Version Recordings and Indian legislation
Version Recordings as defined by Justice Mukul Mudgal are such sound recordings which being inspired by the original melody, are a distinct interpretation in presentation, rhythm and orchestral arrangement.
In India, a nation that flourishes with Bollywood motion pictures as well as music, the entertainment industry requires a well-established legal framework that would shield the interests of copyright owners, artists and the public in general in order to help copyright owners benefit from the production of their work and at the same time promote budding talents in the country. Through the Copyright Act, 1957, the Indian legislation strives hard to strike a balance between the rights of a copyright owner and the fair demands of the general public. One of the prime objectives of the Copyright Law is to protect the author of the work from unlawful reproduction or exploitation of his/her work.
With the current copyright legislation in the country mainly through the 2012 amendment of the Copyright Act, one needs either explicit consent or appropriate license so as to make a version recording of a copyrighted song in public. However, there have been a series of litigations in India concerning the provisions under the Copyright law allowing version recording of musical work.
One such prominent case was that of Gramophone vs. Super Cassette Industries. In this case, defendants launched an audio cassette titled “Hum Aapke Hain Kaun” with an exact same layout and design as that of the originally produced audio record. In furtherance, the plaintiff sought an injunction against the defendant in order to restrain them from launching remixed versions of sound recordings on which the plaintiffs owned copyright.
The copyright of the original record “Hum Aapke Hain Kaun”, was owned by the plaintiff, Gramophone Company as was allegedly assigned to it by Rajshree Productions Pvt. Ltd. who were the copyright owners of the cinematographic work along with the musical record. The latter had assigned the copyright to the plaintiffs in the present suit. The plaintiffs claimed that they had sold over 55 lakh audio cassettes and 40,000 compact disks under the title “Hum Aapke Hain Kaun”, hence the said title could only be associated with the plaintiff alone. The plaintiff alleged that the defendants not only launched an audio cassette under the same title but also ensured that the design, colour scheme and layout were identical to that of the original record owned by the plaintiff. The defendants even used a picture of Salman Khan and Madhuri Dixit on the inlay cards of their version recording despite knowing the fact they were the lead actors in the original cinematographic work titled “Hum Aapke Hain Kaun”. The plaintiff further claimed that such usage of the plaintiff’s record by defendant was deceptive in nature and could cause confusion among the public at large. The plaintiff thus filed a suit for injunction based on the above mentioned claims seeking to restrain the defendants from manufacturing, selling, passing of audio cassettes under the disputed title or even making an inlay card having similar colour scheme, design and layout as that of the plaintiff’s original record. The plaintiffs further moved an application under Order 39 rules 1 and 2 for grant of ad interim injunction which was granted by the Delhi High Court.
In furtherance of the grant of the ad-interim injunction, the defendants moved an application under Order 39, rule 4. The defendants argued that their audio cassette was a version recording permissible under Section 52(1)(j) of the Copyright Act, 1957. They further claimed that they sent due notice in the prescribed form to the plaintiff and also paid the fixed royalties before having produced the recording in dispute. It was however directed by the court that as the Act permitted version recordings, the defendants could record the music subject to the condition that they would refrain from using deceptively similar design so as not to mislead the public at large. The court further noted that an alternate title be given to the record with a prominent declaration under the new title stating that the record is not the original sound track but only a version record comprising of the voices of different artists.
The Delhi High Court thus brought an end to the longstanding confusion as to whether or not version recording could be made of a copyrighted work. However, it is pertinent to note that the music industry plays a major role in structuring the revenue of the entertainment industry in India and has thus been accorded prime importance in the copyright industry. The amendment of the Copyright Act in 2012 through Section 31C brought forth some changes pertaining to version recordings such as the extensions of the limitation period was extended from 2 years to 5 years, the restriction on the recording versions in the same medium as that of the original medium, the payment of a minimum royalty for 50,000 copies notwithstanding the number of copies actually sold or produced, to name a few of them. Although the amendment in 2012 brought in strict regulations in order to protect the original work of the copyright owners, it has not completely been able to strike a balance between the interests of the parties and the public at large.