Facing the music – copyright and cover songs

The digital world of YouTube, Facebook, Instagram etc. have opened a new platform for many aspiring young performers. We often come across fledgeling artistes covering popular songs on these social media platforms and the Covid-19 shutdown has increased this trend even more. 

From a legal perspective, this gives rise to an interesting question - is it legal to cover such songs of famous musicians in a studio or by live performance?

In Bangladesh, the legal rights concerning music are covered by the Copyright Act 2000 and Copyright Rules 2006. In legal parlance, a musician's copyright is protected as an author's right. For musical work, the copyright law includes the composer under the meaning of "author" as provided by section 2(24)(b) of the Copyright Act 2000.

According to section 71, amongst others, copyright in a work shall be deemed to be infringed when any person, without a license granted by the owner of the copyright, (a) does anything, the exclusive right of which is with the owner of the copyright; and (b) permits, in exchange for profit, any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work. 

So, for a musical performance, both the performer and the host/organiser of a performer could be exposed to copyright infringement under section 71 of the Act. 

There has been some discussion in recent times over the unauthorised use of famous band music by Bangladesh Musical Bands Association (BAMBA). In a notice published in July 2020, BAMBA expressed its concerns regarding unauthorised commercial use of its association member-bands' popular songs over internet-based platforms, concerts/shows, etc. and urged all concerned to seek and obtain appropriate permission before playing or performing such songs. 

BAMBA, along with Music Industries Owners Association of Bangladesh (MIB) and Bangladesh Film Producers and Distributors Association (BFPDA) also conducted a press conference alleging undue pressure on performers and musicians from a certain quarter regarding royalties and copyright.
 
The Copyright Act 2000 does not define the term "cover song". However, in plain language, the term "cover song" means a new recording of an old song by a different band or singer. In legal terminology, a "cover song" can be described as "version 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. But version recording is neither copying nor reproduction of the original recording. 

It can be described as when after the first sound recording (that is, the original version) is made, and after permissions are taken from the authors of the musical work and the lyricist which formed the basis of the original version, another band of the orchestra with a singer (i.e. another set of performers), by their performances based on the existing musical work and the lyrics, creates a new sound recording. 
This second sound recording is called a version recording or cover version. Under the Copyright Act 2000, the term "sound recording" means "a recording of a sound from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced, as provided by section 2(35) of the Act.

As a matter of legal interpretation, it can be argued that version recordings are fresh recordings which are made by using a new set of musicians and could be made following the conditions laid down the Copyright Act 2000. 

Section 72(10) of the Copyright Act 2000 states that certain acts will not be an infringement of copyright namely the making of sound recordings in respect of any musical work with its words if the following conditions are satisfied-

a. The cover version of that work has been made with the license of the original copyright owner. The person making the cover version (i) has given a notice in the prescribed manner of his intention to make the cover version, (ii) has provided copies of all covers or labels with which the cover version is to be sold, and (iii) has paid in the prescribed manner to the owner of the copyright in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board. 

b. The person making the cover version is not permitted to make any alteration in, or omissions from, the original version, unless such alterations or omissions have been made with the license of the owner of the copyright, or unless such alteration or omissions are reasonably necessary for the adaptation of the work to make the cover version.

c. The cover version 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. 

d. A cover version cannot be made until the expiry of two calendar years after the end of the year in which the original version was made. 

e. The person making the cover version shall allow the owner of the copyright or his duly authorised agent or representative to inspect all records and books of account relating to such cover version.

If the above conditions are satisfied, then the cover song artist shall not be liable for infringement of the copyright law. Otherwise, the person has to bear the consequences of infringement of copyright.
Concerning the live performance of a classic or popular song, the Copyright Act 2000 recognises a concept called "performer's rights" under which a visual or acoustic performance made live by a singer is protected under sections 2(41) and 35 of the Act.
  
Section 35 of the Copyright Act 2000 recognises "Performer's Rights" of a singer of a commercially recorded song for 50 years from the "from the beginning of the calendar year next following the year in which the work is first performed". 

During this period, the performance, or "a substantial part thereof", cannot be reproduced, broadcasted or communicated without the performer's consent. Singers have the right to receive license fees in case their performances are commercially utilised.  

It is important to note here that singers can, under the Copyright Act 2000, license their right to receive license fees to copyright societies to administer their right, i.e., issue licenses and collect a royalty on their behalf as provided by sections 41 and 42. 

A registered copyright society under the Copyright Act 2000 can be formed to create tariff rules and to collect and distribute royalties to singers. 

However, there is one exception to live performances. If the live performance of a classic or famous song is done in social events like marriage ceremonies, then no copyright infringement or violation will occur for the performing artiste or the host of such social event as provided in section 72(27) of the Copyright Act 2000.

The allegations levelled by BAMBA, MIB and BFPDA at the press conference against some persons pressurising artists over copyright and royalties must be looked at from the standpoint of whether or not those individuals acted within the parameters of the copyright laws of Bangladesh. 

Only a copyright society lawfully registered under the Copyright Act 2000 can raise representative claims on behalf of its members. And under the Copyright Act 2000, a copyright society can be registered by the government (subject to conditions) having regard to (a) the interests of the owners of the copyright; (b) the interest and convenience of the public and in particular, of the groups of persons who are most likely to seek copyright licenses from the copyright owners; and (c) the ability and professional competence of the persons forming the copyright society.

So, here we are. Copyright laws give adequate protection to Bangladeshi artists who have created timeless music that defines our nation. But laws are only effective when rights are asserted. 

It is up to the artist to assert his or her right when there is copyright infringement. It is only when rights are validly asserted against wanton violators under the copyright laws that we will see the true meaning of the expression "face the music"!

The author is a Barrister at Law, Advocate, Supreme Court of Bangladesh and Managing Partner, Vertex Chambers