- JUDGMENT SUMMARY: Super Cassette Industries v. Bathla Cassette India (P) Ltd.
- DATE OF JUDGMENT: 9 September 2003
- BENCH: Mukul Mudgal, J.
SUBJECT:
The present case revolves around the issue whether version recordings protected under Section 52(1)(j) can be considered as original musical work.
FACTS:
The plaintiff, Super Cassettes Industries Ltd. was engaged in manufacturing, producing and marketing of pre-recorded audio cassettes and other records under the logo T-Series. The Plaintiff produced a song which itself was a version recording of an original soundtrack of the song ‘Chalo Dildar Chalo’ from the movie ‘Pakeezah’ by giving notice and prescribed royalty to the original producer Mahal Pictures as required under Section 52(1)(j) of the Copyright Act. The plaintiff filed a suit for injunction alleging that the defendant had infringed the plaintiff’s copyright in his version recording.
IMPORTANT PROVISIONS:
Section 52(1)(j) and Section 13(3)(b) of the Copyright Act.
Section 52(1)(j) – the making of version recordings (now repealed by 2012 amendment)
Section 13(3)(b)- copyright in any sound recording shall not subsist if in making such sound recording, copyright in such work has been infringed.
ISSUES:
The main issues in question before the court were:
- Whether the plaintiff's version recording constitutes an infringement of the original musical work?
- If yes then, whether such version recordings are entitled to avail the protection under Section 52 (1) (j)?
- Whether a product of Section 52(1)(j) be considered as original musical work?
ANALYSIS OF THE JUDGMENT:
Appellant's Contentions: The plaintiff contended that in re-recording the said song they engaged musicians, singers and music conductors and has used sufficient independent skill and labour and has, therefore, has acquired the copyright in the record and the musical work so produced. The record so produced was a significantly new arrangement and/or necessary adaptation of the already existing song. The plaintiff claimed that the version recording would be entitled to separate sound recording copyright and the reproduction of the same would require the licence and permission of the copyright owner of the version sound recording, i.e., the plaintiff.
Respondent's Contentions: The defendant contended that the plaintiff itself produced a copy and it could not claim to be an owner of the original work. The defendant relied on Section 13(3)(b) and submitted that no license having been granted by the original owner of the copyright and the only claim advanced being under Section 52 (I) (j), cannot ipso facto grant any right entitling the plaintiff for independent protection for its musical works. According to the defendant, Section 13(3)(b) provides that the copyright shall not exist in any sound recording if in making such a sound recording, the copyright has been violated.
Court's observations:
The court held that a version recording made under Section 52(1)(j) is inept of acquiring any independent right as the recording itself is an adaptation of an original recording and hence lacks the essential pre-requisite for claiming copyright, i.e., originality.
The court also observed that the plaintiff had made substantial changes to the original song in its version recording and hence, the proviso to Section 52(1)(j) was also not satisfied which provides that only such alterations or omissions are permitted which are reasonably necessary for making adaptations of the recording. The alterations and omissions made in the version recording were not specified in its notice given to the original copyright owner as required under Rule 21 (2) (b). The prime alteration in the present case was the change of singer. A different orchestra was also engaged. The plaintiff has sought to bring the aforesaid changes within the scope of reasonable necessity for adaptation of the work without mentioning them to the Copyright owner of the original song.
The court opined that the change of singer is an alteration that cannot be said to be reasonably necessary for the adaptation of the original work. Such alteration is of vital importance to the copyright owner of the original recording as it affects the integrity of his work and cannot be done without the prior consent of the owner of the original recording under Section 52(1)(j) of the Act.
“The voice is the soul and essence of a vocal rendering in a sound recording. Invariably the vocal performance is remembered not only by the melody but also by the identity of the singer. In my view, such alterations fall under the proviso to Section 52 (1) (j).”
Since the plaintiff has failed to specify the alteration under Rule 21(2)(b), it, in any event, can not avail any protection under Section 52(i)(j). Even if Section 52(1)(j) was observed by and available to the plaintiff, such a recording is only entitled to protection against an action by the original owner alleging copyright infringement. Such a version recording produced under Section 52(1)(j) cannot, in any event, get independent rights capable of claim against other alleged infringers.
Moreover, on comparing the original song with the plaintiff’s version recording, both the songs are strikingly similar and the version recording is almost a duplication of the original songs.
The court held that section 52(1)(j) was to be read in consonance ofthe prohibition imposed under Section 13(3)(b). Therefore, anyone whose version recording violates Section 13(3)(b) of the Act cannot avail the protection under Section 52(1)(j) of the Act. Therefore, where no license has been granted by the original copyright owner and the only claim put forward is under Section 52(1)(j), it cannot ipso facto grant any right to such a person for independent protection for its musical works.
Conclusion:
If there is any substantial alteration made in the original sound recording, the proviso to Section 52(1)(j) which requires only those alterations to be made which are reasonably necessary would be violated and would result in infringement. Section 52(1)(j) has now been repealed by the addition of Section 31C by the 2012 amendment.
