Copyright can be defined as “a person’s exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)“. Under Copyright Law, creators of original material get the sole right to further use, distribute and copy that piece for a given amount of time. Copyright Law grants them the right to use their brainchild commercially. At that point, the Copyrighted item becomes the public domain.
The commercial rights provided by musical works are enjoyed through Copyright. Music can be Copyrighted in two ways. One of the ways is a Copyright in the song, i.e. the musical composition, which consists of the lyrics and underlying music (beat, instrumental). Another way is the Copyright in the sound recording or “master recording” itself. So, if you were to write a song, you would own the Copyright in that musical work, and if you wish to record a version of that song, you would require additional Copyright in that audio recording.
In the case of compositions, the Copyright is automatically created when music or lyrics are recorded, put on paper, or otherwise written down in a document. For master recordings, the Copyright is created when “a sound recording is fixed, meaning that the sounds must be captured in a medium from which they can be perceived, reproduced, or otherwise communicated“.
In the case of Copyrights over musical works, the owner gets various rights like the right to reproduce that work (in the form of CDs, etc.), right to distribute that work, right to perform the work publicly, etc. Because they have the sole right to reproduce, there is a mechanical license to allow others to benefit from the Copyrighted work by making its CDs, cover versions, etc.
Let’s discuss what exactly the mechanical license means.
A mechanical license allows the licensee to physically reproduce the Copyright owner’s work. This includes distribution of music in any tangible form, e.g. manufacturing of CDs, etc. A mechanical license is also needed if you plan to record a cover song, even if only a portion of the original song is used. This also includes adding your own lyrics, re-mixing, or changing anything about the original recording that affects the overall integrity of the artists’ composition.
Provisions and precedents
Under Section 14(a)(i) of the Indian Copyright Act, 1957, the Copyright holder has been given the right to reproduce his work and section 14(e) further talks about rights with respect to sound recordings.
Indian Copyright Act, 1957 does not explicitly talk about Mechanical License, but the license for enjoying rights of the Copyright holder that have been discussed in the Act. Under section 30, the Copyright owner can confer such rights onto another person through the license.
Section 31C discusses ‘Statutory License‘, which has to be obtained before reproducing a cover version of a song by another author. They also have to obtain the prior permission of the author/artist, and also, in case of alterations to literary work, they have to seek the consent of the Copyright owner.
In the case of Indian Performing Rights Society v. Harshvardhan Samor, the plaintiff sought to restrict defendants from performing songs (works for which the plaintiff issues license) without a license to do so. Bombay HC also highlighted that one must obtain a mechanical license to reproduce or perform the work. Otherwise, the performance without the mechanical license would amount to infringement under Section 51 of the Act.
Under Section 31C, while obtaining a statutory license for a cover version, the applicant need not require the artist’s permission if the work has been made public in the past and mechanical reproduction has been allowed before. But royalties still have to be paid to registered societies. This was held in the case of Gramophone Company Of India Ltd. v. Super Cassette Industries Ltd.
Procedure to get a mechanical license
In India, the mechanical license can be obtained by applying to any of the two organisations: PPL (Phonographic Performance Limited) and IPRS (The Indian Performing Right Societies). In the case of reproducing pre-recorded music, they have to obtain a license from PPL. Moreover, in the case of the live performance of a cover, they have to obtain a mechanical license from IPRS. Even for using a part of a work in their sound or CD reproduction, they have to obtain this license. One can obtain the license online through the portal of IPRS. This application also involves payment of a license fee.
Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.
