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In this era of creativity and dynamism, protecting one’s skill, labour, effort, and capital is immensely important for incentivising people to bring more and more work to the world. In comparison to all forms of work that are protected under the copyright regime, music is the widest in its approach and perhaps, the most licensed. Music is based on specialised talent and creative assets and therefore it is one of the quintessential industries which needs protection. The main objective of intellectual property rights is to incentivise people in order to encourage further creativity. In the context of music, there are certain questions, fundamental but perplexing in nature, which the author attempts to answer. Through this post, the author attempts to answer questions in order to ascertain the true owner of the copyright in a song and whether remixing constitutes infringement. The author also examines the fair dealing provisions under the Copyright Act, 1957 (hereinafter “Act”) in the light of musical works.
MUSICAL WORKS, SOUND RECORDINGS AND COPYRIGHT IN SONG
Musical work is defined in Section 2(p) of the Act. Section 2 of the Act extends copyright protection to “musical works” as well as “sound recordings”, defining both these terms differently. From the definition of a musical work, it is evident that words spoken or sung are clearly excluded. Therefore, words in music cannot be conferred protection under Section 2(p), but they may qualify to be protected under the definition of a literary work, or a song composite of music and words may be protected as a sound recording. Sound recordings and musical works are two separate categories of work. Sound recording is independently defined in Section 2(xx). The author of a sound recording is the producer of the sound recording as opposed to composer being the author of Musical work. Musical work needs to be fixed and it is done in the form of sound recording. Musical work can be a content of a sound recording but all sound recordings do not necessarily contain musical work. A song composed by one, sung by another and written by someone else involves copyrights for different works. Accordingly, a composer has copyright in the music of his work and the author may have a copyright the lyrics in the work. Compositely, a producer may have a copyright in the sound recordings embodying songs.
REMIXING: A COPYRIGHT INFRINGEMENT
The Act provides for an inclusive definition of ‘musical work’. It has been held that copyright in a ‘musical work’ exists in the “harmony or melody” which is fixed through “printing, writing, or graphical work”. The ‘composer’ of a ‘musical work’ has an exclusive right to the adaptation of such work as indicated in Section 14(a) This means that the ‘composer’ has the right to arrange or transcribe its music as is reflected in Section 14(a)(vi). The Copyright Office of the Government of India, in its draft guidelines, has described ‘arrangement’ as a form of ‘musical work’ which is created by rearranging a pre-existing ‘musical work’. Further, ‘transcription’ is arranging of such work for an instrument or a voice which is different from the original form.
Remixing a musical work refers to a process wherein the beats are isolated, they are then slowed down, sped up or mixed together. Such electronic manipulation of the original composition necessarily leads to a new arrangement of the existing work. As a result, the remix becomes an adaptation of a musical work. Therefore, remixing a musical work without the permission of the composers leads to an infringement of their exclusive right to the adaptation of their musical work. This infringement is at the intersection of the two objectives of copyright; first, to protect the expression of the author and second, to foster creativity in works.
FAIR DEALING IN MUSICAL WORK
Section 52 of the Act provides permission for fair-dealing of musical works, which has been carved out to avoid claims of copyright infringement. The Delhi High Court in the case of Chancellor Masters has appropriately summarised that the doctrine of fair dealing exists in order to authorise reproduction of any work protected under copyright and to further enrich the public domain. The Bombay High Court also analysed the scope and extent of fair dealing in musical works. In the case of Ram Sampath v Rajesh Roshan & Ors., a small portion of the composition of the plaintiff was used by the defendant in a song. The defence taken was solely reliant on Section 52 of the Act, and the defendant contended that since it was a very small portion, it should not fall under the ambit of infringement. The Court observed that to identify whether there was any copyright infringement, two factors should be taken into account. Firstly, the similarity between the two works should be identified and secondly, whether the latter work would exist without the copied part. In the present factual scenario, the copied part was one of the attractive catchy portions of the original work and it was repeated 4 times. The Court concluded that it infringed the copyright of the original song even though it was just a small portion of it due to the materiality of the phrase to the song. However, a broad set of guidelines have been stated by the Delhi High Court in the case of Supercassette Industries v Hamar Television Network, to determine whether the exploitation of the original work is actually fair-dealing or not. Firstly, it would depend upon the ‘facts’ of the matter and the ‘degree’ to which the work has been copied. Secondly, ‘length’ of the work copied and its ‘extent’. Thirdly, ‘motive of the person using it’ and fourthly ‘potential market’ with regard to the work. Section 52 of the Act provides with an exhaustive list of purposes which would be considered as fair dealing. Suppose a song is played again and again on news channel for the purpose of highlighting the fact that it contains subtle innuendos against the prime minister of the country, then it would not constitute infringement. Another example could be a teacher playing a sound recording which contains recitation of alphabets for the purpose of teaching nursery kids.
Does the new version of the song Bade Acche Agte Hai played in a TV show constitute infringement? It can be argued that it is an infringement of the sound recording if the same sound recording was played but if the same tune is recorded independently then it would not be an infringement. In this case, it is not an infringement because it is not an infringing copy rather it is a “version recording”. In the case of The Gramophone Company of India Ltd. v. Super Cassette Industries Ltd, the term “version recording” is defined as a sound recording made of an already published song by using another voice and with different musicians and arrangers. In essence, it needs to be independently recorded and then it would not be an infringing copy. But there are requirements that are to be met before making version recordings. Firstly, only those alterations can be made which are necessary for the adaption of the work for the purpose of making a sound recording. Secondly, the sound recordings must not be issued in any form of packaging or with any label which is likely to mislead the public as t their identity. These conditions safeguard the moral rights of the author of the sound recording as well as exclusive rights of the copyright owner.
Music has its own realm, a part of which is shared by all the communities. A song can be protected under copyright but it is a result of a synergic effort of lyricist, composer and producer of the recording and all three are entitled respective rights. Remixing is allowed only when the permission has been taken from the composer. Fair dealing authorises the reproduction of any work protected under copyright and it enriches the public domain. Considering the fact that music because of its nexus and connect to people has a really wide approach, the protection of such form of work becomes a necessity in this era.
ABOUT THE AUTHOR
Aakarsh Kumar is a 4th year B.A.LL.B. student of West Bengal National University of Juridical Sciences(NUJS), Kolkata
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