HOME TAPING OF SOUND RECORDINGS

A Project submitted in partial fulfilment of the course INTELLECTUAL

PROPERTY LAWS, 7th SEMESTER during the Academic Year 2019-2020

SUBMITTED BY:
Shreya Sinha
Roll No. - 1648
B.B.A LL.B

SUBMITTED TO:
Prof. Dr. S.C. Roy
FACULTY OF INTELLECTUAL PROPERTY LAWS

AUGUST, 2019
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR,
MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“Home Taping of Sound Recordings” submitted at Chanakya National Law University; Patna is
an authentic record of my work carried out under the supervision of Prof. Dr. SC Roy. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

(Signature of the Candidate)

SHREYA SINHA
Chanakya National Law University, Patna

i
 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my heart to
all those who have helped me to put these ideas, well above the level of simplicity and into
something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered Intellectual
Property Laws teacher Prof. Dr. SC Roy whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to him. Thanks are also due to
my parents, family, siblings, my dear friends and all those who helped me in this project in any
way. Last but not the least; I would like to express my sincere gratitude to our Intellectual
Property Laws teacher for providing us with such a golden opportunity to showcase our talents.
Also this project was instrumental in making me know more about Home Taping of Sound
Recordings. This project played an important role in making me understand more about the
relation between copyright and its infringement. It was truly an endeavour which enabled me to
embark on a journey which redefined my intelligentsia, induced my mind to discover the
intricacies involved in the competency of the people in home taping of sound recordings.
Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- Shreya Sinha
- 7th Semester
- B.BA LL.B

ii
 TABLE OF CONTENTS

Declaration………………………………………………......……......……………......………….i

Acknowledgement……………………………………………........……......…………………….ii

Table of Contents…………………………………………………........……......……………….iii

Aims and Objectives……………………………………………………......…....…………….…iv

Hypothesis......................................................................................................................................iv

Research Questions........................................................................................................................iv

Review of Literature....................................................................................................................iv-v

Research Methodology............................................................................................................…...vi

1. Introduction………………………………………….......………………….....…….....……….1-2

2. The Copyright Amendment Act, 2012...........................…...................................................…...3-4

3. Distinguishing Between Musical Works and Sound Recordings.................................................5-6

4. Performing the Work in Public.................................................................................….......….....7-8

5. Copyright Societies and Licensing......................................................................................…...9-10

6. Sound Track of a Cinematographic Film: Rights of Composer, Lyricist and Producer..........11-13

7. Conclusion................................................................................................................................14-16

Bibliography……………………………...………………………….....……...……...............…17

iii
 AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. To study the problem and legal status of home taping of sound recordings.
2. To study the legal provisions related to home taping of sound recordings.
3. To study various cases related to home taping of sound recordings.

HYPOTHESIS

The Researcher has considered the following hypothesis:

1. Uncertainty as to authorship and ownership contravenes the public policy of making
copyrightable works available to the public.

RESEARCH QUESTIONS

1. What are the problems related to the legal status of home taping of sound recordings?
2. What are the legal provisions related to home taping of sound recordings?
3. What are the various cases related to home taping of sound recordings?

REVIEW OF LITERATURE

According to Moorthy (2000), the developments in the information technology have much
helped libraries during the day to day operation. However, this has brought a number of issues
and concern. One of the major issues which concerns publishers, authors and librarian with
respect to the copyright. The development in the electronic publishing, communication and
computer fields have further complicated the situation. The vulnerability of digital information
for manipulations makes the problem all the more serious problems relating to copyright of
electronic information resources on the internet; multimedia works, software, databases and
copyright enforcement have been dealt.

iv
According to Mittal (2006), the invention of the printing press, tape recorder, VCR and the most
recent example of such a technological development is the Internet which poses a greater
challenge to the copyright than the photocopier and the VCR, etc. In the digital world, it has
become extraordinary cheap and easy to store, reproduce, manipulate, distort and distribute any
of the digital products.
According to Long (2006) the importance of libraries and archives of the copyright protections
granted in 1976 US Copyright Act cannot be overstated. Librarians are interested in these issues,
especially in the digital age, because they are so fundamental to library work. Copyright is at the
heart of library work. Without the special provisions in the copyright act, libraries would not be
able to loan materials. Libraries and archives would be unable to preserve without special
provisions written into the Copyright Act.
According to Cornish (2001), patents give temporary protection of technological inventions and
registered designs to the novel appearance of mass produced goods, copyright gives longer
lasting rights in, for instance, literacy, artistic and musical creations, trademarks are protected
against initiation so long at least as they continue to be employed in the trade. Srivastava (2001)
discussed the legal aspects of Intellectual Property Rights and information technology products.
It is shown that the fastest growing electronic medium causes an increased change of
infringement of copyright. The inadequacy of existing Indian Copyright Amendment Act also
discussed. Library professionals are concerned with copyrights as they work closely related to
acquisition, storage and retrieval of information. The author discusses the copyright issues in
depth in his book.
Reddy (2010) aims to analyses the Indian laws related to copyright, concept of infringement of
the Copyright Act and exceptions to the same particularly with regard to fair use or fair dealing
of copyright. Creative work pertaining to literary, dramatic, musical, artistic, cinematographs and
sound recordings is protected under intellectual property right through copyright protection.
Copyright is a unique kind of intellectual property importance of which is increasing day by day.
It does not fall in the category of industrial property. In fact, copyright was the first intellectual
property, which received legal protection in the world. Copyright Act, unlike patent and trade
secret, protects the expression of an idea rather than the underlying idea itself.

v
 RESEARCH METHODOLOGY

For this study, doctrinal research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate form,
essential for this study.
The method used in writing this research is primarily analytical.

vi
 INTRODUCTION

As and when a new song comes up, one can find a plethora of cover songs by various artists on
the internet. Cover songs and remixes of popular and hit songs have lately become a means to get
recognition and gain popularity. It’s an apt way of reaching out to millions of listeners globally
and achieve fan-following to revolutionize their career. The cover versions generally retain the
original lyrics and musical arrangements but are sung in the author’s own stylistic originalities
and nuances. While there might be a lot of advantages to this, there might be lots of copyright
issues and breaches that an artist might unknowingly commit. The question is whether such
practices lead to infringement of copyright provisions in India or not, whether by making covers
and remixes, artists are violating the copyright of the original singer(s), lyricist and composers.
Hence, this article addresses those issues and gives an insight to the existing legal norms which if
taken care of in the beginning can help prevent a lot of hassle later. Artists need to be mindful of
these prevalent copyright laws while making, posting and selling covers to ascertain that they are
not contravening the confines that law has created.
The expression copyright refers to the main act which, in respect of literary and artistic creations,
may be made only by the author or with his authorization. That act is the making of copies of the
work (WIPO). Musical compositions with or without words are included in the list of literary and
artistic works given in the Berne Convention for the Protection of Literary and Artistic Works.
In a 1952 issue of the Chicago Daily Tribune, journalist Will Leonard described the idea of
covering a song as “trade jargon meaning to record a tune that looks like a potential hit on
someone else’s label”. There are also several concerns on the part of the original music
composers that companies making cover versions, remixes and music videos of their
compositions are debasing the compositions. In the case of The Gramophone Company of India
Ltd vs. Super Cassette Industries Ltd1, the Hon’ble Judge has remarked, “What is a version
recording? A version recording, we are told, is a sound recording made of an already published
song by using another voice or voices and with different musicians and arrangers. Version
recording is thus neither copying nor reproduction of the original recording”. Infringing copy”
with reference to a sound recording, which is relevant, is defined under Section 2(m) (iii), thus:

1
58 (1995) DLT 99

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“infringing copy” means,- in relation to a sound recording, any other recording embodying the
same sound recording, made by any means. Section 13 defines the works in which copyright
subsists. It provides that copyright shall not subsist in any sound recording made in respect of a
literary, dramatic or musical work, if in making the sound recording; copyright in such work has
been infringed. Section 14 specifies the content of the rights comprised in the “copyright.”
Section 14(e) of the Copyright Act deals with sound recordings. An owner of copyright in sound
recordings would have the following exclusive rights:
– to make any other sound recording embodying it;
– to sell or hire any copy of the sound recording; or
– to communicate the sound recording to the public.

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 THE COPYRIGHT AMENDMENT ACT, 2012

The Copyright Amendment Act, 2012 brought in a phenomenal change with respect to the rights
of music directors, lyricists and performers. Javed Akhtar’s maiden speech in Rajya Sabha for
Amendment to Copyright Bill 2010 made a very persuasive speech and was instrumental in
lobbying for the amendments. Section 31C of the Copyright Amendment Act, 2012 deals with
statutory licenses that can be obtained for making a sound recording in respect of any literal,
dramatic or musical work. “Cover version” means a sound recording made in accordance with
the above-mentioned section. There can be two forms of licenses that legalise this action i.e.
Statutory licenses and General licenses. While a statutory license is governed by the provisions
of this Act, a general license is made on the terms and conditions as agreed upon between the
licensor and licensee. This section also lays down various other rules which one has to abide by
while making a cover. The person making the sound recordings should give prior notice of his
intention to make the sound recordings. Such sound recordings shall be in the same medium as
the last recording unless the medium of the last recording is no longer in current commercial use.
Copies of the covers/labels have to be disclosed to the owner of the sound recording prior to the
release of the cover version. The cover version should explicitly mention that it is a cover
version of the original sound recording. There should be no alteration of the sound record unless
it is technically necessary. Statutory licenses are not mandatory. If an artist wants to make a
cover version before the expiry of 5 years of the original work or wants to negotiate on the point
of royalty, he has the option of acquiring a general license. The production of covers without the
consent of the owner of the original song amounts to copyright infringement. The owner is
entitled to civil remedies like an injunction, etc. when such violations occur.
Some cases have arisen both in India and abroad where it has been contended that sound-alike
recordings are an infringement of the original sound recording even though the same may have
been validly made under the statutory mechanical licensing provisions. Fortunately, this illogical
contention has been rejected by the courts; each sound recording constitutes the recording of a
separate performance by a different set of performers and musicians and results in a new sound
recording capable of being protected under copyright. In Mars Recording Private Limited v.
Saregama India Limited, it has been clearly stated that “It would not be an infringement of
copyright in a sound recording if the same has been made with the consent or by license of the

3|Page
copyright owner. If a negotiated consent is not possible, a person becomes legally entitled to
make a sound recording of such a copyrighted sound recording by recourse to the procedure
prescribed and subject to the conditions that would apply. It is to be emphasized that it, however,
does not entitle the person to make a copy or a duplication of the sound recording. But is entitled
to produce a “version recording”, which is a fresh recording using a different set of performers,
musicians and artists and facilities. It would be a “sound alike” recording or a close imitation, of
the original sound recording and would not be an infringement of the copyright.” As long as the
cover versions are not intended to be economical in purpose, they can’t be violative of copyright
laws.

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 DISTINGUISHING BETWEEN MUSICAL WORKS AND SOUND
RECORDINGS

In general terms, copyright protection extends to “original works of authorship fixed in any
tangible medium of expression.” Pursuant to Section 102 of the federal Copyright Act (“the
Act”), works of authorship include, among other categories:
1. Musical works, including any accompanying words; and
2. Sound recordings.
As these two categories often overlap, understanding the difference between “musical works”
and “sound recordings” can be crucial to understanding the scope of copyright protection
afforded to each.
Copyright Protection for Musical Works
First, federal copyright law provides for copyright protection in “musical works, including any
accompanying words.” The U.S. Copyright Office has interpreted “musical works” to include
“both original compositions and original arrangements or other new versions of earlier
compositions to which new copyrightable authorship has been added.”
Although copyright protection is usually automatic from the moment a work is created,
registering a work with the Copyright Office is a better method of providing others with notice,
and can provide more remedies for the copyright owner in case of infringement. The copyright
owners of musical works can register their work with the Copyright Office by completing the
Performing Arts application form (Form PA), which must be accompanied by a “deposit” of the
work to be registered. Depending on the type of work to be registered, the deposit requirement
varies from either one or two copies of the “best edition” of the work.
“Best Edition” Requirement
The Act requires that deposits be of the “best edition” of the work. The “best edition” is usually
the edition that the Library of Congress determines to be “most suitable for its purposes.”When
two or more editions of the same work have been published, the “best edition” is typically the
one of the highest quality. For example, the Library of Congress considers compact digital disks
to be the “best edition” of a phonorecord, as compared to a vinyl disk or a tape. If the work has
only been published online, there are specific rules about the best edition of the work.
Copyright Protection for Sound Recordings

5|Page
The Act also provides copyright protection for “sound recordings,” which are defined as “works
that result from the fixation of a series of musical, spoken, or other sounds.” Sound recordings
are typically “fixed” in “phonorecords,” which are the material objects in which sounds are
fixed, such as tapes and disks (among other formats). The author of a sound recording is the
performer, or the record producer, or both.
The author of a sound recording can register the work with the Copyright Office by completing
the Sound Recordings application form (Form SR). When the same person owns the copyrights
in both a musical work and a sound recording fixed in a phonorecord, Form SR may be used to
register both. There is also a deposit requirement to register a copyright claim in a sound
recording, which varies from either one or two copies of the best edition, depending on several
factors.

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 PERFORMING THE WORK IN PUBLIC

Performing the Work in Public Halsbury explains the meaning of ‘in public’ as follows: ‘The
question whether a work is performed or a sound recording, film or television broadcast seen or
heard in public is solely one of fact. In determining this question, the following considerations
and tests have been applied: whether there has been admission of any portion of the public with
or without payment to the injury of the author, i.e. to say, of the class of persons who would be
likely to go to a performance if there was a performance at a public theatre for profit, or whether
the performance was private or domestic, a matter of family or household concern only.’ Any
performance which is not domestic or quasi-domestic will be regarded as in public even if only a
few members of the public are present or that no charge for admission was made.2 Performances
by teachers or pupils in general, are not performances in public.3 Performing a literary, dramatic
or musical work in public without the consent of the copyright owner or without procuring
licence of the work is an infringement of copyright in that work [Section 14(a)(iii) of the
Copyright Act]. The expression ‘in public’ or ‘public’ is not defined in the Act. The public must
mean the ‘general public’ and performance before a ‘closed group’ however large in numbers
may not necessarily constitute performance in public.4 Any performance of Indian or even
international music, in public places or commercial establishments such as hotels and resorts,
restaurants, bars, pubs, discotheques, cruise liners, cinema halls, shops, offices, and so on,
rendered without first having obtained a licence from the copyright owner or the respective
copyright society (discussed later) constitutes an infringement of copyright under the Copyright
Act, 1957. It has been held that programmes of music and gramophone records played at a
factory using loudspeakers for the benefit of the workers (no strangers present),5 and playing of
records over loudspeaker more or less continuously in a record shop to increase the shop owners’
profit6 were performances in public. Similarly playing music on a loudspeaker in a private room
adjoining a public restaurant in such a manner that the music was audible to the public in the
restaurant was held as a performance in public and constituted infringement of copyright.7

2
Harms (Inc) Ltd and Chappell & Co Ltd v Martans Club(1927) 1 Ch 526 at p. 532, 533
3
Halsbury’s Laws of England, Vol 9, 4th edn (Butterworths, London), para 918
4
Earnest Turner Electrical Instruments v Performing Rights Society (1943) Ch 167
5
Performing Rights Society v Harlequin Record Shop (1979) 2 All ER 828 at p. 834
6
Performing Rights Society v Cameo (1936) 3 All ER 557
7
Performing Rights Society v Hammonds’ Bradford Brewery (1934) Ch 121

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Switching on a radio in a public place is a separate performance in public different from that
given by the original performer.8 If a person by means of an installation makes audible the
performance in a private place to a larger number of persons other than the domestic circle, it
amounts to infringement of copyright by performing the work in public.9 A performance may be
‘in public’ notwithstanding that it is given in a place not habitually used for dramatic
entertainment.10 Persons who are responsible for broadcasting a performance and who grant
licences that entitle listeners to perform the broadcast in public are liable for infringement as
persons who have authorized a public performance11 and there are grounds for saying that in any
case a broadcast to private listeners only is in public although the audience is not in one place.12

8
Sahni Ajay, Lal’s Commentary on the Copyright Act, 1957 4th edn (Delhi Law House, New Delhi), 2006, p. 422
9
Mellor v Australian Broadcasting Commission (1940) AC 491
10
Messager v British Broadcasting Co Ltd (1927) 2 KB 543
11
The Swedish Supreme Court made these holdings in three different cases, Henry Olsson, Selected court cases in
the field of copyright, WIPO National Workshop for Judges, WIPO/IP/JU/RYD/04/3 & WIPO/IP/JU/RYD/04/4
12
Performing Rights Society v Hawthorn’s Hotel (1933) Ch 855

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 COPYRIGHT SOCIETIES AND LICENSING

Public performance licence is a legal necessity under the Copyright Act, 1957 for playing music
in any format: live performance or playing recorded sound tracks in any public place or
commercial establishments. The royalty share, which the government receives by issuing the
licence, goes to the music creators and publishers.13 Playing music in public without a licence is
an offence under Section 51 of Copyright Act, 1957 and attracts a heavy penalty extending upto
Rs 2 lakhs fine or three years of imprisonment or both.
Alternatively, such licences can also be awarded by copyright societies, which are associations
formed with the object of working for the interests of its members. For a radio station playing
hundreds of songs in a day, it would be a grueling task to secure licences for each song from its
respective copyright owner. Hence, these societies purport to simplify the process by granting
licenses on behalf of the copyright owner as his/her assignee. The copyright owner/author
assigns some of his economic rights to the copyright society(ies) by entrusting it/them to work in
his/her benefit and sharing the royalty. Some of the registered copyright societies in India are
Society for Copyright Regulation of Indian Producers for Film and Television (SCRIPT), The
Indian Performing Right Society Limited (IPRS) and Phonographic Performance Limited (PPL).
Explaining the importance of such societies in the matter of Federation of Hotels and Restaurants
Association of India v Union of India and Ors28 , the Delhi High Court observed that the owners
of copyright are fully entitled to reap rewards of their creativity and genius. The copyright and
performing societies are an amalgamation of conglomeration of individual/owners who are fully
entitled to claim the highest premium for enjoyment of the fruit of their labour or intellect.28 The
court reaffirmed that the amendments carried out in the Copyright Act, 1957 are calculated to
guarantee fair returns to the authors, composers or lyricists or sound recorders. There is no
absolute, untrammeled or unbridled right existing or granted to public at large to enjoy fruits of
such creation without payment in recompense of for payments, which the public may be willing
to give.14
A copyright society is a registered collective administration society. Such a society is formed by
copyright owners. The minimum membership required for registration of a society is seven.

13
http://m.timesofindia.com/PDATOI/articleshow/12508867.cms
14
Federation of Hotels and restaurants Association of India v Union of India and Ors, AIR, 2007, Delhi 137

9|Page
Ordinarily, only one society is registered to do business in respect of the same class of work. A
copyright society can issue or grant licences in respect of any work in which copyright subsists
or in respect of any other right given by the Copyright Act.15 A copyright society may: (1) Issue
licences in respect of the rights administered by the society, (2) Collect fees in pursuance of such
licences, (3) Distribute such fees among owners of copyright after deductions for the
administrative expenses.30

15
http://copyright.gov.in/Documents/Copyright%20Societies.pdf

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 SOUND TRACK OF A CINEMATOGRAPHIC FILM: RIGHTS OF
COMPOSER, LYRICIST AND PRODUCER

The right to record the music as a part of the sound track in a film is known as ‘the
synchronization right’, because it is performed in synchronization with the film. This right is
included in the right to reproduce the work in any material form.16 The Copyright (Amendment)
Act, 2012 makes special provisions for those whose work is used in films or sound recordings
(e.g. lyricists or composers). Rights to royalties from such works, when used in media other than
films or sound recordings, shall rest with the creator of the work and can only be assigned to
heirs, or copyright societies which act in their interests. Another proviso to Section 18(1)
provides that the author of a literary or musical work incorporated in a cinematographic film or
sound recording shall not assign the right to receive royalties in any form other than as a part of
the film or sound recording. Also, a new sub-section (9) to Section 19 has been added which
provides that no assignment of copyright in any work to make a cinematographic film or sound
recording shall affect the right of the author of the work to claim royalties in case of utilization of
the work in any form other than as part of cinematographic film or sound recording. Despite
these amendments in the provisions, there are still issues that need resolution. For instance,
consider a case where a producer has the right to assign the sound recordings in the film to the
music companies, as the producer has entered into appropriate agreements with the authors and
music composers. Writers, composers and owners /publishers of musical works who are
members of IPRS, assign all the rights in their musical works to it. Similarly, music companies
assign all their rights in sound recordings to PPL. Typically, there are three works in the song,
namely the lyrics (literary works), the music (musical works) and the recording of the literary
and musical works (the sound recording). As of today, suppose a person wants to broadcast or
webcast a song of a Hindi film, one is required to obtain two licences: one from IPRS for the
lyrics and the musical works, and from PPL for the sound recording. This position has been
affirmed by the Madras High Court in the case of The Indian Performing Rights Society Limited
v Branch Manager, The Muthoot Finance Pvt Ltd.17 The issue is that if the sound recording,

16
The Indian Performing Rights Society Limited v Branch Manager, The Muthoot Finance Pvt Ltd, 2010 (42) PTC,
752 (Mad)
17
44 http://www.nishithdesai.com/hollywood-bollywood/media-chap-5-E.htm#

11 | P a g e
which includes the musical and literary works, has already been assigned to PPL, the person
should be able to obtain the license from PPL directly to broadcast the sound recording without
approaching IPRS. PPL can internally have a mechanism to distribute the royalties to IPRS, if so
required. An alternate and more effective approach, wherein the person approaches only IPRS
for the rights in the musical and literary works may also hold good. The practice of obtaining two
separate licences to broadcast only one song is a burden on the broadcaster, which results in
added expenses and the same needs to be amended.18

Copyright licences may be either voluntarily entered into by the copyright owner (i.e. the
licensor) or be imposed upon him. If the licence is not voluntarily given by the copyright owner,
it is referred to as a nonvoluntary licence, and may assume the form of either a compulsory
licence or a statutory licence.19 Many countries have provided for compulsory licences in their
copyright legislation, particularly in those fields of copyright where modern technology has
created new uses for works giving new rights which can only be effectively exercised by bulk
licencing through a collecting society or under a compulsory licence system.20 However, the
subject of provision of compulsory licensing has been the subject of enormous litigation tackling
the controversies between the broadcasting organizations such as FM Radios and the copyright
societies or the copyright owners with regard to fixing of royalties/licensing fees, etc. The
Copyright Amendment Act, 2012 has settled the law in this regard. The new Section 31D under
the Act deals with statutory licensing of the broadcast of literary works, musical works and
sound recordings.21 Under this section, a broadcasting organization, which desires to
communicate to the public a published literary work, musical work or sound recording; may do
so if the communication is by way of broadcast or by way of performance. The broadcasting
organization is required to give prior notice to the copyright owner stating the duration and
territorial extent of the broadcast. The names of the authors and principal performers of the work
must be announced with the broadcast. The broadcasting organization is proscribed from making
any fresh alteration of any literary or musical work unless that alteration is (i) technically

18
http://copyright.lawmatters.in/2010/05/non-voluntary-copyright-licences.html
19
Stewart Stephen M and Sandison Hamish, International Copyright and Neighbouring Rights, 2nd edn
(Butterworths, London), 1993, p. 75
20
It states: ‘ (1) Any broadcasting organization desirous of communicating to the public by way of a broadcast or by
way of performance of a literary or musical work and sound recording which has already been published may do so
subject to the provisions of this section.’
21
http://entertainment.howstuffworks.com/music-licensing2. htm

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necessary for the purpose of broadcasting, or (ii) comprises only a shortening of the work for the
convenience of the broadcast, or (iii) has been made with the consent of the copyright owner(s).
The broadcasting organization must pay royalties to the copyright owner in each work at the rate
fixed by the Copyright Board, and the Copyright Board may require that these royalties be paid
in advance. It is required to maintain records and books of account and to render to the copyright
owners such reports and accounts in accordance with the rules associated with the Act. The
broadcasting organization is also required to allow the copyright owner or his duly authorized
agent/representative to inspect all records and books of account related to the broadcast.22 The
above amendment has been brought in to facilitate access of the works to the growing
broadcasting industry. Prior to this amendment, access to copyright works by broadcasters was
dependent on voluntary licensing. As a result unreasonable terms and conditions were being set
by the copyright owners.23 Hence, one needs a licence and proper rights to perform the work in
public. The following are some of the examples where one has to obtain rights:

• Playing songs at a radio station

• Playing background music at restaurants
• Using songs in commercials
• Making toys which plays a song when a child pushes a button
• Making a video production which includes a song as background music.

22
45 http://copyright.lawmatters.in/2010/05/non-voluntary-copyright-licences.html
23
Thomas Zakir, Overview of changes to the Indian copyright law, Journal of Intellectual Property Rights, 17 (4)
(2012) 324-334

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 CONCLUSION

The federal courts have repeatedly emphasized the importance of predictability in copyright
ownership because uncertainty regarding the ownership of rights can significantly impair their
value and marketability. By limiting the marketability of a work, this uncertainty also limits the
ability of the public to have access to those works. Thus, uncertainty as to authorship and
ownership contravenes the public policy of making copyrightable works available to the public.
The importance of predictability is reflected in the copyright statutes themselves. The provisions
dealing with authorship and ownership of copyrights are designed to give authors adequate
notice of when they are surrendering valuable rights. Examples of this policy include the writing
requirement for copyright transfers, the writing requirement for contractual works-made-for-hire,
and the high degree of specificity that is required for moral rights waivers. A strong argument
can be made that the work-made-for-hire definition of § 101 is drafted in terms broad enough to
encompass many commercial sound recordings as contributions to collective works. Treating
sound recordings as works made for hire arguably serves the purpose of providing greater
certainty as to the ownership of copyrights, since it eliminates the uncertainties that accompany
joint authorship. The legislative histories of the 1976 Act and the 1971 Sound Recordings Act,
however, do not support the conclusion that Congress intended to treat sound recordings as
contractual works made for hire. Interpreting “collective works” to include sound recordings thus
runs afoul of the certainty principle, since including sound recordings in that definition extends
work-made-for-hire status to a large category of works that one reasonably would have expected
Congress to have mentioned specifically either in the work-made-for-hire definition or its
legislative history—especially in light of the specific references to motion pictures and other
distinct categories of copyrightable works in the 1976 Act, the accompanying House Report, and
other components of its legislative history.24 What do performing artists lose if they are denied
termination rights? Although most sound recordings will have little economic value thirty-five
years after their creation, some (such as the Beatles’ recordings) will have substantial long-term
economic value, and others may have significant noneconomic value to the artists or their
families. In the latter case, even though the cost of reacquiring the copyright in a sound recording

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might be modest, subsequent assignments and corporate successions could make it difficult for
recording artists or their families to locate the owner of the sound recording copyright so many
years after the recording’s release. Termination rights would eliminate this problem. Even if
termination rights in sound recordings are recognized, however, and even if termination can be
effectuated through accurate identification of the authorship entities in the case of joint works, an
artist who wishes to terminate those rights will not necessarily be allowed to reclaim rights in an
entire marketable work. To the extent that record label employees made creative contributions,
their contributions would still be owned by the record label, even after termination, with respect
to the other parties’ contributions. And, as noted earlier, performers who rendered their services
through loan-out corporations would not be eligible to invoke termination rights at all. Thus, the
benefits of recognizing termination rights in sound recordings may not be as significant as their
advocates have suggested, and in most cases would not outweigh the practical problems created
by granting such rights because of the difficulty of identifying the “authors” who are entitled to
exercise those rights. and then separating the terminable contributions from the nonterminable
ones (those attributable to employees). Finally, as noted earlier, record labels have a potential
“end run” around termination rights if they choose to create musical recordings as audiovisual
works rather than sound recordings and can use this same strategy to divest performer-
songwriters of their authorship rights in musical compositions as well. To maximize
predictability and marketability in copyrighted sound recordings, it would be helpful to eliminate
the complexities of joint authorship as they affect copyright duration and termination rights. The
duration question is easily solved by assigning sound recordings a fixed term, such as the term of
95/120 years that applies to works made for hire. It would be far more difficult, however, to
preserve the essence of termination rights in sound recordings while eliminating the
complications of joint authorship in such works. In addition, the benefit of preserving those
termination rights is dubious, because most sound recordings will have little economic value
after thirty-five years, and because the nonterminable contributions of record label employees
and loan-out employees may make it difficult for contributors other than songwriters to
reassemble a marketable post-termination copyright. Congressional inaction is not an appropriate
solution to the problem of determining whether sound recordings are works made for hire.
Through self-help, record companies can take advantage of new technologies to ensure that all of
their future recordings are works made for hire, and thereby divest composers of their authorship

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rights, and possibly obtain public performance rights in musical recordings as well. Rather than
permit the recording industry to achieve numerous endruns around copyright law and policy,
Congress should act promptly to resolve these issues through legislation. It may well serve the
best interest of the public, and impose little detriment on recording artists, to eliminate
termination rights in sound recordings, either through sui generis legislation or through
amending the work-made-for-hire definition to include “specially ordered or commissioned”
sound recordings. Congress, however, also has the opportunity to protect against any further
erosion of the termination rights of songwriters whose works are utilized in sound recordings,
and to restore the termination rights of songwriters whose works are utilized in audiovisual
works. Because, unlike the termination rights of recording artists, the termination rights of
songwriters are likely to have significant value and are unlikely to be encumbered by complex
joint authorship questions, protecting and, indeed, broadening those rights will not impair the
marketability of those musical compositions, nor will it impair the marketability of any
derivative works (such as motion pictures) that incorporate those compositions because those
works are already protected under the derivative works exception. Accordingly, any legislative
proposals regarding the authorship of sound recordings must be accompanied by careful
consideration of the rights of songwriters. It has been thirty-five years since Professor Benjamin
Kaplan, in his landmark essay, An Unhurried View of Copyright, criticized the 1966 copyright
revision bill for failing to address the ownership of sound recording copyrights: “[T]he revision
bill takes the ostrich tack of omitting to say who is to be the presumptive owner of the
copyright—performer, manufacturer, or both.” Thirty-five years is a long time, even for an
ostrich

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 BIBLIOGRAPHY

1. Bainbridge, David, Intellectual Property, 5th ed., New Delhi: Pearson Education, 2003
2. Basic Principles of Patent Law, Paper-1 Basic Principles & Acquisition of Intellectual
Property Rights, Bangalore: CIPRA National Law School of Indian University
3. Bentley, L. and Sharman, B., Intellectual Property Law, 2nd ed., New York: Oxford
University Press, 2004
4. Cornish, Llewelyn, Aplin, Intellectual Property: Patents, Copyrights, Trademarks and
Allied Rights, 5th ed., London: Sweet & Maxwell, 2003
5. Cornish, W.R., Intellectual Property: Patents, Copyrights, Trademarks and Allied Rights,
3rd ed., New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2002
6. Narayanan, P., Intellectual Property Law, 3rd ed., New Delhi: Eastern Law House, 1998
7. Taraporevala V.J., Law of intellectual Property, Mumbai, 2005
8. Verma, S.K. and Mittal, Raman, “Intellectual Property Rights-A Global Vision”, New
Delhi: Universal Law Publishing Co. Pvt. Ltd., 2002
9. Reddy, G.B., Intellctual Property Rights and the Law, 5th ed., Hyderabad: Gogia Law
Agency, 2005

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