For a Bollywood worshipping family like mine, watching a Hindi film every
Sunday is almost a family ritual. About a few weeks ago, while watching the
song Bachna Ae Haseeno at the start of the film, my mother told me that back in
the 70s, the original song was one of the biggest chart-busters for its quirky
dance moves and the catchy tune.
This immediately got me thinking about various legendary Hindi songs produced in
the 80s and 90s, to name a few: The Humma Song, Tamma Tamma, Laila main Laila,
which have been remixed and included in films in the recent past. But doesn't
copyright law prohibit making copies of someone else's media?
This article will essentially address the above question and analyze the
provisions in the Indian Copyright Act, that allow making a remix from an old
song and the shortcomings in the Indian Copyright Act. This paper shall further
discuss judgments passed by courts on this issue and the amendments that could
be made to the existing Indian Copyright Act.
When a person creates a product that is original in nature and has taken
significant mental activity and intellect to create, this becomes intellectual
property and should thus be protected from being copied without authorization.
Essentially, copyright law does not allow an individual to earn profit and
appropriate to himself, the labor, skill and capital of another.[i]
Basically, you have a copyright from the moment you create something and it
needs to have two things: it needs to be original and it has to be fixed in a
tangible medium of expression as copyright protects your expression and not your
Copyright can be understood as a bundle of rights that are exclusive in nature
and are held by the owner of the copyright through Section 14 of the Indian
Copyright Act.[ii] The owner has the exclusive right to develop it further,
right to make translations, right of reproduction, right of publication,
communication to public etc. [iii]
Remix Culture in the modern era
The internet has majorly supported the remix culture, where users engage with
content by creating derivative works. Remixes take many forms but a popular one
is in the idea of sampling bits from other songs or creating music mashups.
Creators have started to exist in a world where they respond to creating
derivative versions of previous works. A remix is made by using an old song that
has the original lyrical work.
This old song is decorated, modified and transferred so as to fall under the
category of an original work. The new song is made by using audio mixing and
adding and subtracting certain elements of the original song.
The lyrics are kept the same and the bass and instruments are totally or
partially altered. The original work is a poem that was written by a lyricist
and the same was made into a song with the help of an artist to sing it and a
music composer to compose it. The song must have been recorded on cassettes and
discs and must have become extremely popular, back in the day. Over the years,
the singer and the composer lose their fame but the melody and the catchy tune
of the original work continue to remain attractive.
Though the original song may be quite long in length, the listener remembers the
catch part or the hook part.[iv] Thus, the desire of the infringer is to
necessarily copy the catch part and leave the chaff, for he would attract the
audience only by the attractive and not by the ordinary. [v]
A resourceful new artist, capitalizes this old song and finds a singer and a
composer and adds some present day newness and some extra beats to make the song
relatable to the public. The new song is called the remix. In the Indian
context, we can take the example of the famous song Tamma Tamma Loge.
The song was a hit back in the 90s for its catchy tune and also the dance moves.
The same song was reprised and was seen in a latest film in the year 2017 and
was called Tamma Tamma again. Few new beats along with a modern oomph were added
to the song but the original rhythm remained the same. The question then arises
about whether or not it is lawful to exploit the original work of an artist in
Musical work under Indian Copyright Act, 1957
Musical work is defined under Section 2(P) of the Copyright Act, 1957 to include
a work consisting of music and also includes graphical notations of such
work.[vi] But it does not include any word or an action that is intended to be
sung, spoken or performed with the music. [vii]
It thus, makes the composer the owner of the musical work and not the singer who
sang the song. In Gramophone Company of India vs Super Cassette Industries
Ltd [viii], the Delhi High Court observed:
Musical work is not merely a combination of melody and harmony or either of
them. Every musical composition has a structure, or shape that is the
arrangement of individual elements so as-to constitute a whole and that musical
notation means a visual instructions for performance of music. [ix]
The Copyright Act also protects the adaptation of a musical work, which means
that it protects any arrangement or transcription to a musical work. An owner of
a sound recording is promised certain rights through Section 14(e) of the
Copyright Act. These include the right to make any other sound recording
embodying it, the right to sell or give on hire, or offer for sale or hire, any
copy of the sound recording (whether the same had been sold or hired in the
past) and the right to communicate the sound recording to the public at large.[x]
Protection under the Copyright Act to remix makers
The worrying thing part about this scenario is that, so much of our normal
everyday behavior puts us at the risk of infringing copyright, as much of our
life is digital. To quote Professor Ian Hargreaves: The Copyright regime cannot
be considered fit for the digital age when millions of citizens are in daily
breach of copyright, simply for shifting a piece of music or video from one
device to another. [xi]
People are confused about what is allowed and what is not, with the risk that
the law falls into disrepute. So to make law work in the digital age, there is a
need to have copyright exceptions. Section 52 (1) (j) of the Copyright Act
states that it, would not count as an infringement if there exists a sound
recording of the original literary or musical work and the person who wishes to
copy it has given a due notice of his intention to use it and make a sound
recording and has also paid the original owner-the royalty price that has been
fixed by the Copyright Board. [xii]
The person wanting to make the remix, cannot make alterations without taking the
consent of the owner or cannot make changes which are not reasonably necessary
for the adaption of the work. [xiii]
The new sound recording should not be marketed with labels or packaging that
might mislead the public about the identity of the artist. The remix should not
be made until the expiration of two years after the end of the year in which the
original song was made [xiv].
The original owner has the right to inspect all records and books related to the
remix. The consent of the owner of the original song is of great importance as
the original sound recording was created by him and he enjoys the exclusive
right of ownership. If the owner of the copyright, brings a complaint to the
effect that royalty has not been paid in full and if the Copyright Board is
prima facie, satisfied about this complaint, it may pass an order asking the
sound recording to stop making any further copies and after conducting further
inquiries, it may take necessary actions as it thinks fit.[xv] Section 52 (1)
(j), states that works like music and sound recordings are subject to seeking
permission from the owner of the copyright for certain uses and changes. This
acts as legal authorization to use the copyrighted work in certain ways as long
as the user pays the required fee and otherwise meets the conditions in the law.
Case laws on Section 52 (1) (j)
Taking the consent of the original owner of the musical work is of great
importance as laid out in the case of Gramophone Co vs Super Cassettes. [xvi]
The court laid out that the plaintiffs consent was important for making a
recording in compliance with Section 52(1) (j) in order to not fall under the
category of infringement. In the present case, an audio cassette was made with
the title Ganapati aarti ashthavinayak geete.
The defendants wanted to make a sound recording that consisted of the original
sound recording and thereby offered to pay a license fee for the same.[xvii] The
plaintiffs did not agree and returned the cheque which clearly shows that they
did not give permission for the usage of the musical work. Even after this, the
defendants brought out their sound recording. [xviii]
Thus, without the consent of the owner of the original work, it shall be an
infringement. But in the case of Gramophone Co vs Mars Recording, the court held
the contrary and stated that as long as the conditions of Section 52(1) (j) of
the Act are followed, there would be no infringement. There is no requirement of
obtaining a license/consent. [xix]In the case of Super Cassette Industries
Limited vs Bathla Cassette Industries Pvt. Limited, it was held that there can
be no change of the singer in a vocal rendering as that is a vital constituent
of a song and should not be done without obtaining previous consent of the owner
of the musical work- in accordance to Section 52 (1) (j)[xx]. The voice is the
soul and essence of a song.[xxi]
A recent case that also attracted copyright infringement, is the case where a
popular Sambalpuri song Rangabati was remixed and aired on an episode of the MTV
Coke Studio and became quite popular. English-Tamil rap and the Orissa state
anthem were added to the original song. [xxii]
The owners of the original song questioned this move and sued Hindustan
Coca-cola Beverage Private Limited, Hindustan Cola-cola Holdings Private and the
singers of the remixed version by sending a legal notice for copyright
infringement stating that there was no license or authorization that was sought
or given, the branding of the song made it seem like an Odia number, though the
fact of the matter is that it was originally written as well as released as a
Sambalpuri number and the remixed version mispronounced several words and there
was unauthorized incorrect usage of the original song.[xxiii]
According to Section 52 (1) (j)
, there are certain provisions that need
to be followed before making a remix version of the song. Though it is true that
remixing music is an effective way of reaching out to the young generation but
if it is viewed as an offence to culture, the rights of the original owner
should be kept alive.
Premise of controversies around Section 52 (1) (j)
Section 52(1) (j) acts as a rule book that needs to be followed before copying a
musical work. This section has been highly criticized and various complaints
have been received especially from the Indian music Industry as this Section
allows a person to utilize original sound recordings after two years of the
commercial release by sending a notice to the owner and paying a royalty fee
which is 5% of the proceeds from the first publication.
Thus, this can be viewed as curtailing the copyright protection from 60 years to
straight 2 years.[xxiv]This is unfair as it leads to a loophole where the maker
of the remix can produce it with the reason that he/she wishes to protect
timeless music by giving opportunities to new singers, but the original owner of
the musical work could be unsatisfied with the addition of new beats and the
change in instruments, but there is only so much that he/she can do to protect
their original work. Section 52 (1) (j), clearly dilutes the 60 year age old law
of protection conferred on the Copyright owner.
The limit of royalty that needs to be paid is not specified anywhere in the act,
which thus leads to payments of incredibly low amounts. There is also a huge
loss suffered by owners of original music as there is a decline in the sale of
their original music. The Act also stifles creativity and there is no clear
definition of the extent of change that is permissible.
Moral Rights under Section 57 of the Copyright Act
The only option that a copyright owner of a musical work has, is it use Section
57 of the Act. This states that if conditions of Section 52(1) (j) are complied
with, but if there is some distortion or mutilation of the original literary
work and this is prejudicial to the honor and reputation of the owner of the
original sound recording, then the owner can complain. [xxv]
The existence of moral rights is consistent with the traditional raison detre
to recognize and encourage the results of intellectual
creativity on a level with other forms of property. [xxvi] The case of Mannu
Bhandhari vs Kala Vikas Pictures
, recognized the existence of moral rights
held by an author. [xxvii]
Later, in the case of the Amar Nath Sehgal vs. Union of India
, it was
noted that moral rights of an author are the soul of his works. He has the right
to preserve, protect and nurture his creations irrespective of the assignment of
such copyright, whether wholly or partially.[xxviii]
Proposed Amendments to the Copyright Act
There is an urgent need to amend certain provisions of the Copyright Act so as
to protect the rights of the owner.
Firstly, the time period of using a song for remixing after the expiration of
two years from the time of releasing of the original track, should be extended
to five years.
Secondly, there should be a floor rate for the amount of royalty that has to be
paid to the owner, irrespective of the number of copies sold.
Thirdly, there is a need to introduce a statutory system of licensing in order
to ensure that general public has access to musical work over the Radio and
Television as well as to ensure that the copyright owners are not in a
Fourthly, the right of authors to receive royalties and benefits should be
Lastly, if there is commercial exploitation of the work of an author, he should
receive credit for the same by the payment of royalties.
Objective of the Proposed Amendment
The proposed amendments, provide independent rights to authors of musical works
and ensure that they are not wrongfully exploited by music companies. It
recognizes the importance of the new technological era and provide solutions
like a statutory system of licensing, a floor rate for royalties etc. They also
bring the Copyright Act in close comparison and proportion to the World
Intellectual Property Organization, Internet Treaties, WIPO Copyright Treaty and
WIPO Performances and Phonograms Treaty.
In the recent times, we have seen art evolve in various forms. Artists have been
adapting earlier music and adding a pinch of their own creativity, which in
course has brought various issues circling copyright infringement. Though we
have provisions like Section 52 (1) (j) of the Act, that permit the making of
remixes if the conditions of the Section are fulfilled, it is highly essential
to protect owners of the original song and their creativity. Thus, the Copyright
Act should make way to certain amendments that cater the needs of both: the
owner of the original song and the maker of the remix.
[i] Copyright in Music- A Conceptual Analysis, Shodhganga, available at:http://shodhganga.inflibnet.ac.in/bitstream/10603/185815/8/08_chapter%202.pdf,
last seen on 15/10/2018
[ii]S.14, The Indian Copyright Act, 1957.
[iii] Copyright Protection in India, LegalserviceIndia, available at:http://www.legalserviceindia.com/articles/cp_pp.htm,
last seen on 15/10/2018.
[iv] Supra 1.
[v] Supra 1.
[vi] S. 2(P), The Copyright Act, 1957.
[viii] Gramophone Company of India v. Super Cassette Industries Ltd,
[x] Supra 6.
[xi] Digital Opportunity: A Review Of Intellectual Property And
last seen on 16.10.2018.
[xii] S.52(1) (J), The Copyright Act, 1957.
[xiv] Remix and Copyright Law,Nopr.niscair.res.in, available at:http://nopr.niscair.res.in/bitstream/123456789/3618/1/JIPR%2010%282%29%20106-111.pdf,
last seen on 16.10.2018.
[xv] Supra 12.
[xvii] Supra 8.
[xviii] Supra 8.
[xix] Gramophone Co., of India vs. Mars Recording Pvt. Ltd. MANU/SC/0532/2001.
[xx] Super Cassette Industries Limited vs Bathla Cassette Industries Pvt
Limited,2003 VIIIAD Delhi 572.
[xxii] De-coding Indian Intellectual Property Law, SpicyIP, available at:https://spicyip.com/2015/07/the-ranga-rangabati-copyright-row.html,
last seen on 16.10.2018.
[xxiv] Controversies And Legal Position On Remixing & Version Recordings,Scribd,
last visited: 16/10/2018.
[xxv] Supra 14.
[xxvi] Supra 1.
[xxvii] Mannu Bhandhari vs Kala Vikas Pictures, AIR 1987 Delhi 13.
[xxviii] Amar Nath Sehgal vs Union of India, 2005 (30) PTC 253 (Del)
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