By – Nidhi Tandon
Music has always been an integral part of our lives. Do you remember iconic songs like Bachna Ae Haseeno, Tamma Tamma and Laila mein Laila of 70s, 80s or 90s? They were all big chart-busters for their quirky dance moves and catchy tunes. The trend that you witness in movies these days is a remix version of these various legendary old Hindi songs.
Have you ever wondered if the copyright law allows these copies and remix versions of old songs? A major legal challenge is the protection of the rights of the author of the remixed work while safeguarding the rights of the author of the original work.
The advancement in technology has brought forth new and interesting changes in the nature of works and the medium of expression The ownership status of remixes under the Indian Copyright Act, 1957(Act) is one such issue.
Notwithstanding the 2012 amendments that deal with the cover versions, i.e. a new performance or recording by someone other than the original artist or composer of a previously recorded song, the status of remixes remains ambiguous. This article will essentially address this question.
Remix – Copyright in India
The Act does not define the expression remix. Traditionally, remix has been considered to be an alteration of just the beats and the tempo of an old published song, with minor additions and subtractions to the melody and lyrics of the song. We can take the example of the famous song “Laila mein Laila”. The song was an iconic number in the 80s. The same song is reprised and is seen in the film Raeez. The old song is decorated and developed with new beats and modern oomph.
So will this work constitute a new sound recording (a new work of copyright) or a modification of the original work?
Remix is a novel creation and deserves to be accorded equal protection as other forms of works. Several scholars believe that when the song is altered and re-recorded with a new voice, it becomes a new form of work and the ownership of this work remains with the author of the remixed creation and not with the original author of the work.
The Act protects the “adaption” of a musical work, which means that it protects any arrangement or transcription to a musical work. Taking the above into consideration, a remix can be considered to be an “adaptation” of the old song as it involves a “rearrangement” or an “alteration” of the literary and musical portions of the song, without really re-creating it or re-performing it.
Protection to remix makers under the Act
As per section 51 of the Act, if any person violates the right conferred upon the owner of the copyright, it shall be considered as an infringement. However, it will not be considered an infringement if:
A person copies musical work, artistic work or any other work by giving a prior notice of his intention and pays advance royalty to the owner of the original work.
The new work should not be marketed with labels or packaging that might mislead the public about the identity of the artist.
The new work should not be made until expiration of two years after the end of the year in which the original work was made.
The owner should be given the right to inspect all the books of account related to the new work.
It is clear from the above that consent of the original owner of the musical work is of great importance and the remix should not be made until expiration of two years after the end of the year in which the original song was made.
Original Author’s Special Rights
Moral rights of an author are considered as the soul of his works and a defence mechanism. As per section 57 of the Act-
“even after the assignment or the transfer of the copyright the author shall have the right to claim the authorship of the work and as well as he can restrain or claim the damages for any distortion, mutilation, modification or any other derogatory act if such act are hampering the honour and reputation of the author, before the expiration of the term of copyright”
Section 57 overshadows the terms of the assignment of copyright and will override them if there is a conflict between the two. The terms of the contract should be framed in such a way that it doesn’t hamper the moral rights of the author.
Dilution of the Rights of the Original Author
Section 52(1) (j) acts as a rule book that needs to be followed before copying a musical work. However, the ambiguity under the Act most definitely guarantees ample conflict in the case of remixes and some of these challenges are briefly discussed below.
Is a remix considered as Cover Version?
The Act is silent on statutory licenses/assignments to make remixes.
Section 31(c) of the Act deals with licensing of cover versions- The provisions appear to disallow the creation of cover recordings without prior consent. It provides that “The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings”.
Therefore, for all practical purposes, an individual can make remixes without authorization, thereby diluting the rights of the original author. At this point, it is unclear if the law recognizes remixes as cover versions under the Act.
Extent of original contribution in the adaptation of an older work
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. The owners of the original song questioned this move and sent a legal notice for copyright infringement alleging that there was no license given, the branding of the song made it seem like an Odia number though the it was originally written and released as a Sambalpuri number, and the remixed version mispronounced several words and there was incorrect usage of the original song. The egregious error that is alleged to have been made follows in this fashion – in keeping with the pace of the song, she sings, “O Ranga, O Ranga, O Ranga, Ranga, Rangabati, Rangabati”. They have used the word ‘Ranga’ instead of ‘Rangabati’ thereby completely deforming and twisting the original song. In Sambalpuri, ‘Ranga’ refers to the third gender, while ‘Rangabati’, meaning beautiful, is the name of a girl.
Does this remix amount to infringement?
As per section 51 of the Act if any person, without obtaining a license from the owner or the registrar of the copyright, performs an act that violates the right conferred upon the owner of the copyright, it shall be considered as an infringement. However, a major concern with “remixes” is the extent of original contribution in the adaptation of an older work and this often becomes challenging for courts to determine.
Curtailing the copyright protection of 60 years
The copyright protection for a musical work is for a period of 60 years from the date of publication. However, as per section 52(1)(j), a person is allowed to utilize a sound recording after two years of the commercial release of the original work clearly diluting the 60 year old protection conferred on the original owner.
The amount of royalty has not been specified anywhere, which leads to the payment of paltry amounts and the owners of original musical work are short-changed as there is also a resultant decline in the sale of their original music. The Act also stifles creativity and there is no clarity the extent of change permissible.
Remix can be perceived as a separate genre of music in the digital age, deserving the same protection as other types of works. Innumerable issues have arisen in the tug of war between the copyright holders and their so-called infringers- the remix maker but the number of independent artists publishing remixes has only been on the rise. The legal status of remix remains uncertain.
There exists a need for amending the copyright law to make it more relevant to the age of remixes and cater to the needs of both- owner of the original song and the maker of the remix. It should recognize the importance of technology and provide solutions for a statutory licensing system, a fixed rate for royalties, etc.