This article is written by Shreya Tripathi of Banasthali Vidyapeeth, Jaipur. She has discussed the Copyright law governing remix culture with various rights given to the original creator.
For Bollywood fans like my brother who almost watch movies every Sunday, it’s a part of their schedule. They worship Bollywood Hindi films. A few days back my brother was watching a movie and was saying that the 90’s films were so good as they do not copy the idea of any other movies or songs. He was disappointed by the upcoming remix songs because the remix version has removed the purity and originality of songs. He gave me a list of songs which are converted into remix version like- Tamma Tamma, Bachna Ae Haseeno, Humma etc., at that moment this situation brought a question in my mind that Why does the Copyright law not protect individuals from making copies and remix version of old songs?
What is Copyright law?
Copyright is a law which gives protection for works given to a creative person who is doing something different in the field of literature, music, dance, artistic work etc. To protect their work from being copied or used by someone else without their permission. In fact, it is a bundle of rights which include reproduction rights, translation work, adaptation and communication with the public.
Here, we are specifically talking about “Musical work” defined under Section 2(p) of Copyrights Act, 1957- “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 music”. As per Copyright Act under Section 14 of the Act “Copyright” is defined as one of the exclusive rights given to the individual who is authorised for doing certain acts.
In case of Musical, literary or dramatic work, not being computer program:
- To reproduce the work in a material manner which includes storing of it in any electronic medium.
- To issue copies of work for the public and it should not be circulated already.
- To communicate and perform the work in public.
- To create any cinematography work or sound recording.
- To make any kind of translation.
- To make any kind of alteration or adaptation in the work.
In case of Computer Program:
To perform any of the acts mentioned above or to sell or give it on the rental way the copies or any part of it to use it in commercial purpose.
In case of Artistic Work:
- To make any kind of adaptation or modification in the work.
- To reproduce the work in any material form which includes 3 dimensional or 2 dimensional work.
- To communicate with the public regarding the work.
- To convert the work into cinematography work.
- To issue the work to copies for the public.
In the case of Cinematography film:
- To make a copy of the film including images or pictures in it for making a new part in that movie.
- To communicate or share the film with the public.
- To sell or give a copy of the film or whether such copy has sold earlier.
In the case of Sound Recording:
- To create any other sound recording in relation to that.
- To sell or give on hire copies of sound recording.
- To communicate it with the public.
After the prior amendment by the Bombay High Court “Remix” and “Cover” are considered under the category of “Version Recording”.
What is Remix?
When sound recording is done of some additional elements added with some different music or beats then it becomes remix of the original song. Then the work created by remix will be considered new work or modifications to the old version? Even though the new work is somewhat different from the original work, the author is required to obtain a licence from the owner of the original work. There is no specific provision or process is given under the Copyright Act for obtaining a licence for remix work as it is given for Cover version work.
A recent example related to the making of a remix version is very popular song Sambalpuri song Rangabati which was telecasted on Coke Studio some days back. It became a great hit version on Youtube and the original version of Rangabati was made in English and Tamil version including the State anthem of Orissa in the song. The original singer and the music director have alleged for infringement of copyright and claimed compensation for Rs. 1 crore with a legal notice attached to it, that if he fails to pay the claimed amount then legal action will be initiated.
Is it Illegal to Remix?
If remix is done without taking prior consent from the original owner will lead to illegal remix. So, to make it lawful a legal checklist should be made.
- Purchase a copy of songs because pirated music will fall under illegal manner.
- Prior permission should be obtained from the owner of the copyright.
- Maintain all the records of permission related to copyright.
And people who want to just mix some of the music for their personal use no need to go for this lengthy process, unless their money is involved.
Copyright of Cover version in India
Amendment done in 2012 brings up and down changes in the rights of Musician, Performer or Lyricist etc. Section 31C of the Act provide Statutory licence that can be obtained for creating Cover Version. Statutory licence is governed by the provisions of the Act and general licence consists of terms and conditions agreed upon the licensee or licensor.
Major highlights of the provision
- A new cover version cannot be created until the expiration period of 5 years get over of the original recording.
- It has to be in the same manner as the original one.
- Prior consent of the owner should be taken for making cover version.
- Cover or labels of the songs should be disclosed to the owner in advance before the release of the song.
- Copyright board should the fixed amount for paying a royalty.
- The creator of cover version should mention about the original sound.
- No alteration should be made unless it is required necessarily.
- A Book of Account should be maintained by the author of the cover version owner which can be inspected by the real owner of the original work.
If such cover version is made without taking prior permission or license from the owner of the original sound recording then it will amount to infringement. The owner can file a suit against the creator of cover version for infringing his moral rights as the person modified or altered his original work without any permission.
Differentiate between Remix and Cover
The remix is used in a production context, where reconstruction is made by adding effects, edits, DAWs (Digital audio workstation) etc.
The cover is often used in a band context, where one singer performs with another artist.
The remix is totally different from the original work. Different harmony, structure etc.
The cover consists of all most all the same elements which are in original work.
Remix performer tends to present with the original author is work presentation.
Whereas, cover performer tends to replace the original author from work presentation.
Is Copyright law the same for all types of work?
The answer is no, as it differs from work to work. In the case of literary work except for a computer programme, it is an exclusive right define under Section 14 of the Copyright Act.
- For the reproduction of work.
- To perform the work at a public place.
- For making any kind of translation regarding the work.
- To issue copies of work.
- To make an adaptation of the work.
What are the rights given in relation to musical work?
Refer to the above-mentioned point to know about the right given in relation to musical work.
Who is the Copyright Owner of Musical work?
The actual owner in Musical work is the Producer, not the Singer. According to Section 2(d)(ii), the author is “Composer” of the musical work.
Different kinds of Rights in Musical Work
As the owner of a copyright has the exclusive right and these include certain other rights also like to reproduce the work, to distribute copies of copyright work to the public, to work or perform in public by means of digital audio transmission, to make derivative work based on the work and in the case of sound recording.
Copyright gives you the right to record music, sell, to distribute its copies in various ways like CD, digital download etc., create something new and innovative from your previous original work as post your music on youtube, online on you timeline keep them on the trending path, give live performances at various occasion or event in different places or cities. It does not only allow to create more ideas but on the other hand, it also restricts from misusing the original work of the real owner of the creation.
What is Reproduction right?
It is one of the important rights given to owners of any creation. Reproduction right means the only owner has right to make copies of work and for doing an infringement if a substantial part of the work is also copied then it will fall under infringement it is known compulsory to copy the work part of the work. For example– Making copies of a sound recording or musical work in CD, computer file, included in a movie etc.
What is Mechanical Right?
It is required when you need to reproduce or distribute your musical work. This right is mostly used by the record company and the amount is paid by the record company as per unit and it will be paid to publisher or publisher.
What is Synchronization Right?
In synchronization, the performance is merged with the visual image on sound recording in a specific manner. It is important in the use of songs and on TV shows, movies and other media related to it.
What is Derivative Right?
Under derivative right, you can use the original work to make alterations in it. For example, taking a song and merging or adding some new lyrics to it and some different elements to make it a better version of it.
What is Display Right?
Display right provides a right to present or display your work in or to the public.
What is Adaptation Right?
It is used when someone rewrites your song and plays it with different instruments or by including a small new part to it. The Copyright Act defines the following:
- Conversion of dramatic play into no dramatic work.
- Re-arrangement of a literacy work.
- Conversion of literary work into drama.
- Depicting any comic form or through pictures or dramatic.
What is Performer Right?
Any artist who performs their work have Performer Right and “Performer” includes juggler, singer, dancer, musician, actor etc. Section 38 tells about the Right of performers and Section 38 A lays down legal provisions related to it which give exclusive rights for doing any act in respect to performance. It can be categorized into 3 parts.
- Live performance– when he performs his or her work in the audience then he has right over that particular performance.
- Performance in cinematography with credit– when the performer gives his right in a written agreement to use his work for a commercial purpose, performers should be entitled to receive some royalty or some monetary gain.
- Performance in cinematography without credit– there are many performances is supporting cast which is basically known as extras” in any film or play etc. till now copyright act does not give any kind of protection to this kind of people except Moral Right.
Section 39A confer moral right to the performers to claim the author of the work and the right of integrity to work.
What is “Commercial Utilisation” of a performance?
It includes Playing of sound recording and live performance also. All commercial performance included- playing music in restaurant, hospital, radio, television, cinema etc. even the organiser of sports events like IPL where music is played for entertainment purposes must pay royalty or licence fee amount to the owner. But when it is used to teaching, personal or research purpose the right is not infringed.
Playing remix version in Club?
An individual has permission to create a new remix version from the copyright holder but they cannot play remix version in the club without granting permission for performance right, it will be considered an illegal act. In a club, DJ will not be liable to pay the amount of royalty, it will be paid by bar or club owner. If the remix music is used with the actual performance will be covered under fair use, but the more you profit without granting prior permission the more you break the laws.
The owner of the musical work is the composer, not the singer who sang the song. Gramophone Company of India vs. Super. In this case, the Delhi High Court observed that musical work is not a combination of melody or tuning work but every composition has its structure, shape to prepare the whole notation for music. And under Copyright Act Section 14 (e) provides certain rights to the owner for protecting their work which includes the right to sell or hire, any copy of the sound recording and right to communicate with the public.
Moral right under the Copyright Act
When Section 52(1) is applicable and still some kind of mutilation or alteration took place in the original work which will hamper the work and reputation of the owner then he can complain under Section 57 of the Act. Basically, the purpose of moral right is to encourage the production of creative work in Intellectual Property.
Mannu Bhandari vs. Kala Vikas Picture, recognised that existence or moral right is important for the author. Amar Nath Sehgal vs. UOI, it was said that moral right is the soul of author work and he has the right to protect and preserve his work irrespective of being copied wholly or partially under Copyright Act.
Protection of Remix maker under the Copyright Act
Nowadays people are so confused about what is allowed and what is not. So, to clear this confusion there is need to have exception of the Copyright Act under Section 52(1) according to which a person can copy musical work, artistic work or any other work will not fall under infringement because has given a prior notice of his intention and paid advanced royalty to the owner of the original work. The people who want to make the remix version cannot make any modification in the original work without taking prior permission from the owner. The new version of sound should not be marketed otherwise it will lead to confusion for the public about the identity of the original owner and the making of remix should not be done before the expiration of 2 years in which the original sound was made.
The owner has every right to inspect all the Books of Account related to remix work. If a problem arises related to payment of royalty then the complaint will be made by the owner and the copyright board deal with the complaint and after getting sure about the complaint order will pass to stop making further copies and inquiry will be conducted and action will be taken as required.
Taking the consent of the original maker is very important. In the case of Ganpati Aarti Ashtvinayak Geete, the defendant wanted to make an audio cassettes in regard to Ganpati Aarti for that he asked for the original sound recording from plaintiff and offered a licence fee but plaintiff rejected the offer with impliedly mean that permission was not granted on behalf of plaintiff but still defendant brought the sound recording for making the cassettes which were totally the act of infringement.
So, working without the permission of the original owner will lead to infringement. But in Gramophone Company vs. Mars Recording, case the court held that if condition given under Section 52(1) is followed will not be called as infringement and no requirement for granting any kind of consent or licence.
In Super Cassette Industries Ltd vs. Bathla Cassette Industries Pvt Ltd, it was said that no change should be done in the voice of the singer because the voice is the soul of every song and it is a vital part of the song without taking consent from the original owner.
Amendments to be made
- The time duration of using the original sound recording for creating a remix version should be extended from 2 years to 5 years.
- A fix and reasonable rate should be made for paying a royalty to the owner.
- Need to introduce the statutory licence system so the general public has access to musical work through Television or Radio and make sure the owner does not face any type of loss.
- Right to receive royalty should be protected and if exploitation of the work happen commercially then it will be credited to the amount of royalty to the owner.
So, it is very essential to take prior permission from the owner of the original sound recording for making Remix version and the remix version owner should always give special credit to the original sound owner for the permission of making a remix of it. More rigid rules should be made to protect the work and the rights of the original owner otherwise it will not motivate them to create something new and different for public and people should also understand the consequences of their act.