Copyright Act, 1963

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Special exception in respect of records of musical works.

13.—(1) The copyright in a musical work is not infringed by a person (in this section referred to as the manufacturer) who makes a record of the work, or of an adaptation thereof, in the State, if—

(a) records of the work or, as the case may be, of a similar adaptation of the work, have previously been made in or imported into the State for the purposes of retail sale, and were so made or imported by, or with the licence of, the owner of the copyright in the work;

(b) before making the record, the manufacturer gave to the owner of the copyright the prescribed notice of his intention to make it;

(c) the manufacturer intends to sell the record by retail, or to supply it for the purpose of being sold by retail by another person, or intends to use it for making other records which are to be so sold or supplied; and

(d) in the case of a record which is sold by retail, the manufacturer pays to the owner of the copyright, in the prescribed manner and at the prescribed time, a fair royalty.

(2) Where—

(a) either party to a dispute in relation to the amount of a royalty payable under paragraph (d) of subsection (1) of this section undertakes to refer the dispute to the Controller under section 31 of this Act, and

(b) the manufacturer pays to the owner of the copyright a sum on account of the amount of the royalty equal to five per cent. of the ordinary retail selling price of the record in respect of which the royalty is payable and gives to such owner an undertaking to pay to him the amount of the royalty determined under the said section 31 less the sum aforesaid and such owner gives to the manufacturer an undertaking to repay to the manufacturer the amount (if any) by which the sum aforesaid exceeds the amount of the royalty determined under the said section 31,

the copyright in the work is not infringed on the ground of non-fulfilment of the condition specified in paragraph (d) of subsection (1) of this section by the making of a record by the manufacturer.

(3) In the case of a record—

(a) which comprises (with or without other material, and either in their original form or in the form of adaptations) two or more musical works in which copyright subsists, and

(b) the owners of the copyright in the works are different persons,

the royalty shall be apportioned between or among the owners as they may agree.

(4) Where a record comprises (with or without other material) a performance of a musical work, or of an adaptation of a musical work, in which words are sung, or are spoken incidentally to or in association with the music, and either no copyright subsists in that work, or if such copyright subsists, the conditions specified in subsection (1) of this section are fulfilled in relation to that-copyright, then if—

(a) the words consist or form part of a literary or dramatic work in which copyright subsists, and

(b) such previous records as are referred to in paragraph (a) of subsection (1) of this section were made or imported by, or with the licence of, the owner of the copyright in that literary and dramatic work, and

(c) the conditions specified in paragraphs (b), (c) and (d) of the said subsection (1) are fulfilled in relation to the owner of that copyright,

the making of the record shall not constitute an infringement of the copyright in the literary or dramatic work.

(5) The provisions of subsection (4) of this section shall not be construed as requiring more than one royalty to be paid in respect of a record; and if copyright subsists both in the musical work and in the literary or dramatic work, and their owners are different persons, the royalty shall be apportioned between or among them (or among them and any other person entitled to a share thereof in accordance with subsection (3) of this section) as they may agree.

(6) For the purposes of this section an adaptation of a work shall be taken to be similar to an adaptation thereof contained in previous records if the two adaptations do not substantially differ in their treatment of the work either in respect of style or (apart from any difference in numbers) in respect of the performers required for performing them.

(7) Where, for the purposes of paragraph (a) of subsection (1) of this section, the manufacturer requires to know whether such previous records as are mentioned in that paragraph were made or imported as therein mentioned, the manufacturer may make the prescribed enquiries; and if the owner of the copyright fails to reply to those enquiries within the prescribed period, the previous records shall be taken to have been made or imported, as the case may be, with the licence of the owner of the copyright.

(8) Nothing in this section shall be construed as authorising the importation for sale by retail of records which could not lawfully be imported apart from this section; and accordingly, for the purposes of any provision of this Act relating to imported articles, where the question arises in relation to a record made outside the State and so imported whether the making of the record would have constituted an infringement of copyright if the record had been made in the State, that question shall be determined as if subsection (1) of this section had not been enacted.

(9) The preceding provisions of this section shall apply in relation to records of part of a work or adaptation as they apply in relation to records of the whole of it save that subsection (1) of this section—

(a) shall not apply to a record of the whole of a work or adaptation unless the previous records referred to in paragraph (a) of that subsection were records of the whole of the work or of a similar adaptation, and

(b) shall not apply to a record of part of a work or adaptation unless those previous records were records of, or comprising, that part of the work or of a similar adaptation.

(10) The Minister may make regulations for the purposes of this section and in this section “prescribed” means prescribed by regulations made by the Minister.