India TV Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd. (10) laid down the factors that courts frequently evaluate when applying de minimis .There are five of them:
1. the scope and nature of the injury;
2. the cost of adjudication;
3. the aim of the breached legal obligation;
4. the impact on third-party legal rights; and
5. the wrongdoer’s intent.
In India Tv Independent News Service Pvt. Ltd. v. Yashraj Films Pvt. Ltd. (11), the Court considered use of very small portions of a famous song ‘Kajra Re’ and certain other songs during an interview with the singer. The Court applied the ‘de minimis test’ and held that, the use of de minimis, as applied in other areas of the law, without any modification or without having any marriage of convenience, has significant advantages in the field of copyright law and that the fair use concept would be a bad theoretical fit for trivial violations such as in the present case.
The principle of de minimis was also used as a defence in Super Cassettes Industries Ltd. v. Shreya Broadcasting Pvt. Ltd. (12), wherein the Delhi High Court, in light of the established five factors, perused the cue sheets submitted by the Plaintiff, Super Cassettes and held that since Shreya Broadcasting, the Defendant, had infringed nearly 500 minutes of the Super Cassettes copyrighted works at different occasions without obtaining any appropriate license from Super Cassettes, such use did not qualify for the defense of de minimis and ordered Shreya Broadcasting to pay compensatory damages of Rs. 21,00,000/- to Super Cassettes (13).
Conclusion.
In spite of the music industry's current emphasis toward licensing practices, such as sliding fee scale arrangement and mechanical license, fair use should remain a viable defense. The courts should not completely bar its assertion simply because the sample is of an original sound recording. As technology progresses, the interpretation of fair dealing under the copyright statute, should be more liberal. The Courts should apply a contemporary analysis of the fair dealing, and not simply rely on examination techniques or presumptions that are outdated and inappropriate in the context of new digital technologies. Such an analysis, coupled with the music industry's push toward more reasonable licensing procedures, will better serve copyright owners by protecting their legal rights, as well as musicians by protecting against economic stifling of their creativity (14).
(1) https://cmsimpact.org/code/fair-use-sound-recordings/, last accessed on August 3, 2023
(2) 1977 2 SCC 820
(3) Suit no. 2401 of 2006
(4) COMMERCIAL IP SUIT NO.84 OF 2022
(5) COMMERCIAL IP SUIT NO.193 OF 2022
(6) https://www.theipmatters.com/post/comparison-between-fair-use-and-fair-dealing#:~:text=Though%20the%20two%20terms%20fair,is%20illustrative%20and%20very%20subjective., last accessed on August 13, 2023
(7) Civil Writ Petition No.7772 of 2011 (O&M)
(8) CS(COMM) 74/2021
(9) https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1006&context=olr, last accessed on August 13, 2023
(10) 2013 (53) PTC 586 (Del)
(11) 192 (2012) DLT 502
(12) CS (OS) 1372/2009
(13) https://www.legal500.com/developments/thought-leadership/doctrine-of-de-minimis-vis-a-vis-copyright-infringement/, last accessed on August 13, 2023
(14) https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1527&context=lr, last access on August 13, 2023