Nikhil Krishnamurthy, everyone’s favorite Indian practitioner/flamethrower, recently posted an article on the compulsory license in musical compositions. I wrote about one of Mr. Krishnamurthy’s other papers last week.

Apparently, Indian courts have split on whether an artist can cover a song under the Copyright Act’s compulsory license provision without first obtaining permission from the original author (provided that an authorized version of the song has been released for two-years). The relevant part of Section 52(1)(j) of the Indian Copyright Act states as follows:

The following acts shall not constitute an infringement of copyright, namely: (j) the making of sound recordings in respect of any. . . musical work, if . . .(ii) the person making the sound recordings has given 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. . . (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. . .

Mr. Krishnamurthy contends that permission of the original author isn’t required for a subsequent musician to record a cover, provided that an authorized version of the original was released two-years earlier. First, Mr. Krishnamurthy’s argues that Section 52(1)(j) would be redundant if permission were always required. Secondly, Mr. Krishnamurthy makes the historical argument that Indian copyright law has featured a compulsory license provision since the Copyright Act of 1957 incorporated the scheme of the English Gregory Report (report of the Copyright Committee of 1952).  Mr. Krishnamurthy’s states that, absent any evidence to the contrary, there should be a presumption that Parliament didn’t intend “drastic” changes to a policy the Indian Copyright Act has contained since its foundation.

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I find the idea that it would be financially advantageous for the Indian recording industry to limit  covers interesting, even if it’s only for a period of two years. There is no comparable holding-period under American copyright law. This seems like the type of limitation that the American recording industry could have pushed Congress to enact years ago if there was any impetus. This brings us to my favorite topic: how it may be beneficial for individual countries to have differing copyright structures, and inversely, how differing copyright structures may foster varying performance practices.

I can think of a number of reasons for why the Indian recording industry might want a two-year exclusivity period, when it wouldn’t be called for in the U.S.:

• First, as suggested by Mr. Krishnamurthy in his article, the Indian music industry is centered around Bollywood musicals.  Given that film is central to marketing, it’s not unreasonable to think that songs in India are more important to a recording’s success than they are in the U.S.  I.e. in India, songs are the stars; in the U.S., performers have a comparatively larger effect than songs on album sales.
• The absence of a performance right in sound recordings under U.S. copyright law provides a disincentive for American musicians to make cover recordings.  Unless an American musician records songs that they write, they are closed out of radio related royalties.  Indian copyright law grants performance rights to both composers and performers so that, even if an Indian performer records a song they didn’t write, they still receive some royalties for radio play.
• Perhaps there are segments of the Indian market that give less credence to branding and are more accepting of sound-alike albums than many segments of the American market.
• It may be more costly to track sales of cover recordings for royalty collection in India than it is in the United States.  It may make more sense for Indian labels to limit all covers rather than spending money trying to track cover sales.

These are just my best guesses.  If any of this blog’s Indian readers would like to evaluate or add to the potential rationales, I would love to hear any comments.

Nikhil Krishnamurthy, The Statutory Mechanical License in India: Whose Version [Of the Law] is Correct?, Manupatra Intellectual Property Reports, MIPR, Vol. 1, p. A-115 (March 01, 2007).