In one of our recent posts, Divya
has crisply discussed the decision of the Calcutta High Court in the Oh
la la/ Dirty Picture controversy. In light of this controversy, I have a few thoughts to share on ownership of sound recording and underlying works.
The first limb of the issue that
needs to be understood with clarity is the very definition of “sound recording”.
Unless and until there is unanimity/ consensus as to
what constitutes a sound recording, i.e. the subject-matter of
copyright protection, there is no point in proceeding
any further with the discussion.
Sound recording is defined in
Section 2(xx) of the Copyright Act, 1957. The definition reads as follows:
"Sound Recording" means
a recording of sounds from which such sounds may be
produced regardless of the medium on which such recording is made or
the method by which the sounds are produced.
From the definition, it becomes
clear that the subject-matter of protection is the content of the recording,
namely the sounds which form part of the recording/ sounds which are embedded
in the recording, and not the recording itself. In other words, the
protection is not restricted to a specific recording that is made at a given
point in time, but is in fact conferred or bestowed upon the very
sound itself.
Critically, it must be
pointed out that sound recording is not synonymous with a song. Songs
merely form a subset of sound recording. In a song, which is also a sound
recording, the peculiarity is that its constituents, namely the
musical composition and the lyrics are themselves protected by
distinct/ independent copyrights. Consequently, a song, at its
very creation, is a combination of copyrighted works, thereby bringing it
within a broad definition of a "Derivative work".
What must be understood here is
that, merely because a song which is a sound recording is a combination of
underlying copyrighted works, it does not follow that the stand-alone copyright
in the sound recording is undermined or is inferior in anyway. In other words,
the owner of a sound recording/ owner of a copyright in a song/
producer of a cinematograph film enjoys as much protection under the
Copyright Act as the owners of underlying works. Simply put, the scope of
protection of the owner of the song extends to the combination of music and
lyrics.
The practical consequence of this
protection is that the owner of the song has the exclusive right over the said
combination of music and lyrics, the emphasis being on the
"combination". Therefore, if either of the ingredients of the
combination were to be reproduced individually, the owner of the song would be
traversing well beyond the scope of the copyright in the song. In
other words, he would be infringing the copyrights of the owner of the
underlying work.
The converse is that no third
party, including the owners of the underlying works can come together to create
the same combination as that of the original song. It follows that the caveat
applies not just to re-creation, but also extends to reproduction and copying.
This is supported by the bundle of rights conferred under Section 14(e) to the
owner of a sound recording.
The long and short of all the
above verbiage is that a sound recording has a "unitary" nature wherein
the individual constituents are complete in themselves which enjoy independent
copyrights. However, the vestation of such independent copyrights in such
ingredients does not affect the unitary nature of a sound recording or its
unitary use. Only when the use is not unitary, it results in the infringement
of copyrights in underlying works/ ingredients.
This proposition is beautifully
articulated in a decision of the Delhi High Court Super Cassettes v. Chintamani delivered in July 2011. The relevant
portion of the judgment reads as follows:
55. There is no quarrel with the
proposition that cinematograph films and sound recordings are derivative works,
which are eventually derived from original literary, dramatic, musical and
artistic works. That does not make copyright in cinematograph films and sound
recordings inferior. In Entertainment Network (India) Ltd. (supra), in para 41,
the Supreme Court has held that only because the term for holding copyright
under section 27 (in relation to a copyright in sound recording) is different
from the term of the copyright in relation to original literary, dramatic,
musical and artistic works, the same would not mean that the right of the
copyright owner in sound recordings is somewhat inferior. Even though the
copyright in relation to derived work such as cinematograph films and sound
recordings operate in a relatively restrictive field, when compared to the
copyright in original literary, dramatic, musical and artistic works, to the
extent that the said copyright in derived work is vested by the Act, the same
operates with full force and vigour. The decision of the Supreme Court in
Entertainment Network (India) Ltd. relied upon by the defendant, India TV in no
way advances their submission that cinematograph films and sound recordings are
covered by Sections 52(1)(a) and 52(1)(b) of the Act.