The Statutory Mechanical License in India

The Statutory Mechanical License in IndiaWhose Version [of the Law] is Correct ?1

“To remain ignorant of things that happened before you were born, isto remain a child.” - Cicero

Nikhil Krishnamurthy*

Introduction

There has been a spate of litigationin India involving the provision allow-ing version recordings2 of musicalworks.3 The principal players in theselawsuits are Saregama India Ltd. (for-merly known as the GramophoneCompany of India), Super CassetteIndustries Ltd., Mars Recording Co.Ltd. and Bathla Cassettes.

The issue in question is simply:-whether Section 52 (1) (j) of the Copy-right Act, 1957 requires a recordingcompany to take con-sent from the ownerof copyright in themusical work tomake a second orsubsequent record-ing of that work, ifsuch owner has al-ready authorized aprevious recording ofthat musical work.

There are also sev-eral concerns on thepart of the originalmusic composersthat companies mak-ing cover versions,remixes and music

videos of their compositions are de-basing the compositions.

In this article, I will attempt to answersome of the questions surroundingthis controversy.

A Brief Note on the Music Industryin India

The Indian Music Industry, unlikethe rest of the world, is largely drivenby film music. It has been the gen-eral practice for film producers toacquire ownership of copyright in

musical works fromthe music composer,produce sound re-cordings for incorpo-ration into the film(generally in songand dance se-quences) and thenassign the copyrightin the sound record-ings and underlyingmusical works of thesongs to a record la-bel. The record labelwould typically re-lease the sound re-cordings in the formof an album (com-monly known as the

whether Section 52 (1)(j) of the CopyrightAct, 1957 requires a

record company to takeconsent from the

owner of copyright inthe musical work tomake a second or

subsequent recordingof that work, if suchowner has already

authorized a previousrecording of that musi-

cal work.

1 This article is dedicated to my childhood friend Calvin Valentine Sequeira (1974-2006), who introduced me to good music. May he rest in peace.

2 Section 52 (1) (j), Indian Copyright Act, 1957; Section 19 (2) Copyright Act, 1911.3 References to musical works in this article include reference to any associated lyrics.

Manupatra Intellectual Property Reports (MIPR) [Vol. 1A-116

OST or Original Sound Trackabroad).

The record label, in its arrangementwith the film producer may either buyout the copyrights in the musicalworks and sound recordings for a onetime royalty amount, or pay royaltiesfor the exploitation of the mechanicalright in the musical work, and themaster right in the sound recording,on each unit of the album sold.

In effect, the record label would at-tempt to control, as far as possible,not only the copyright in the soundrecordings, but also the copyright inthe underlying works, i.e., musicalworks and associated lyrics.

The primary focus of the record labelwould naturally be to sell as manycopies of the album in the market.4

Therefore, anything that couldthreaten their market for the albumwould be viewed unfavourably, suchas the statutory mechanical licens-ing provisions.

What emerges from the above is thatthe music composer has been largelymarginalized, and the only key play-ers in the Indianmusic industry arethe film producersand the record la-bels, which is indeeda sad state of affairssince copyright wasmeant to protect thecreators of originalworks. This is whythe duration of copyright in originalworks is tied in with the lifetime anddeath of the author, not the owner ofcopyright.

From the early 1900’s one company,namely, the Gramophone Company ofIndia (which started off as the branchoffice of the Gramophone CompanyLtd., London) had a virtual monopolyover the record market till about thelate 1960’s when Polydor India Ltd.(now Universal Music India Ltd.), be-came a serious rival.5

Let us contrast this position with theposition in other parts of the world,such as in UK and USA.

The three key players are the musiccomposer/ songwriter, the music pub-lisher and the record label/ othermusic user. The music composer gen-erally assigns his rights in his musi-cal works to a music publisher. Themusic publisher’s job is to ensurethat the musical works are exploitedin all possible ways, so as to ensurethat he and the music composerearns as much as they can from suchworks. Therefore, for example, themusic publisher may approach a filmstudio and license the right to incor-porate the musical work in a film,under a synchronization license; or,he may approach various record la-

bels to make soundrecordings of the mu-sical work, using dif-ferent performers; or,he may license ringtones of the musicalworks to a cellularoperator. The owner-ship of copyright in

the musical work would not pass tothe film studio or record label or otheruser, but would merely be licensed.

It is common to see the same song per-formed by different performers, and

The three key playersare the music com-

poser/ songwriter, themusic publisher and

the record label/ othermusic user.

4 Although the Indian labels have woken upto the fact that they possibly control a vastrepertoire of music publishing rights and are now aggressively licensing, inter alia,ring tones, ring back tones, true tones etc.

5 For an interesting discussion, see http://www.bajakhana.com.au/Sound-rec-Ind-3D.htm

2007] A-117The Statutory Mechanical License in India

in many different cases, in their ownindividual styles, in foreign jurisdic-tions. So for example, the song“Knocking on Heaven’s Door” hasbeen performed by Bob Dylan, EricClapton and Guns N’ Roses. It ap-pears that there may well exist over70 different versions of this song!6

Each performance results in a soundrecording, copyright in which isowned by the record label that pro-duced it. However, each record labelhas to pay what is known in industryparlance as a “mechanical royalty” tothe music publisher of this song onthe sale of each unit, who will thensplit such amount, usually in the ra-tio of 50:50, with the music composer,who in this case is Bob Dylan.

It is interesting to note that the song“Knocking on Heaven’s Door” wasoriginally composed by Bob Dylan forthe movie Pat Garrett and Billy The Kid.

What emerges from the above discus-sion is that the music composer con-tinues to earn royalties from his com-position throughout his lifetime (andafter) through the efforts of his musicpublisher, which is quite a contrastto the Indian position.

A music publisher’s commercial in-terests are vastly different from thatof a record label. A music publisherwill want to commercially exploit themusical work as much as possible,and in as many ways as possible,while the record label will want to pro-tect its investment in the sound re-cording produced/acquired by it.

In India, till now, there has neverbeen a clear delineation between amusic publisher and a record label,and the record label wore both hats,without properly exploiting their mu-sic publishing rights. That situationhas changed in recent times.

You will remember that a recordlabel’s main interest is to protect therecording it has acquired from thefilm producer. Naturally, if a compet-ing sound-alike version of an OST isreleased by a different record labelutilizing the statutory mechanical li-cense provisions under the Act, it af-fects the sales of the first sound re-cording. Since they claim to own theunderlying rights in the musicalworks, they are in a position to ap-proach the Courts with the argumentthat their “consent” is required formaking a cover version.

Historical Background of TheStatutory Mechanical License

It must be remembered that the audioCD that we take for granted today ismerely the latest form in which musi-cal works are reproduced. The first typeof device which reproduced a musicalwork was possibly the music box. Itcomprised a metal cylinder with smallprotrusions arranged all over thedrum. When the device was primed bywinding it, the cylinder would turnand each metal protrusion would comein contact with a metal strip andtwang it, and these strips produced adifferent sound. A combination of allthese sounds would be a mechanicalreproduction of the musical composi-tion which could be heard. Musicboxes, commonly, would have the fig-ure of a ballerina doll or some suchdoll which would turn round andround, when the composition was me-chanically reproduced in this manner.

As the market for such music boxeswas small, most composers did not feelthat such manufacture unduly dis-turbed their exclusive right to repro-duce their compositions.

The manufacturers of such musicboxes did not enjoy any copyright in

6 http://www.songfacts.com/detail.php?id=3002


such music boxes, akin to copyrightin the modern sound recording.

The invention of the piano rollchanged all that.

The piano roll comprised a roll of pa-per with perforations on the paper.When this roll was inserted into aspecial type of piano called a playerpiano, the piano would automaticallyperform the music composition re-corded on the piano roll by spoolingthe roll and passing air through theperforations, which mechanically re-produced the musi-cal work.

As this became asubstantial market,music composerswoke up to the factthat their exclusiverights to reproducethe musical composi-tions, in this manner,were being infringed.Surprisingly, how-ever, in 1908, theUnited States Su-preme Court heldthat piano rolls andgramophone recordswere not copies ofmusical composi-tions, and thereforenot an infringementof copyright in musi-cal composition.7 TheCourt of Appeal in theUK had also arrivedat the same conclu-sion earlier in 1900by holding that thepiano roll was not areproduction of themusical composition,

reasoning that a perforated roll is nota copy of sheet music.8

The US Congress negated the deci-sion in White-Smith, and specificallyincorporated, in the Copyright Act of1909, the right of the music composerto authorize the making of mechani-cal reproductions of music in the formof piano rolls and the like.

It was at this stage that US Copyrightlaw also introduced the statutory me-chanical recording license. The rea-son behind this was the Aeolian Com-

pany, a leadingmanufacturer of pi-ano rolls which hadacquired the exclu-sive mechanical re-production rightsfrom various musicpublishers to makepiano rolls of theircompositions. Thefear was that othersmaller playerswould not be able tocompete with themonopoly held byAeolian. Therefore,the US Congress pro-vided that if the copy-right owner had per-mitted the mechani-cal reproduction ofhis song, thereafteranyone else couldmake mechanical re-productions of thatsong on payment of astatutorily pre-scribed royalty perunit sold.9 This, ineffect, is the statu-tory mechanical li-

the US Congress pro-vided that if the copy-

right owner had permit-ted the mechanicalreproduction of his

song, thereafter anyoneelse could make me-

chanical reproductionsof that song on payment

of a statutorily pre-scribed royalty per unitsold. This, in effect, isthe statutory mechani-

cal license to makesound recordings ofpreviously recorded

musical works whichappears in Section 52

(1) (j) of the IndianCopyright Act, 1957.

The US has continuedwith this provision in

their new copyright lawof 1976.

7 White-Smith Music Pub. Co. v Apollo Co., 209 US 1 (1908)8 Boosey v Whight, [1900] 1 Ch. 1229 See Kohn on Music Licensing, 2nd Edition, Aspen Law & Business, at page 657

2007] A-119

cense to make sound recordings of pre-viously recorded musical works whichappears in Section 52 (1) (j) of the In-dian Copyright Act, 1957. The US hascontinued with this provision in theirnew copyright law of 1976.

In the UK too, the Copyright Act, 1911recognized the right of the music com-poser to authorize mechanical repro-duction of his composition and simi-larly negated the effect of the decisionin Boosey v Whight. At the same time,like the USA, UK too introduced thestatutory mechanical license in Sec-tion 19 (2) of the 1911 Act, with a viewto encourage the growth of the infantrecording industry and prevent theestablishment of monopolies in theUnited Kingdom.10 This provision wascontinued in the 1956, Act in Section8 and discontinued in the Copyright,Designs and Patents Act, 1988, de-spite the recommendation of theWhitford Committee Report.11 The UKnow has a collecting society, MCPS,which licenses the mechanical rightsin musical works.

The genesis of thestatutory mechani-cal license is ArticleXIII of the 1908 BerneRevision of the BerneConvention in whichthe Parties weregiven the right to in-troduce limitationsand conditions.

Article XIII providesas follows: -

“Each country of theUnion may impose for itself

reservations and conditions onthe exclusive right granted to theauthor of a musical work and tothe author of any words, therecording of which together withthe musical work has alreadybeen authorised by the latter, toauthorise the sound recording ofthat musical work, together withsuch words, if any; but all suchreservations and conditions shallapply only in the countries whichhave imposed them and shall not,in any circumstances, beprejudicial to the rights of theseauthors to obtain equitableremuneration which, in theabsence of agreement, shall befixed by competent authority.”

As will be evident from the foregoingdiscussion, the expression “mechani-cal right” meant the right to autho-rize a mechanical reproduction of amusical work onto a mechanical con-trivance, such as a music box or per-forated piano roll which would repro-

duce audibly themusical work by me-chanical means. Theexpression mechani-cal right in respect ofsound recordingshas stuck and con-tinues to be usedeven in the presentday, when musicalworks are electroni-cally/ digitally repro-duced onto audiocompact discs, and

are no longer “mechanically” repro-duced.

The genesis of thestatutory mechanical

license is Article XIII ofthe 1908 Berne Revi-

sion of the Berne Con-vention in which theParties were given theright to introduce limi-tations and conditions.

10 See Copinger and Skone James on Copyright, 14th Edition, 1999, Sweet & Maxwell,at page 1547, and the Report of the Law Reform Commission of Hong Kong, Reformof the Law Relating to Copyright, November 1993, at page 80 (www.hkreform.gov.hk/en/docs/rcopyright-e.doc)

11 Cmnd 6732, Report of the Committee to consider the Law on Copyright and Designs,March 1977, pp 86-87

The Statutory Mechanical License in India


The Statutory License/CompulsoryLicense Distinction

At this stage, it is important to un-derstand the distinction between astatutory license and a compulsorylicense.

Where an exclusive right is granted,but the statute allows a user, with-out the prior permission of theright owner, to carry out the actscovered by the right upon completionof certain procedures, possibly in-cluding payment of royalties, a com-pulsory or statutory license is said toexist. Thus, the law may grant theauthor the right to authorize the mak-ing of sound recordings of his work,but at the same time may providethat such recording can be madewithout the prior permission of theauthor, where the author has previ-ously agreed to the making of a soundrecording of the work, and providedthat the user pays royalties as pre-scribed by law. Sometime the term“compulsory license” is applied to pro-visions requiring application to thecourt, whereas a “statutory license”may be available merely on fulfill-ment of conditions such as noticeand payment.12

Therefore, anyone intending to makea subsequent sound recording of apreviously recorded musical workmay simply comply with the noticeand payment provisions of the Copy-right Act, 1957, and will not requirethe consent or license of the owner ofcopyright in the musical work.

The legislative intent in requiring anotice to be sent to the copyrightowner is to provide the copyrightowner a chance to dispute that any

previous recording of his work was au-thorized by him. It is possible thatsomeone has made and published anunauthorized “first recording” of amusical work, in which case the copy-right owner can refuse a second re-cording of that work because the firsthad never been authorized by him.13

In this regard the following passagefrom the Irish Parliamentary Debatesis particularly illuminating: -

The point about copyright inmusical works is best explainedin this way. The author hascopyright in the actual musicalair. There is also furthercopyright in gramophonereproductions. The originalcomposer can control thereproduction in the firstinstance. He can refuse to haverecords made of the air, but if thelaw is that a right is given to anyone person, on particular termsto reproduce, the same rightmust be given to all comers onthe same terms. This deals withthe particular limitation uponthe acquiring of copyright by theowner of the air.

Sub-section 2 of Section 169 says:—“It shall not be deemed to be aninfringement of copyright in anymusical work for any person tomake within Saorstát Eireannrecords, perforated rolls, or othercontrivances by means of whichthe work may be mechanicallyperformed if such personproves—

(a) that such contrivanceshave previously been madeby, or with the consent oracquiescence of, the owner

12 World Copyright Law, J.A.L. Sterling, Sweet & Maxwell, 199813 See for eg. Regulation 9, Indian Copyright Regulations, 1914 and Halsbury’s Laws of

England, 4th Edition, Volume 9 at page 564, Note 5

2007] A-121

of the copyright in the work,and has given certainnotice.

All that is intended to be establishedis that any person within the FreeState, on proving that he is merelytaking to himself rights which havepreviously been granted by the ownerof the copyright to somebody else, iskept outside infringement of copy-right. A similar point about noticeapplies, but this section meansmerely that at the point where thefirst owner of the copyright has al-lowed records to be made he cannotprevent all and sundry records frombeing made on payment and acced-ing to the conditions, but the condi-tions are not to be given to one ortwo or three but must be assigned toall.14

The Preface to the Commentary on theIndian Copyright Act, 1957 by T. R.Srinivasa Iyengar15

states thatthe scheme of theIndian CopyrightAct, 1957 (XIV of1957) in India isderived from thereport of theC o p y r i g h tCommittee in 1952which formed thebasis of the latestEnglish CopyrightAct of 1956.

The 1952 Report, orthe Gregory Report16

as it is known, concluded thatOur second recommendation,namely, that the right of the

gramophone companies torecord copyright material whichthe composer has alreadyauthorized for recording, shallcontinue.17

It must be remembered that when theSection 52 (1) (j) provision was firstdrafted, it appeared as Clause 30 ofthe Copyright Act, 1955 (Bill XV of1955), with the marginal notation:

Compulsory licence to makemechanical contrivances.

The Notes on Clauses with respect tothis provision states that

the clause is based upon Section19 (2) of the UK Act [1911]

It was called a “compulsory licence”under that Bill as one had to makean application to the Copyright Boardto determine the rate of royalty pay-able, as opposed to a predeterminedrate applicable to all in the case of astatutory license.

Once the 1957 Actcame into force,the CopyrightBoard in an orderdated 28th April,1959 determinedthe rates of royal-ties payable at 5%of the ordinary re-tail selling price ofthe record at themarket, or cata-logue selling priceof single recordsto the public. ByOrder dated 8th

January, 1997 the Copyright Boardcontinued the same rate of 5% and

Once the 1957, Act cameinto force, the CopyrightBoard in an Order dated28th April, 1959 deter-

mined the rates of royal-ties payable at 5% of the

ordinary retail sellingprice of the record at the

market, or catalogueselling price of singlerecords to the public.

14 Seanad Eireann, Volume 8-23, March 1927, Industrial and Commercial Property(Protection) Bill, 1926—Report Stage, pp. 647-648 (http://historical-debates.oireachtas.ie/S/0008/S.0008.192703230006.html)

15 1959, Law Book Company16 Supra n. 2017 at page 32



saw no reason to increase it. In thepresent day scenario, there is goodreason to see an upward revision ofstatutory rate.

Copyright In Sound Recordings

While providing musical composers toprevent or authorize the “first record-ing” of their musical works, UK lawrecognized for the first time, that mak-ers of such records, contrivances, per-forated rolls etc. had a copyright insuch records, though for a shorterperiod of time. As this right was“neighbouring” to the copyright inoriginal musical, literary, dramaticand artistic works, the said copyrightin sound recordings became knownas a neighbouring right.18 This rightis meant to protect the investmentmade by a record company in produc-ing a sound recording of a musicalwork.

An extract from Kohn on Music Li-censing will better illustrate thispoint: -

The copyright in a soundrecording is completely separatefrom the copyright in theunderlying songfeatured in thesound recording.For example, thereexists a validcopyright in thesong “I’ve Got YouUnder My Skin” byCole Porter andthe copyright isowned by WarnerChappell Music,Inc., a musicpublishing company. At the

same time, several recordings of“I’ve Got You Under My Skin”have been recorded bynumerous recording artists overthe years. A completely separatecopyright exists for eachindividual recording – thesequence of sounds that makeup the performance of the songby a singer and orchestra. Theserecordings are owned by therespective record companiesthat commissioned theircreation. For eg., Frank Sinatra’s1956 recording of “I’ve Got YouUnder My Skin” is owned byCapitol Records; his 1963recording of the same song isowned by Reprise Records.19

Sound recording technology devel-oped rapidly after the music box andpiano roll and morphed into the[Edison’s] wax cylinder, the[Berliner’s] gramophone record, thereel-to-reel (or spools), the compactaudio cassette and finally, in thepresent day, the compact disc, minidisc and so on and so forth. With theemergence of legal digital distribution

of sound recordingsover the Internet, in-dustry experts pre-dict the death of thecompact disc in thenext 3-4 years. Digi-tal distribution willbe a boon for artistsand composers,since that will doaway with publish-ing costs commonlydeducted by record

labels from royalties payable, such as

18 Other examples of neighbouring rights are performers’ rights, broadcast reproductionrights and copyright in films. The term of protection for such rights are much lowerthan that for original works.

19 Kohn on Music Licensing, 2nd Edition, 2000 Supplement, Aspen Law & Business,at page 269.

With the emergence oflegal digital distribution

of sound recordingsover the Internet, indus-try experts predict thedeath of the compactdisc in the next 3-4

years.

2007] A-123

on blank media, packaging and dis-tribution. Such costs will become vir-tually non-existent when it comes tolegal distribution of music on theInternet.

Coming back, makers of such soundrecordings began to enjoy copyrightin them from 1911 in the UK. So forexample, the Copyright Act, 1911 pro-vided the maker of a mechanical con-trivance, a copyright in such contriv-ance “in like manner as if such con-trivances were musical works”.20

While the 1911 Act (which was alsoextended to India) gave the maker ofa record a copyright, the extent of thecopyrights was not clearly specified.So while a music composer copyrightsincluded the right to authorize thepublic performance of his musicalwork by any means, whether live, oron a record, it was not clear whetherthe maker of the record had a similarcopyright to authorize a public per-formance of his record. That positionwas clarified, first in Australia in1929, and in 1934 subsequently inthe UK.21

It is most unfortunate that it hasbeen urged, before various courts inIndia, to the detriment of the poor com-poser, that a music composer’s rightof public performance in his musicalwork applies only in the case of a liveperformance while when the samecomposition is publicly performedusing a sound recording, the musiccomposer will have no right to receivea royalty and that the only royaltypayable is to the record label who

owns the sound recording. As can beseen from the decisions in Cawardineand 3 DB, the question, historicallyspeaking, was never whether the com-poser had this right, but whether therecord company had this right “inaddition” to the composer.

The composer/ owner of copyright ina musical work has always had thisright, regardless of the method of pub-lic performance, whether live or re-corded.22 It is important to rememberthat the sound recording would noteven exist, but for the music compo-sition, and any public performance ofthe recording must necessarily meanpayment of royalty to the composer ofthe tune incorporated in such soundrecording, if she or he is also theowner of copyright in the musicalwork.

In order to understand this moreclearly, one may take the analogy ofthe statutory mechanical licensingprovisions themselves. A statutory lic-ensee is expected to pay a statutoryroyalty on each sound recordingmade, for exercising the right of re-producing the musical work in theform of a sound recording. By thesame logic, a licensee publicly per-forming a sound recording would alsonecessarily have to pay royalty forexercising the public performancecopyright of the musical work con-tained in such sound recording.

To take another example, if anotherrecord label in a foreign countrywants to reproduce a sound record-ing made in India and sell it in such

20 Section 19 (1), Copyright Act, 1911, See also Cmnd. 8662, the Report of the CopyrightCommittee, October 1952, at page 31

21 Australasian Performing Rights Association v 3 DB Broadcasting Co. Pty.Ltd., 1929VLR 107 (Supreme Court of Victoria); Gramophone Co. v Stephen Cawardine (1934)Ch. 450

22 However, US and Singapore law still do not recognize a public performance right insound recordings. In the US such a right exists for the limited purpose of digitalperformances such as Internet, radio etc.



foreign territory, it would have to paythe Indian record label a “master li-cense” royalty to reproduce the mas-ter sound recording produced by theIndian label, and also pay the ownerof copyright in the musical work con-tained in such recording a “mechani-cal” license royalty as each time themaster is duplicated, the originalunderlying musical work is also be-ing duplicated.

It must be noted that copyright is en-joyed by the maker of a record,whether his is the “first recording” orthe “second or subsequent recording”made under the provisions of thestatutory mechanical license provi-sions. The unfortunate 2003 ruling ofthe Delhi High Court23 holding thatcopyright does not subsist in soundrecordings made under the statutorymechanical licensing provisions ofSection 52 (1) (j) of the Copyright Act,is therefore clearly per incuriam andcontrary to copyright law. That mat-ter is in appeal and it is hoped thatthe Hon’ble DivisionBench will reversethat finding.24

The 1994 Amend-ment To Section 52(1) (j)

In 1994, extensiveamendments weremade to Section 52(1) (j).25 You will recallthat I have earliermentioned that arecord label will lookunfavourably uponany act that reducesthe market for its“first recording”.

Therefore, after some lobbying, cer-tain additional provisions were in-serted into Section 52 (1) (j) to addressthe concerns of the recording indus-try.

The salient amendments are summa-rized as under: -

First, no record label could bring outa version/ cover recording under theprovisions of Section 52 (1) (j) untilthe expiry of two years from the pub-lication of the first recording. Ofcourse, nothing prevents a recordcompany from seeking a voluntary li-cense from the copyright owner un-der Section 30 and bringing out a ver-sion recording within this period oftwo years. This restriction, therefore,does not inhibit the right of the copy-right owner to voluntarily license hismusical work during this period orgive any “exclusive” license to therecord company publishing the “firstrecording” for a period of two years.Of course, since the music industry

is mainly driven byfilm music, ideally,the copyright ownerought not to allow“sound-alike” record-ings, as this will af-fect the economic in-terests of the recordcompany bringingout the “first record-ing”. There is now aproposal to increasethis incubation pe-riod to five (5) years.In other countrieswhere similar provi-sions exist, a versionmay be released on

The unfortunate 2003ruling of the Delhi HighCourt holding that copy-right does not subsist insound recordings made

under the statutorymechanical licensing

provisions of Section 52(1) (j) of the CopyrightAct, is therefore clearlyper incuriam and con-trary to copyright law.

23 Super Cassette Industries Ltd. v Bathla Cassettes, 2003 (27) PTC 280 (Del)24 FAO (OS) 27 of 200425 To see the version of Section 52 (1) (j) prior to the amendment please see http://

www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html. For thepresent version, see http://www.indialawinfo.com/bareacts/cpr.html

2007] A-125

the very next day after the first re-cording is published.

Second, it was mandated that the ver-sion recording could not be issuedwith misleading packaging. Thisseems fair enough. The intention wasto stop the makers of second and sub-sequent recordings from passing offthose recordings as the first record-ing, which is a legitimate concern.

Third, a provision for allowing theowner of copyright in the musicalwork to inspect the records andbooks of account of the makers ofsecond and subsequent recordings,was incorporated. This was to pro-tect the owner of copyright in themusical work from wrong accountingby the makers of second and subse-quent recordings, and is also a le-gitimate concern.

It is important to note that the provi-sion itself was not removed. It stillexists as a defence to infringement.Arguing that the provision requiresconsent from the owner of copyrightin the musical work makes the provi-sion nugatory. If consent was re-quired, there would be no need to con-tinue to place the provision in Sec-tion 52, which pertains to defences,and one could simply take a volun-tary license contemplated under Sec-tion 30. Moreover, such an interpre-tation would be contrary to the mean-ing of Article XIII of the Berne Con-vention that we have seen earlier.Where there are two possible inter-pretations (and I submit that there isonly one in this case, the one thatrequires no consent), the interpre-tation that conflicts with provisionsof an international convention towhich India is a member, must be re-jected in favour of the one that is con-sistent.

After the amendment, it was noticedthat the pre-existing parts of the sec-tion which continued in the amendedsection was lacking a few words like“previously” and “and” and a few com-mas. It has been argued that this nowmeans that the Section mandates theconsent of the copyright owner. I sub-mit that this must not be given anyimportance whatsoever and must bechalked down to sloppydraughtsmanship, nothing else. Sev-eral reasons support this point ofview, such as

(a) the fact that the Sectioncontinues to exist as a defenceitself is evidence enough that therequirement of consent wouldmake it redundant.(b) Moreover, neither theStatement of Objects andReasons for the 1994amendment, nor theParliamentary Debates, throwany light for the reasons foramendment which must betaken to mean that theamendment did not intend tomake any drastic change to theprovision such as to require theconsent of the copyright ownerfor making second orsubsequent recordings, butmerely meant to address issuesof misleading packaging,accounting etc.(c) Of course, the requirement ofconsent would make it conflictwith Article XIII of Berne asalready stated above.

With respect to point (c) above, it isrelevant to quote from a judgment ofthe Hon’ble Supreme Court26, as un-der –

..international treaties haveinfluenced interpretation of

26 Peoples’ Union for Civil Liberties v Union of India, (2005) 2 SCC 436



Indian law in several ways. ThisCourt has relied upon them forstatutory interpretation, wherethe terms of any legislation arenot clear or are reasonablycapable of more than onemeaning. In such cases, thecourts have relied upon themeaning which is in consonancewith the treaties, for there is aprima facie presumption thatParliament did not intend to actin breach of international law,including State treatyobligations. It is also wellaccepted that in construing anyprovision in domestic legislationwhich is ambiguous, in thesense that it is capable of morethan one meaning, the meaningwhich conforms most closely tothe provisions of anyinternational instrument is to bepreferred, in the absence of anydomestic law to the contrary.

The above principle has been reiter-ated in various earlier decisions of theSupreme Court27, including in thecontext of interpreting another provi-sion of the Copyright Act, inGramophone Co. v Birender BahadurPandey, AIR 1984 SC 667, extractedas under: -

…it becomes clear that the word‘import’ in Section 53 of theCopyright Act cannot bear thenarrow interpretation sought tobe placed upon it to limit it toimport for commerce. It must beinterpreted in a sense which willfit the Copyright Act into thesetting of the InternationalConventions…We have, therefore, no hesitationin coming to the conclusion that

the word ‘import’ in Sections 51and 53 of the Copyright Act means‘bringing into India from outsideIndia’, that it is not limited toimportation for commerce only butincludes importation for transitacross the country. Ourinterpretation, far from beinginconsistent with any principle ofInternational Law, is entirely inaccord with InternationalConventions and the Treatiesbetween India and Nepal. Andthat we think is as it should be.

It is rather ironic that the Appellantin the above case, is now activelyseeking to institutionalize an inter-pretation of Section 52 (1) (j) in a man-ner that is not consistent with ArticleXIII of the Berne Convention.

The genesis for this rule of interpre-tation is of course Article 51 (c) of theConstitution of India which statesthat “the State shall endeavour to fos-ter respect for international law andtreaty obligations…”.

Discussion of Case Law

The fact that Section 52 (1) (j) is aninvoluntary license is abundantlyclear. It is a worldwide industry prac-tice, and it is surprising that theCourts have such a hard time inter-preting this provision, as we will seebelow.

An extract from the decision in CBSRecords Australia Ltd. v Telmak, Fed-eral Court of Australia, dated 8th May1987 (Telmak)28 will amply demon-strate the worldwide practice of ver-sion recordings: -

13. There is a practice in theindustry of issuing compilationsof songs by original artists. Thereis also now a practice of issuing

27 See for eg. V. O. Tractorexport v Tarapore & Co., AIR 1971 SC 1; The Chairman,Railway Board v Mrs. Chandrima Das, AIR 2000 SC 988

28 (1987) 8 IPR 473

2007] A-127

compilations of songs by artistsother than the original artistsincluding unknown artists orlesser known artists. These arefrequently known as “coverversions”. Due to the operationof the compulsory licenceprovisions with respect tomusical works in the CopyrightAct, 1968 (Cth) and in theCopyright Acts of other countrieswhich permit recording artists torecord previously released songswithout the permission of thesongwriter, there is a vigorousmarket for “cover version”compilations. Some coverversions by much less wellknown artists are boughtparticularly for the melodies orsongs chosen. Other coverversions are so recorded as tosound as alike as possible to theoriginal recordings which havebeen issued. In order to achievethe “sound alike”, a singer witha voice as similar as possible tothe original artist is used alongwith emulators and synthesizersin the studio to alter and governthe nature of the soundproduced. The songs listed in the“Chart Sounds 16 Hit Songs /-/-1” are “sound alike” versions. Tomention two of the songs whichwere in evidence, the song “WalkLike An Eygptian” achieves avery close similarity to theoriginal. On the other hand, thesong “I Knew You Were Waiting(For Me)” shows a greater rangeof differences.14. It appears from the evidencethat the production of “sound

alikes” in Australia has been acommon feature in the industryfor some years and apparentlyno action has previously beentaken by the applicants inrelation to “sound alike” versionsof original songs belonging tothem. There is a suggestion thatthe applicants have themselvesissued “sound alike” records orcassettes and there is inevidence a catalogue which lists“sound alikes” available fromthem but the evidence does notshow that they have ever sold“sound alikes” in Australia.

The Hon’ble Supreme Court of In-dia29 had the opportunity to decidewhether Section 52 (1) (j) requiredconsent from the owner of copyrightin the musical work. Unfortunately,after considering all the authorityplaced before it, the Hon’ble Su-preme Court remanded the matterback to the Trial Court at Banga-lore without making any finding onthe requirement or lack thereof, ofconsent.

However, the Hon’ble Supreme Courtdid not contradict the findings of theHon’ble Karnataka High Court30

which correctly concluded that Sec-tion 52 (1) (j) did not require con-sent (but, unfortunately, for all thewrong reasons). The Hon’bleKarnataka High Court did not fullyappreciate or consider the conspec-tus and historical background ofSection 52 (1) (j).

The City Civil Court at Bangalore hasruled subsequently that once thestatutorily prescribed notice period of15 days under Rule 21 of the Copy-

29 Gramophone Co. of India Ltd. v Mars Recording Pvt. Ltd. & Ors., 2001 PTC 681 (SC)30 Gramophone Co. of India Ltd. v Mars Recording Pvt. Ltd. & Ors., 2000 PTC 117

(Karnataka)



right Rules, 1958, has expired, con-sent is deemed. It also held that ifproduction of the sound recordingcommenced prior to the expiry of the15-day notice period, it would be aninfringement of copyright.31 While itis mildly heartening that the City CivilCourt has held that there is deemedconsent after the expiry of the 15-daynotice period, the reasoning is clearlyflawed.

As discussed earlier, the object of the15-day notice period was meant to givethe copyright owner a chance to denythat any alleged “first recording” in themarket was made with his consent, andtherefore block the second recording.In my view, the provision would be ad-equately complied with if the second orsubsequent recording is released in themarket after a period of 15 days fromthe receipt of notice by the owner ofcopyright in the musical work.

The Delhi High Court on the otherhand has held that consent is re-quired,32 which again, is a most un-fortunate conclusion. However, in anearlier case, while it had the opportu-nity to examine this question, simplyordered that the version recordingsnot be issued in any misleading pack-aging, which would be a tacit accep-tance that consent was not required.33

The Kolkata High Court, in an orderdated 20th July 2006 in GA 2093 of2006 in CS 119 of 2006 has statedthat the issue of whether consent ofthe copyright owner is required underSection 52 (1) (j), is required to be ex-amined upon filing of affidavits.

More recently, in Order dated 21st

December 2006 in Saregama India Ltd.v Super Cassettes (GA 3594 of 2006 in

CS 305 of 2006), the Hon’ble KolkataHigh Court relied upon the judgmentof the Hon’ble Karnataka High Court,referred to above where it was heldthat Section 52 (1) (j) does not requirepre-requisite consent from the owner,and held that the judgment of theKarnataka High Court is a finaljudgment. It further held:

“In view of the judgment of theKarnataka High Court in thecase of Mars Recording Pvt. Ltd.(supra), the prima facie casemade out by the Plaintiff on thenecessity of consent of thecopyright owner is not strongenough to warrant the passingof interim orders, as prayed forin the petition, at this stage,without affidavits.”… “Interimorders as prayed for in thepetition would cause irreparabledamage to the defendant/respondent, if the suit ultimatelyfails. If, however, the suitultimately succeeds theplaintiff/ petitioner can bemonetarily compensated.”… “Iam of the view that the balanceof convenience is againstinterim orders as prayed for bythe plaintiff/ petitioners beingpassed at this stage withoutaffidavits.”

The foregoing results clearly make thecase for setting up specialized IPCourts in India even stronger.

Some Final ConsiderationsSynchronization Rights

It is important to bear in mind thatthe statutory permission under thestatutory mechanical license provi-sions extends only to the making of

31 Mars Recording v Gramophone Co., Judgment dated 28th February 2004 in OS No.4792/98

32 1999 PTC 2 (Del)33 Gramophone Co. of India Ltd. v Super Cassette Industries Ltd. 1996 PTC (16) 252

2007] A-129

sound recordings (the mechanicalright). These provisions do not extendto the incorporation/ reproduction ofthe musical work in a cinemato-graphic film, such as a music videoor full-length feature film. This rightis retained by the owner of copyrightin the musical work, and is known inindustry parlance the world-over, asthe “synchronization right”, i.e., theright to permit the synchronization ofa musical work with a moving picture.

This right exists even in India, as thecopyright owner has the right to re-produce his work in “any materialform”, which would include inclusionof the work in a feature length film34,and additionally has the right to makea cinematograph film in respect of thework, which clearly covers music vid-eos. For example, one of the latestEnglish films “InsideMan” uses the ex-tremely popularHindi song ChaiyyaChaiyya in its open-ing credits, presum-ably with an appro-priate license fromthe copyright owner,which is an exampleof synchronized use.

Therefore the mak-ing of music videosincorporating musi-cal works under theshelter of Section 52(1) (j) is clearly an infringing act asthe provision only applies to makingof “sound recordings”. For making amusic video, an express “synchroni-zation license” would be required from

the copyright owner.35 If making ofmusic videos were allowed under Sec-tion 52 (1) (j), then it may well be ex-tended to argue that the musicalworks/ lyrics may be incorporatedwith other visual elements such asvideo games or karaoke discs as well,and the flaw in the argument becomesapparent.

Ring Tones/ Ring Back Tones

The question of whether a true-tonering tone/ ring back tone (as opposedto a monophonic or polyphonic ringtone) may be made of a version re-cording is also not difficult to answer,since the owner of copyright in asound recording has the right to makeand sell another sound recordingembodying the version recording. Al-though ring tones/ ring back tonesare not sold under covers or labels,

and the Section re-quires such coversand labels to be sentto the copyrightowner for inspection,this requirement isonly to satisfy thecopyright owner of theprinted price, to en-sure that the packag-ing is not misleading,and to see that thecopyright particularsare printed accu-rately. As long as thecorrect statutory me-

chanical royalty is paid on the ringtone, and proper accounts are main-tained, there should be no issue.

Indian Courts have recognized theprinciple of updating construction36

34 Huge royalties are payable for such uses depending on where the musical work isused. For example the opening credits and end credits of a film. Background useattracts a lower royalty.

35 See for eg. Boosey v Thorn EMI Video Programmes Ltd, Order dated 6th May 1981,Chancery Division and Abkco Music, Inc. v. Stellar Records, Inc., 40 USPQ 2d 1052

36 State of Maharashtra Vs. Dr. Praful B. Desai, AIR 2003 SC 2053


This right is retained bythe owner of copyrightin the musical work,

and is known in indus-try parlance the world-over, as the “synchroni-zation right”, i.e., the

right to permit thesynchronization of amusical work with a

moving picture.


as enunciated by the leading juristFrancis Bennion, which states thatin construing an ongoing Act, the in-terpreter is to presume that Parlia-ment intended the Act to be appliedat any future time in such a way asto give effect to the original intention.Accordingly, the interpreter is to makeallowances for any relevant changesthat have occurred since the Act’spassing, for example, any social con-dition, technology and so on. TheCopyright Act may therefore be inter-preted in a technology-neutral man-ner, where required.

Sound-Alikes

Some cases have arisen both in In-dia and abroad where it has been con-tended that sound-alike recordingsare an infringement of the originalsound recording even though thesame may have been validly madeunder the statutory mechanical li-censing provisions.37 Thankfully, theCourts have rejected this absurd con-tention, as each sound recording con-stitutes the recording of a separateperformance by a different set of per-formers and musicians and results ina new sound recording capable of be-ing protected under copyright.

Alterations/ Adaptations

An allied issue is what alterations tothe original musical work are permit-ted. In a truly appalling decision,38 ithas been held that changing the per-formers and singerswhile making a coverversion, amounts toan unauthorized al-teration of the musi-cal work and there-fore an infringementof copyright. As we

have seen in detail, the music com-poser only has the right to authorizethe first recording. After that, anyonecan re-record that musical work us-ing different singers and musicians,and, will own the copyright in the re-sulting sound recording. If for ex-ample the original singer of a songdied, then, by this ruling, no one willbe able to record a version. So itwould appear that all of the songssung by Mohammed Rafi’s songs cannever be sung and recorded again byanother talented singer.

We must remember the original legis-lative intent of the statutory mechani-cal licensing provisions, namely, toprevent recording monopolies, to en-courage and build the record indus-try, which in turn will throw up tal-ent by way of musicians and singers.Several countries still have the statu-tory mechanical licensing provisionssuch as the USA, Canada, Australia,Japan, Hong Kong, Singapore and soon. By ruling that only the originalsinger may perform the song again,the very object of the section wouldbe defeated.

Exactly what constitutes an alter-ation to the musical work, which isdisallowed by Section 52 (1) (j) is un-clear. If the record label making thesubsequent recording cannot alter(unless reasonably required for mak-ing the sound recording) then the re-sult will sound like a sound-alike re-

cording. That is to beexpected. This iswhat the owner ofcopyright in the firstrecording objects toin the first place,since such sound-alike recordings eat

two-year prohibition inreleasing a subsequentrecording was broughtin by the 1994 amend-

ment.

37 See for eg., CBS Records Australia Ltd. v Telmak, 1987 (9) IPR 44038 Infra n. 23

2007] A-131

into the market for his recording.Hence, the two-year prohibition in re-leasing a second or subsequent re-cording was brought in by the 1994amendment.

However, any alteration would requirea license from the owner of copyrightas it would amount to exercising theright of making an adaptation of themusical work, which is an exclusiveright. It is submitted that the Courtsmust be liberal in interpreting thisprovision, because interpreting iswhat musicians do. When a musicianrenders a song in her or his own style,sometimes the result can be far bet-ter than the original recording. Asmentioned earlier, there are more thanseventy (70) versions of the song‘Knocking on Heaven’s Door’, andthere is a lively debate as to whoseversion is better ! Without the statu-tory license, it is doubtful if such va-riety and talent could ever comeabout or be discovered.

The test for the alteration could bethat used for determining a moralrights violation. If the version won’tprejudicially affect the honour andreputation of the author, then theowner of copyright in the musical workought not to be allowed to complainof an infringement of the adaptationcopyright either.39

Remixes

The next issue that falls for consid-eration concerns remixes. In the par-lance of the music industry, a distinc-tion is drawn between cover/ versionrecordings and remixes. In the caseof the former, a brand new recordingresults and is permitted by law, whilein the case of the latter, portions of a

pre-existing recording are used. Thiswould constitute an infringement ofcopyright in such previous sound re-cording (what is known as the mas-ter right), and also in that of the mu-sical work, as it would constitute anunauthorized mechanical reproduc-tion and adaptation, for which thecopyright owner must be approachedfor a license. In some cases the remixmay also violate the moral right ofintegrity of the author, totally inde-pendent of who owns the copyright inthe musical work, be it the author, orsome other person.

The very companies who now file suitsalleging that their consent is requiredto make a cover version, would in alllikelihood have grown and developedthemselves by exercising the statu-tory mechanical licensing provisionsin the past, and would have beenaware of their affiliates doing so inother parts of the world.40 That is vir-tually certain, and very easy to as-certain. This would of course fly in theface of their present argument thattheir consent is required for makingcover versions of musical works con-trolled by them.

It is interesting to note that in theearly twentieth century, when a no-tice of intention was sent, the copy-right owner was required to providethe sender of the notice with adhe-sive labels representing the royaltyamount for each mechanical contriv-ance, and the maker of the sound re-cording was required to sell affix suchstickers on each gramophone records(or whatever form of sound recording)prior to sale, which indicated that thestatutory mechanical royalty hasbeen paid on that record.

39 For a truly fascinating discussion on this very point, please see Schott Musik v ColossalRecords, 1997 AUST FEDCT LEXIS 475

40 See Gramophone Coy. Ltd v Leo Feist, 1928 VLR 420



I would once again like to extract fromthe Telmak decision referred to ear-lier, as under: -

“54. Counsel for the respondentsubmitted that the interlocutoryrelief sought by the applicantsshould be refused upon theground that Mr Robert, Directorof Marketing and Sales for CBSRecords and CBS Productionshad known for years that therewas a sound alike market. Hefurther submitted that theManaging Director, Mr. Hanlon,was also aware of it although hehad not been called to give anyevidence. He submitted thatthe applicants had been sittingback with full knowledge for aconsiderable period and shouldbe denied relief on this ground.It did not appear, however, thatany damage or prejudice hadbeen suffered by Telmak arisingdirectly from any delayattributed to the applicantbeyond the fact that Telmakmight have been lulled intoimagining that they would notbe proceeded against in puttingforward a “sound alike”compilation.55. Counsel for the respondentalso submitted that theapplicants themselves dealt in“sound alikes” and, thereforecame to the Court withunclean hands. As I havementioned, although inevidence was a catalogue inwhich “sound alikes” werelisted for sale by one of theapplicants there was noevidence that any applicanthad sold or dealt in “soundalikes” in Australia.”41

Transcription of Musical Notations

A stand has also been taken by thoseopposed to version recordings madewithout consent, that the making ofa version recording involves reproduc-tion of the musical notations in writ-ing for that purpose, and that suchreproduction in writing, amounts tothe infringement of copyright in suchmusical works. The argument is in-deed novel, but in the opinion of thisauthor, such an argument would ren-der the very provisions of Section 52(1) (j) nugatory. The act of reducing amusical composition into writing forthe purpose of making a version re-cording under Section 52 (1) (j) mustobviously be exempted from the pur-view of infringement, in order for theright given under the Section to beexercised, otherwise the object of theSection would stand defeated.

Historically, music composers wouldearn music publishing royaltiesthrough various modes, including onsheet music. viz. the reproduction oftheir musical notations in printedform. This made it easy for third par-ties to make version recordings as thenotations were easily available andcould be seen and performed. Thispractice is not very prevalent in Indiaand the notations are not disclosed.Therefore, a person wishing to makea version recording must have an im-plied license under Section 52 (1) (j)to reproduce the said notation to thebest of his ability, in order to makehis version recordings.

In fact, the Copyright Act ought to beamended whereby the person issuingthe notice of intention may demand acopy of the musical notation from thecopyright owner. If the same is notsupplied within a specified period, the

41 Infra n. 28

2007] A-133

requester may proceed to record hisown version, and the copyright ownermay not in such case be entitled tocomplain of alterations as the samewould be inevitable without the origi-nal compositions being made avail-able. This would of course be withoutprejudice to the author’s moral rights.

Film Producers

Film producers in India woken up tothe fact that the assignment of themaster and music publishing copy-rights made by them in favour of therecord labels long ago, may have ex-pired, and are suing for return of theoriginal master recordings of OSTs.This is significant because if therights with the label have expired,persons wishing to make version re-cordings would now have to approachthe film producer rather than therecord label that has traditionally re-produced and sold the original OST.In the case of Saregama India Ltd. vSuresh Jindal,42 the Hon’ble KolkataHigh Court interpreted variousclauses of the copyright assignmentdeed and reached the conclusion thatthe period of assignment had expired.In a related case, the producers of theHindi film DON have also sued onsimilar lines.43 In both cases it wasargued by the producer, that underthe principle of contra proferentum,since the record label was in a supe-rior bargaining position and haddrafted the assignment deed, anyambiguity in the interpretation of thedeed must be in favour of the as-signor, i. e., the producer.

Music Composers

It is interesting to note that musiccomposers have also challenged therights of record labels to exploit thecopyright in their compositions.44 Inmany instances there is no evidenceto suggest that music composers wereeither under a contract of service/ forservices, or had assigned their rightsto the film producer/ record label inthe first place.45

By way of an aside, in Market Investi-gation Ltd. v Minister of Special Secu-rity, (1969) 2 QBD 173, it was notedthat:

“The fundamental test to beapplied in determining whethera person is engaged in a“contract of service” or a“contract for service” is “Is theperson who has engaged himselfto perform these servicesperforming them as a person inbusiness on his own account?”If the answer to that question is‘Yes’, then the contract is acontract for service; on the otherhand, if the answer is `no’ thenthe contract is a contract ofservice.”

Works created under a contract forservices are known as commissionedworks, and that is the subject matterof another article altogether.

If the film producer cannot establishthat he is either the first owner or theassignee of the copyright in the mu-sical works of his film, then the pre-sumption should be that the music

42 Judgment dated 25th August 2006 in GA 1756 of 2005, CS No. 130 of 200543 See Judgment dated 21st October 2005 of the Delhi High Court in Nariman Films v

Saregama India Ltd., 2005 (31) PTC 571 (Del), and related litigation before the Hon’bleKolkata High Court.

44 Javed Akhtar v Magic Mantra & Saregama India Ltd., CS (OS) 1743 of 2005 before theHon’ble Delhi High Court.

45 See for eg. Gee Pee Films Pvt. Ltd. v. Pratik Chowdhury and Others, 2002(1) CTMR 40which concerned a relationship between a composer and a label.



composer retains all his copyrights/publishing rights in such musicalworks composed by him. In fact, ifsuch is indeed the case, a composercould stop all version recordingsclaiming that the “first recording” it-self was not licensed or consented to.

Music composers ought to review alltheir arrangements with film produc-ers in the past to identify their legalrelationship with such producers. Ifit transpires that they never passedcopyright in their compositions to thefilm producer, which is worth investi-gating, the producer could not havepassed title in the compositions to therecord label. In such instances, theassignment made by such film pro-ducers to the record labels, atleast quathe underlying compositions, would bevoid. The said situation is covered bythe maxims Nemo Dat Quod Non Ha-bet – meaning, no one can give whathe does not have, or Assignatus UtiturJure Auctoris – meaning that an as-signee is clothed only with the rightof his principal.

Labels collecting statutory or otherroyalties on such compositions will beliable, inter alia, to account to thecomposer for all such royalties re-ceived. In effect, the composer, ratherthan the record label would now beable to collect royalties on the versionrecordings made under Section 52 (1)(j), which, as we have seen in muchdetail, was the whole object of the pro-vision in the first place.

As one would clearly see from theabove discussion, it is not possible tomerely look at a provision of law inisolation. One has to see the historybehind a provision to truly under-stand its import.

Finally, a word of caution. The statu-tory mechanical licensing provisionsmust not be interpreted to conflictwith: -

(a) the copyright owner’sexclusive right to authorize thereproduction of the musicalwork in a cinematograph film,(b) his right to make anadaptation, and(c) the author’s moral rights.

Keeping this in mind, the Plaintiffsalleging copyright violation by the ex-ercise of the statutory mechanical li-censing provisions by record labels,would do well to stop wasting theirresources on this nature of litigation,which is going nowhere fast, and in-stead go after the cheesy remixes andrelated music videos, where theyhave legal remedies (always providedof course that they do in fact own thecopyright in the musical works). Mu-sic composers, likewise, would be ina position to complaint of moral rightsviolations, even if they did not owncopyright in their musical works.

The Plaintiffs would also do well toexercise their rights to inspect therecords and books of account of therecord labels recording their works,which is a right given to them any-way under Section 52 (1) (j), and incase anything suspicious is found,use the procedure provided thereinand initiate a complaint before theCopyright Board for an injunctionand for payment of royalties.

In conclusion, I hope I have been ableto throw light on some of these issues,and hopefully, the answer to the ques-tion “Whose version [of the law] is cor-rect ?” has become clear.

© Nikhil Krishnamurthy Partner Krishnamurthy & Co.

Documents

The Statutory Mechanical License in India