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Copyright Infringement of Boroloker Biti Lo Song By Badshahs Genda Phool: Sectional Analysis of Copyright Act 1957 And Similarity Therein

Nanos Gigantum Humeris Insidentes
(discovering truth by building on previous discoveries) -a Latin maxim

Facts
The lyrics of the song Genda Phool, which was released by singer Badshah on 26 March 2020 came under controversy only after it trended as one of the most-watched songs on the YouTube list and gained immense popularity. The controversial line in the song Genda Phool is between 0:44 sec and 1:00 min (roughly) which is repeated twice by the singer Payal Dev,

বড়লোকের বিটি লো, লম্বা লম্বা চুল
এমন মাথায় বেঁধে দেবো লাল গেন্দা ফুল

Baṛalōkēra biṭi lō, lambā lambā cula
ēmana māthāẏa bēm̐dhē dēbō lāla gēndā phula
(Google translator)

The rich man's daughter has attractive long long hair
 and I will set a red Marigold flower in her hair.
(English translation) This is followed by a pure musical score, without any lyrics, between 1:00 min and 1:17 min (roughly) which is also repeated twice. The Description of the song as mentioned in YouTube is given below:

  • Song: Genda Phool
  • Artist: Badshah & Payal Dev 
  • Starring: Badshah & Jacqueline Fernandez
  • Original Lyrics: Bengali Folk
  • Lyrics & Compose: Badshah
  • Music Arrangements: Aditya Dev

As it can be seen that there is no reference made or credit given to Ratan Kahar, who perhaps in 1972 wrote the lyrics of the song and as per the documentary, Ratan Kahar-The forgotten gem when he was part of an organisation named Anan Gosthi where they sang this popular song in the choir.

It Is also a part of historical fact that his song was perhaps used many times without any credit and was first adapted by Swapna Chakraborty in 1976, which later became famous and won golden disk award. However, Kahar was not given any credit back then.[1] In almost all such songs, traditional Bengali Folk is written against the original lyrics head without any credits to Ratan Kahar.

In light of these facts, we analyse issues as to whether Ratan Kahar was the original author of the song or not and what provisions of Copyright Act are appropriate in this context along with the similarity it carries in the latest song Genda Phool.

Analysis
Firstly, fixation is not defined in the Copyright Act 1957 and therefore we take the definition from the copyright Act of US, §101[2], which defines fixation. It says that for work to be fixed it has to be in a tangible mode of expression, under the authority of the author and the most important part is that it has to be for a period more than the translatory duration. The tricky word here is transitory duration. For instance, anything fixed in RAM is volatile in nature and would not amount to fixation under the definition however if fixed in the hard drive or ROM for that matter amounts to fixation. 

In the Indian context, it is not a mandatory requirement to prove copyright. It has more to do with the cultural background of a country and it is a well-known fact that India since time immemorial passed on valuable knowledge and information by way of mouth without expression in any tangible mode. However, in the case of dramatic work, it has been mentioned in §. 2(h) [3] that it needs to be fixed in writing or otherwise, that is to say, the interplay of characters for instance and the setup should be fixed in a tangible medium. Hence, in the present case, the question of fixation does not arise as it deals with lyrics and musical score and not any form of drama. It falls within his rights and ownership to hold the copyright in his work.

Secondly, at the outset, Copyright similar to a property right consists of a bundle of rights which are exclusively owned by the author or the owner of the work. §. 14(a) [4]deals with such bundles of rights which can be assigned by a licence or authorised by the owner of the copyright in favour of any person based upon the principle of Quid Pro Quo. Clauses 1, 3, 6  specifically deal with reproduction of work, to perform the work in public and to make any adaptation of the work respectively. In the current scenario of alleged copyright infringement, these three rights specifically are infringed if the same is proved before the court of law.

As the song Genda Phool which was uploaded by Badshah on YouTube allegedly reproduced the work and also communicated it to the public via an electronic medium which in this case is YouTube through adaptation of the work. Looking back at the interpretation clause of Copyright Act, 1957, adaptation, with respect to musical work deals with any form of arrangement or transcription of the work. [5]

Derivative work is not defined in the Copyright Act 1957 and hence we look at that definition from the Copyright Act of the US in §. 101 [6]. Therefore adaptation can be seen as a subset of derivative work which encompasses all forms of modification, recasting, transformation and adaptation. 


Thirdly, it has to be understood that there are two separate infringements which are to be looked at. §. 13(1) [7] tells us that copyrights subsist with respect to both the rights of the lyricist and the composer. The first one being the infringement with respect to literary work (lyrics of the song, lyricist) and the second one with respect to the musical score (melody of the song, composer). Sheet music embodies a musical work.

It has to be understood that musical work, lyrics and sound recording are all different things. §. 2(p) [8] of the Copyright Act, 1957 tells us that a musical work consists of graphical notations but does not include words sung by the singer which means only the score part. From this, it can be understood that separate copyright subsists in musical work different from the copyright subsisting in the lyrics. However, this is not the position in case of the U.S and U.K, where one copyright can be granted for two separate works.

 However, in the current scenario, the songwriter is perhaps Ratan Kahar who is entitled to both the copyrights and therefore the joint authorship right under §. 2(z) [9], comprehensively is owned by him. 

Also §. 13(3)(b) [10] makes it clear that any work made in respect of the original work pertaining to sound recording needs a compulsory licensing from the original owners of copyright in order to qualify for copyrightability in their work. No such licence or assignment or credit for that matter was given to the original songwriter perhaps in this case. Furthermore, in §.51[11] it has been clearly mentioned that in absence of a licence corresponding to the original work or in case of violation of §.14 of copyright act 1957, the copyright in the original work is said to be infringed. Also, the sound recording company needs to take permission for mechanical license under §. 14(a)(iv) read with §. 14(e) [12] which did not happen.

Fourthly, it is clear from §. 22 [13] that the term of copyright in musical work subsists for a period of 60 years from the beginning of the calendar year following the year in which the author dies. This brings us to §. 57 [14]which deals with moral rights of the author.

This section clearly says that the author has the sole right to claim authorship, and to claim damages in respect of any form of mutilation or adaptation (impliedly any derivative work) therein before the expression of the term of copyright if it affects his reputation in any way. In the current situation, since no credit was given to the original composer of the song, it perhaps not only compromises his reputation but also the compensation which he should have been entitled to. 

Similarity Test
Corresponding to the musical work copyright infringement, substantial similarity as explained by Nimmer [15] is of two types:
  1. comprehensive non-literal similarity
  2. fragmented literal similarity 
The current discussion deals with fragmented literal similarity (since it is reproduced in a fragmented way) and two points are to be noted. In the language of Nimmer, the literal elements are not comprehensively copied and therefore a part of it can be taken which is rather scattered in the alleged infringed work[16]. The other point which is to be taken into consideration is the qualitative and quantitative value to the copyrighted work.[17]

As far as the quantitative aspect goes, The musical work can be discretized into notes and presented in the form of sheet music. The judge can compare the sound counter of the original music work with that of the allegedly reproduced work. Coming to the qualitative test, one can look at the most recognisable part and apply the quantitative test in that part by matching the notes in both the works respectively. This is because no infringer would use the exact notes. 

This form of quantum matching when done in the impugned case, that is to say, on analysing the relevant portion of new song's musical work (which is score without any lyrics) between 1:00 min and 1:17 min (upon comparing the interval and the respective chords in both the works) perhaps gives the impression that it is a work of alleged copyright infringement of the original musical work. Therefore the new song is perhaps the infringing copy of the original work as it reproduces it which is dealt with in §. 2(m)(i).[18] 

Conclusion
Coming back to the quote from where we started, the copyright law gives you enough leverage to stand on the shoulders of the Giants but not to the extent of misusing it for one's own ends.
The above discussion was intended to realise the essence of rights and duties. But today, Ratan Kahar lives in extreme poverty[19] and thinking of filing an infringement suit is way beyond his capacity notwithstanding the fact that the civil remedies in the later sections of Chapter XII of the Copyright Act, 1957 are mentioned in detail and entitle the owner of the copyright to damages, injunction etc

 Every day, hundreds of artists are disentitled of their share and often get cheated. The present case is just a reminder of the same and the ultimate goal of the Copyright statute to strike a delicate balance of the rights of the author against the public and not falling prey in the hands of capitalists should be preserved.

End-Notes:
  1. https://www.indiatoday.in/lifestyle/celebrity/story/badshah-s-genda-phool-row-no-money-to-drag-anyone-to-court-says-boroloker-bitilo-singer-ratan-kahar-1661806-2020-03-31accessed on 23.04.20
  2. 101. (Definitions, Copyright Law of US)
    A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
  3. 2(h): dramatic work includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film
  4. 14(a): Meaning of copyright:
    For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:
    (a) in the case of a literary, dramatic or musical work, not being a computer programme,—
    (i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
    (ii) to issue copies of the work to the public not being copies already in circulation;
    (iii) to perform the work in public, or communicate it to the public;
    (iv) to make any cinematograph film or sound recording in respect of the work;
    (v) to make any translation of the work;
    (vi) to make any adaptation of the work;
    (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
  5. 2(a)(iv): adaptation means, in relation to a musical work, any arrangement or transcription of the work
  6. 101. (Definitions, Copyright Law of US)
    A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a derivative work.
  7. 13: Works in which copyright subsists:
    (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—
    (a) original literary, dramatic, musical and artistic works;
    (b) cinematograph films; and
    (c) 1[sound recording]. 1[sound recording]."
  8. 2(p): musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;
  9. 2(z): work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors;
  10. 13(3)(b):  Copyright shall not subsist, in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed. 
  11. 51 When copyright infringed.—Copyright in a work shall be deemed to be infringed—
    (a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—
    (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 
    (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or 
    (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; 
  12. 14(e) in the case of a sound recording:
    (i) to make any other sound recording embodying it;
    (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;
    (iii) to communicate the sound recording to the public. 
  13. 22: Term of copyright in published literary, dramatic, musical and artistic works-
    Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.
  14. 57: Author's special right:
    (1) Independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right
    (a) to claim authorship of the work; and
    (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation
  15. 4 Melville B. Nimmer & David Nimmer, Nimmer On Copyright § 13.03 (2010)
  16. Swirsky v. Carey, 376 F.3d 841 passim (9th Cir. 2004), rev'g 226 F. Supp. 2d 1224 (2002)
  17. Mark R. Carter, Applying the Fragmented Literal Similarity Test to Musical-Work and Sound-Recording Infringement: Correcting the Bridgeport Music, Inc. v. Dimension FilmsLegacy, 14 MINN. J.L. SCI. & TECH. 669 (2013)
  18. 2(m)(i) infringing copy means in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;
  19. Recent documentary on Ratan Kahar released on 27 Mar 2020 (https://www.youtube.com/watch?v=zlyoiFWV-I8)

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