Tackling music piracy

The music industry is a business whose success depends on certainty in the legal
environment and on copyright law. This is a constant and ever-changing challenge -
the music market internationally continues to be distorted by unfair competition from
unlicensed services.

IFPI estimates, based on comScore/Nielsen data, that 20 per cent of internet users
worldwide regularly access unlicensed services. This estimate applies only to desktop-
based devices: it does not include the emerging, but as yet unquantified, threat of
smartphone and tablet-based mobile piracy as consumers migrate to those devices.

Advertising is a major source of income for unlicensed services.

Digital piracy is the biggest single threat to the development of the licensed music
sector and to investment in artists. It undermines the licensed music business across
many forms and channels - unlicensed streaming websites, peer-to-peer (P2P) file-
sharing networks, cyberlockers and aggregators, unlicensed streaming and stream
ripping and mobile applications.

The industry is responding not with a single strategy, but with a comprehensive, multi-
pronged approach. It includes: consumer education on copyright and the value of
music; working with law enforcement agencies to tackle online piracy; litigation
against online pirate services; and engaging with policymakers and legislators
worldwide to create an environment in which the music sector can grow. The industry
is also working with online stores to remove infringing apps and to ensure that apps
cannot access illegal websites.

The industry believes all parties in the digital economy have a responsibility to support
legitimate digital commerce and help tackle piracy in all its forms. Record companies
are looking work with advertisers, domain registrars, internet service providers (ISPs),
payment providers and search engines to achieve this goal. Courts around the world
are finding that the law also requires greater cooperation from online intermediaries.

Copyright Act, 1957

Section 14 states the meaning of copyright

Music composer - The rights of a music composer or lyricist can be defeated by the
producer of a cinematograph film in the manner laid down I provisions (b) and (c) of
Section 170f the Act.

Section 17 states First owner of copyright

Suit for declaration of title and permanent injunction: In a suit for declaration of title
and permanent injunction the plaintiff is claiming title to Television serial on ground
that the serial was produced by the defendant as agent plaintiff. The pleading and the
evidence showing that the defendant was not agent of plaintiff. The amount paid by
the plaintiff to the defendant was fixed price for sponsoring serial is not the cost of
production of serial. In such aspects the defendant is not liable to tender accounts to
plaintiff. The defendant was shown as producer in titles of each episodes of the serial.
The plaintiff has objected but did not take any action. It was rightly held that the
plaintiff has no title over the serial.

Section 18 states Assignment of copyright

Copyright-Renouncement of. -Kandha Guru Kavacham written by Santhanandha
Swamigal as claimed by the plaintiffs and as seen from the documents filed along with
the plaint is a literary work within the meaning of Section 2(0) of the Act. Merely
because he is a Swamigal having renounced the world, he cannot be compelled to
renounce his copyright too.

Declaration and Injunction-Prayer for-As per Section 14(1)(d)(ii) of the Copyright Act
the producer as the original owner, has the right on date of assignment in favour of
the plaintiff. The 2nd defendant cannot claim a right which was not contemplated at
the time of original assignment in the year 1961. In these circumstances for the above
reasons the plaintiff has acquired video and TV rights in respect of Tamil talkie picture
titled Pasamalar and the prayer of the plaintiff for declaration and injunction has to be
granted. Raj video Vision (vs) K. Mohanakrishnan, AIR 1998 Mad294atp. 299.

Section 51 states When copyright infringed

Ad interim Injunction-Grant of. -The rights of copyright owners are adequately
protected. Balance of convenience lies in favour of grant of ad interim injunction to the
plaintiffs and unless the defendants are restrained by grant of ad interim injunction,
irreparable injury or loss which cannot be estimated in terms of money, will be caused
to the plaintiffs. The application under Order XXXIX, Rules 1 and 2, CPC was allowed
and the defendants are hereby restrained :from manufacturing, selling or offering for
sale of the Pick-N-Carry Mobile Cranes that are substantial imitation or reproduction of
the industrial drawings of the plaintiffs or from using in any other manner whatsoever
the technical: know-how, specifications or drawings of the plaintiffs till disposal of the
suit, ECE, Ltd. v/s action Construction Equipment Pvt. Ltd AIR 1999 Del 73 at p. 83

Meaning of word "import".-In interpreting the word "import" in the Copyright Act, not
more must be taken of, of the fact that while the positive requirement of the Copyright
Conventions is to protect copyright, negatively also, the transit Trade Convention and
the bilateral Treaty make exceptions enabling the transit State to take measure to
protect

Violation of Copyright-Determination of. -There can be no copyright in an idea, subject

matter, themselves, plots or historical or legendary facts and violation of the copyright
in such cases in confined to the form, manner and arrangement and expression of the
idea by the author of the copyright worm. Where the same idea is being developed in
a different manner, it is manifest that the source being common, similarities are bound
to occur. In such a case the courts should determine whether or not the similarities are
on fundamental or substantial aspects of the mode of expression adopted in the
copyright work. If the defendant's work is nothing but a literal imitation of the
copyright work with some variations here and there it would amount to violation of the
copyright. In other words, in order to be actionable the copy must be a substantial and
material one which at once leads to the conclusion that the defendant is guilty of an
act of piracy,

Section 52 states that Certain acts not to be infringement of copyright

Sound recording copyright. -In sound recording copyright one has to comply with the
provisions of Section 51 (l)U) (ii) and one has to make payment regarding recording
and for circulating record cassettes.

Gramophone Co. of India Ltd. v. Mars Recording Pvt. Ltd. &

Anor. (Case Law)

Facts/Issue(s)
The appellant through several agreements acquired the copyright in the literary,
dramatic, musical and artistic (sound trace) works relating to various Kannada films. It
claimed to be the owners of original plates1 in respect of the abovementioned films.
The first respondent notified the appellant of its intention to make an independent
recording (with a different musician and different performer but the same lyrics) of the
three songs from the abovementioned films (viz. Kallusak-karc Kolliro, maduve
maduve maduve and chinnada hadugalu) and record one thousand audio cassettes
for each song. It duly sent the requisite royalties payable to the appellant (as
prescribed by the Copyright Board) pursuant to the compulsory licence provisions in
section 52(1)(j)(ii) of the Indian Copyright Act.
The appellant refused to give consent and so informed the first respondent. Despite
this, the first respondent went ahead to record and made the abovementioned audio
cassettes, released them in the open market and circulated them throughout the
State. The appellant proceeded to file a criminal complaint and commence civil
proceedings against the first respondent.
Before the High Court of Karnataka was, the court held that while section 52(1)(j)(i) of
the Indian Copyright Act provided that the sound recordings could have been made
with the licence or consent of the copyright owner, section 52(1)(j)(ii) provided that
the recordings could be made as long as the maker served the copyright owner the
requisite notice of intention and made payment of the prescribed royalties. Reading
the provisions disjunctively, the court held that even if the owners consent was not
obtained, the licence was deemed to have been granted.
The appellant appealed to the Supreme Court, the issue being whether the respondent
could have been granted a licence to make a cover version or a version recording
of the original recording after serving the copyright owner with the requisite notice of
intention and making payment of the prescribed royalties pursuant to section 52(1)(j)
(ii) of the Indian Copyright Act, without actually securing the licence or consent of the
copyright owner?

Ruling & Reasoning

The Supreme Court made no pronouncement on the issue. Instead, it set aside the
order made by the High Court, ordered the parties to raise the appropriate pleadings
by amendments and transferred the pending suit to the Civil Court of Bangalore.

Laws Cited
Indian Copyright Act 1957, Sections 18, 19, 20, 30, 51, 52, 52(1)
Indian Copyright Rules 1958, Rule 21

Commentary
The issue in this case is about the making of a version recording or a cover version
from an earlier sound recording. A version recording is a sound recording made of
an already published song by using another voice or voices and with different
musicians and arrangers.2 The different interpretations given to section 52(1)(j) of
the Indian Copyright Act arise from the different characterizations of the licensing
mechanism prescribed in the section, which reads in full as follows:
The following acts shall not constitute an infringement of copyright, namely:
(j) the making of sound recordings in respect of any literary, dramatic or musical work,
if-
(i) sound recordings of that work have been made by or with the licence or consent of
the owner of the right in the work;
(ii) the person making the sound recordings has given a notice of his intention to make
the sound recordings, has provided copies of all covers or labels with which the sound
recordings are to be sold, and has paid in the prescribed manner to the owner of rights
in the work royalties in respect of all such sound recordings to be made by him, at the
rate fixed by the Copyright Board in this behalf:
Provided that-
(i) no alterations shall be made which have not been made previously by or with
the consent of the owner of rights, or which are not reasonably necessary for the
adaptation of the work for the purpose of making the sound recordings;
(ii) the sound recordings shall not be issued in any form of packaging or with any
label which is likely to mislead or confuse the public as to their identity;
(iii) no such sound recording shall be made until the expiration of two calendar
years after the end of the year in which the first sound recording of the work was
made; and
(iv) the person making such sound recordings shall allow the owner of rights or his
duly authorised agent or representative to inspect all records and books of account
relating to such sound recording:
The approach taken by the defendant/respondent was that the provision in question
was not a voluntary licence but a statutory licence which did not require the consent
of the copyright owner. As the defendants cover version recording was made using
a new set of musicians, the defendant would be entitled to make the recording as long
as he had served the prescribed notice on the right holder and paid the prescribed
royalty. This view appears to be supported by the 1995 decision of Gramophone Co. of
India Ltd. v. Super Cassette Industries Ltd.3 as well as the 2003 decision of Super
Cassette Industries Ltd. v. Bathla Cassette Industries.

Section 60 states
Remedy in the case of groundless threat of legal proceeding Scope of. -A "cease and
desist" notice in a copyright action cannot particularly in view of Section 60 of the Act,
be termed to be a mere notice. Such a threat may give rise to the right to institute a
suit to counter such threat and to ask for: relief on the ground that the alleged
infringement to which the threat related was not in fact an infringement of any legal
right of the person making such Threat.

Section 62 states Jurisdiction of court over matters arising under this

Chapter
Jurisdiction of Court. -Jurisdiction of Court under Section 62 is wider that of the Court
as prescribed under Civil Procedure Code, District Court as jurisdiction within the local
limits on whose at the time of institution of the other proceedings or where there are
more than one such person, any of them actually and voluntarily resides or carries on
business or personal works for gain.

The jurisdiction for the purposes of Section 62 is wider than that of the Court as
prescribed under the Code of Civil Procedure, 1908.

Section 63 states Offence of infringement of copyright or other rights

conferred by this Act
Infringement of Copyright -Under the Act of 1957, the registration of the book with the
Registrar of Copyrights is a condition for acquiring copyright respect to it. A copyright
in a book now is secured only if it is an original Compilation and has been duly
registered according to provisions of 1957 Act.

Once it is so registered the author is deemed to acquire properly right in it. The right
arising from the registration of the book can be the subject matter of civil or criminal
remedy, so that without it the author can have no rights nor remedies though his work
may be original one. B.K. Dani v/s State of M.P

The contempt jurisdiction should be confined to the question whether has been any
deliberate disobedience of the order of the court and if the conduct of the party who is
alleged to have committed such disobedience is contumacious. The court exercising
contempt jurisdiction is not entitled to enter into questions which have not been dealt
with and decided in the judgment or order, violation of which is alleged by the
applicant.