The original owner of the song ‘Manike Mage Hithe’ Satheeshan Ratnayaka (left) and Yohani De Silva who received international recognition for singing a cover version of the song
A “cover song” is a new performance of a previously recorded song by someone other than the original artist with the lyrics and basic melody left intact. In other words Cover songs are re-recorded version of a song, replacing the original vocals and instrumentation with your own. Under recognised copyright laws, cover versions cannot change the underlying melody or arrangement. But the two common questions that is in everyone’s mind are, do you need permission to do a cover version of someone else’s song? And then can I upload it in YouTube Facebook and other platforms?
In this regards the law is grappling to get some form of uniformity. In the UK and U.S, which are known as two capitols of Music industry, the Copyright law has a concept called “compulsory licensing”. The Compulsory licensing concept basically means that the owners of a song cannot deny another person releasing his own interpretation of the song. However there are two things the cover artists need to comply if they wish to go down this road. Firstly, they must notify the owner of the original song of your intent to cover the song. Remember notifying here does not mean you need to ask permission. It is simply letting them know you are going to cover their song. Second, they must pay the owner a specific royalty rate per song that you have covered per purchase or download or otherwise remuneration they receive. The royalty rate differs from country to country or region.
The second thing to remember is, obtaining a compulsory license is good enough for releasing an audio recording of your cover song, but it does not clear the music video rights of the song. If you want to legally release a music video for your cover song then there are other permissions you have to seek. This is because in international Copyright Law recognises a concept called synchronisation right for audio visual creations. This means when you place a song to video, whether it’s a cover song or an original it requires that you obtain a synchronisation license from the owner of the copyrighted work,.i.e, for a music video of a cover song it’s from the owner of the song, meaning from the music publisher or composer as well as from the owner of the sound recording. A question regularly arise is what if the publisher says yes, but the owner of the original sound recording says No? In such a situation, you may be able to try to obtain sound recording license from a legally cleared cover song of the original song, to secure synch licensing on the songs sound recording. Note also that while copyright owners must grant these compulsory mechanical licenses in US and UK, they are not required to give you a sync license for your music video, nor is there a set fee for the said sync license like the royalty for the audio.
"Obtaining a compulsory license is good enough for releasing an audio recording of your cover song, but it does not clear the music video rights of the song. If you want to legally release a music video for your cover song then there are other permissions you have to seek. This is because in international Copyright Law recognizes a concept called synchronization right for audio visual creations"
In the European Union there are no specific rules under the EU law governing cover versions of songs. But Article 17 of the Directive (EU) 2019/790 introduces new rules applicable for uploading user generated content to the internet. The Commission’s Copyright Directive is to support Member States in implementing these new rules. It states that online content-sharing platforms provides an act of communication to the public or of making available to the public when they allow public access to copyright-protected works uploaded by their users. Hence, the Directive requires that online content-sharing platforms should obtain authorization, including via a licensing agreement, from the relevant right holders when uploading. This position indirectly acts as a deterrent for unauthorised cover versions being uploaded to the internet.
In India, the amendment to the Copyright act of 2012, bought about a number of changes in respect of rights of music directors, lyricists, and performers. Section 31C bought in a statutory licenses regime which is a compulsory licensing, that may be used for making cover version of a sound recording in dramatic or musical work. However, this is a different type of law to that of the Compulsory license for cover versions recognised in US and UK. The Indian law details the manner in which cover versions can be made. In gist, a cover version cannot be made until the expiration of 5 years from the end of that calendar year when the original sound recording was made. It has to be in the same medium as the original one, unless that medium is no longer in commercial use. Prior consent of the owner of the original sound recording has to be obtained. Copies of the covers/labels have to be disclosed to the owner of the sound recording prior to release of the cover version. The royalties to be paid to the owner are fixed by the Copyright Board. One royalty is fixed for every calendar year for a minimum of 50,000 copies and additional royalties payable are also fixed. The Copyright Board may fix a lower rate of royalty for works based on the potential circulation for that language or dialect. 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 that which is technically necessary. The author of the cover version is required to maintain books of accounts, which may be inspected by the owner of the original sound recording.
"In India, the amendment to the Copyright act of 2012, bought about a number of changes in respect of rights of music directors, lyricists, and performers. Section 31C bought in a statutory licenses regime which is a compulsory licensing, that may be used for making cover version of a sound recording in dramatic or musical work"
The difference in Indian system is, although these provisions are specifically with reference to statutory licenses, the owners can be directly approached and license can be obtained on other agreed terms and conditions suitable to both the parties. For example 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, they can obtain a general license on other negotiated terms.
One might wonder now if the law is in place so well for cover versions and a sync license for video, has everyone who has become famous by covering songs on YouTube obtained done it all legally?. Research has found that the simple answer is No. This means technically most of the artists who make cover songs and post it on YouTube or such like platforms run the risk of the label or original artist having your video taken down/removed from YouTube or such like platforms for copyright infringement.
However to cut through all this noise, YouTube now has come up with a system to avoid legal battles and to tackle the mass input of content uploaded everyday which doesn’t have the required license. It has a system in place known as Content ID that rewards publishers for having artists cover their songs. This means through Content ID, YouTube has blanket publishing deals with over 95% of song publishers in the world. This allows the owner of the original song to find out when a song of theirs is being covered and uploaded. Thereafter the original owner has the option to choose whether a cover is taken down/removed if their licensing requirements are not met with or instead get monetized from it. More often than not the original owners choose to monetize. This means they get a share of the revenue made through advertisements as well! This business model YouTube has devised has been working great for YouTube, songwriters, and the cover artists. It has reduced the number of conflicts that could arise from cover videos. However this solution is not an all-encompassing for issues of cover songs online, because it applied only to YouTube. Other social media sites and service providers do not operate such a system and hence any violations that happen in other sites owing to cover versions being uploaded without the required license, has to be resorted with the law.
"The fair use doctrine is only meant to protect the use of audiovisual work which is already in existence, in certain permitted occasions and not a recreation or reproduction of copyrighted material like in a scenario contemplated in making a Cover version of a song"
So now having gone through international comparisons of both the copyright laws solutions for cover versions and the tech solutions for cover versions, the next question is, what is the position in Sri Lanka for covering a song? Does the Sri Lanka Law provide any similar solution? The short answer is No. The Sri Lankan Intellectual Property act No 36 of 2003 has not even remotely considered the necessity to have a progressive provision on compulsory licensing in copyrights for cover version or the like, although fostering creativity is also the objective of Intellectual Property Law in as much protecting the creations and creators. In that case how is the original song protected and how can the cover artists legally execute a cover version in Sri Lanka? When you peruse the Intellectual Property act you find that as per section 9 of the Act, the Owner of the Copyrighted work and no one else has the exclusive right to authorise any act pertaining to his Copyrighted work. These acts include, reproduction, translation, adaptation, arrangement or other transformation of the work, public distribution, public display, public performance, broadcasting and other forms of communications to the public. Hence one can come into a conclusion that the exclusive rights the owner holds under section 9 especially when the words “adaptation arrangement or other transformation” read with words “broadcasting and other forms of communications to the public” can be interpreted to include the ownership of cover version as well. Thus it is clear that these protected categories shows that almost every form of copyright of the copyrighted work exclusively vests with the owner and none other. There is no express or implied provision elsewhere in the Act that talks of either cover versions license to be granted as in the Indian Act or any other form of compulsory licensing to be granted as in US or UK. Furthermore section 16 of the Sri Lankan Act that deals with licensing of Copyrighted material stipulates that the owner of the Copyright has to grant a license of his copyrighted work to another whether it is used in part of full.
On the other hand, there are situations where there is no licensing required for the use of Copyrighted material, owing to the default application the fair use doctrine enshrined in section 11 and 12 of the Act. There had been arguments made around the world in defence by artists who made cover versions without the required license that a cover version of a song falls under fair use. The answer to this theory in short is No, it doesn’t. This is owing to the fact the fair use doctrine does not extend its immunity for recreation or reproduction of the copyrighted material whole or in part without the permission or licensing of the owner. The fair use doctrine is only meant to protect the use of audiovisual work which is already in existence, in certain permitted occasions and not a recreation or reproduction of copyrighted material like in a scenario contemplated in making a Cover version of a song.
"So now having gone through international comparisons of both the copyright laws solutions for cover versions and the tech solutions for cover versions, the next question is, what is the position in Sri Lanka for covering a song? Does the Sri Lanka Law provide any similar solution?"
Furthermore, some also argue that the concept of derivative work enshrined in copyright law described in section 7 of the Act, appear to give some semblance of justification for a cover song to be legally made. The principle behind derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. A derivative work is a “new edition” of a preexisting work, as a whole, an original work. To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. Hence the copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. In cover songs this is not so, to reiterate a cover song is a re-recorded version of a song, replacing the original vocals and instrumentation with your own. Under recognised copyright laws, cover versions cannot change the underlying melody or arrangement. This means there are no new additions in cover songs like in a derivative work. Therefore a cover song does not become a derivative work.
In this backdrop the only rational conclusion one can arrive at is, as the law stands now in Sri Lanka if one wishes to do a cover version of a song, it is mandatory that one needs to obtain a regular form of license from the owner of the copyright. This is not a healthy regime for the progress of the music industry, given the rapid development in the music industry and owing to the growth of talent and the infusion of technological advancement to it. A prime example would be the current song Manike Mage Hithe by Yohani featuring Satheeshan. It is the cover version of this song that hit 143 million views and counting and made them International Mega Stars. The advance principles in copyright law stipulates the protecting of the creator (owner) at the same time not to act to stifle creativity. Therefore the immense opportunity available for artists, especially the younger generation to exercise their creativity in audiovisual work in the modern day should be given leeway and due legal recognition. Hence I strongly believe and suggest that time is ripe now to amend the Sri Lankan Copyright law to make it in sync with the Copyright laws in other countries, and bring about a legal regime that recognises Compulsory Licensing akin to that of US and UK systems, in order to facilitate the creation of cover songs.
The author of this article is an Entertainment Law and Sports Law Attorney and TV presenter Sri Lanka Rupavahini Corporation