- JUDGMENT SUMMARY: Gramophone Company of India Ltd. v. Super Cassette Industries Ltd.
- DATE OF JUDGMENT: 15 February 1995
BENCH: Jaspal Singh, J.
SUBJECT:
The present case deals with the issue of making of cover versions under section 52(1)(j) of the Act much before the 2012 Amendment.
FACTS:
The plaintiff, Gramophone Company of India Ltd. produced audio records named ‘Hum Aapke Hain Koun’. The records were produced under rights claimed to have been assigned to the plaintiff by Rajshree Production Pvt. Ltd. who were the copyright owners of the cinematograph film. The plaintiff claimed that 55 lakh audio cassettes and 40,000 C-Ds titled ‘Hum Aapke Hain Koun’ had already been sold and they wished to sell more with the result that the title ‘Hum Aapke Hain Koun’ would be associated with the plaintiff alone. The plaintiff alleged that the defendant, Super Cassette Industries Ltd. also launched an audio cassette by adopting the same title with its design, colour scheme, get up and layout deceptively identical to that of plaintiff’s one. Even a photograph of Salman Khan and Madhuri Dixit was used on the inlay cards. Hence, a suit for permanent injunction was filed by the plaintiff seeking to restrain the defendants from manufacturing, selling or distributing of audio cassettes with the title ‘Hum Aapke Hain Koun’ or from using a carton or in-lay card deceptively identical to that of plaintiff’s.
IMPORTANT PROVISIONS:
- Section 2(p), Section 52(1)(j) and Section 14 of the Copyright Act
- Section 2(p)- definition of musical work
- Section 2(w) – definition of record (omitted)
- Section 14- meaning of copyright
- Section 52(1)(j)- the making of sound recording as a permitted use (repealed by Section 31C)
ISSUES:
The main issue in question before the court was whether the records made by the defendants are protected under section 52(1)(j) of the Act?
ANALYSIS OF THE JUDGMENT:
Appellant's Contentions: The plaintiff contended that the records made by the plaintiff being of the performance of the musical work and not of the printed or written or graphically produced material, section 52(1)(j) would not apply.
The plaintiff also submitted that the records made by the plaintiff company having been made from the soundtrack related with the cinematograph film, they will not fall within the definition of the word "record" under Section 2(w) of the Act and therefore section 52(i)(j) would also not apply.
Respondent's Contentions: The defendants submitted that they were only making version recording which is permissible under Section 52(1)(j) of the Copyright Act. Also, it was done only after sending a notice in the prescribed form to the copyright owner along with the royalties at the rate fixed by the Copyright Board. The defendants contended that the work in question being a "musical work" and the defendants having fulfilled all the conditions of Section 52 (1)(j) of the Act, no complaint could have been raised and the ex parte order of injunction should be vacated.
Court's observations:
The court observed that undoubtedly the plaintiff company is the owner of the copyright and no prescribed notice of intention to make the records as well as the royalties was given to the plaintiff company by the defendant company. Since it is the plaintiff company which is the copyright owner, notice to and payment of royalties to the film producer is meaningless. Due to non-compliance of Section 52(1)(j) of the Act, the defendants could not claim protection under that proviso of the Act.
Furthermore, the court observed that “Musical work” is not simply a combination of melody and harmony or either of them. It must essentially have been “printed, reduced to writing or otherwise graphically produced or reproduced”.
“Every musical composition has a structure or shape, that is, the arrangement of individual elements to constitute a whole and that musical notation means a visual record of musical sound (heard or imagined) or a set of visual instructions for performance of music. Its main elements are pitch (location of musical sound on the scale), duration, timbre, and volume. There are various systems of notation like verbal, alphabetical, numerical, graphic and tablatures. The words "printed, reduced to writing or otherwise graphically produced or reproduced" are thus not an empty formality.”
Neither the defendants nor the plaintiff has claimed that the combination of melody and harmony in records was ever been printed, reduced to writing or otherwise graphically produced or reproduced because of which the record made by the plaintiff could not be claimed to be a "musical work" by either of the parties.
The court held that without a doubtSection 52(1)(j) permits making of version recording but it has to be read in harmony and conformity with the other provisions of the Act which grants exclusive rights on the copyright holders.
It was held that the defendants shall not use the carton or inlay card or any other packaging material a design, colour scheme, layout and get up deceptively similar to that of the plaintiffs and also the defendants cannot use the title "Hum Aapke Hain Kaun" or any combination of words which includes "Hum Aapke Hain Kaun". The alternate title must also contain a declaration inbold letters that the record is not from the original soundtrack but only a version recording with voices of different artists below it. The word "not" should be underlined.
Conclusion:
Cover versions refer to a sound recording made following Section 31C of the Copyright Act. The provision was added to the Act by the 2012 amendment. Before the 2012 amendment, making cover versions was permitted under Section 52(1)(j). The 2012 amendment brought it under the scope of statutory license from the permitted use.
