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Remix culture: Impact on Copyright owner of musical works

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 idea.

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 this manner?

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 of copyright: 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 disadvantage.

Fourthly, the right of authors to receive royalties and benefits should be protected.

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.

Conclusion
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.

End-Notes
[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.
[vii] Ibid.
[viii] Gramophone Company of India v. Super Cassette Industries Ltd, MANU/DE/0227/1995
[ix] Ibid
[x] Supra 6.
[xi] Digital Opportunity: A Review Of Intellectual Property And Growth,Dera.ioe.ac.uk,available at:https://dera.ioe.ac.uk/16295/7/ipreview-finalreport_Redacted.pdf, last seen on 16.10.2018.
[xii] S.52(1) (J), The Copyright Act, 1957.
[xiii] Ibid
[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.
[xvi]Supra 8.
[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.
[xxi] Ibid.
[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.
[xxiii] Ibid.
[xxiv] Controversies And Legal Position On Remixing & Version Recordings,Scribd, available at:https://www.scribd.com/document/24977227/Controversies-and-Legal-Position-On-Remixing-Version-Recordings, 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)