Ownership of "Sound Recording" and Underlying works

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.