Legal protection of musical works in an era of remixes
“Originality is the art of concealing your sources.”, a well-conceived phrase by one of the founding fathers of the United States, Benjamin Franklin holds relevance even after centuries since his existence. In today’s era, music has formed an integral part of our lives. Ranging from its inevitable need as a source of entertainment to its ability to serve as a means of elucidating human expression, it is hard to imagine a world without these musical symphonies. However, with the dynamic evolution of society, music has metamorphosed to keep pace with changing needs of communities. A testimony to a transmogrified form of music is “remixes”.
A remix is defined as a piece of media which has been altered or contorted from its original state by adding, removing, and changing pieces of the item. While it is a common societal perception that remixes are a phenomenon of contemporary society, the same is untrue. Most cultures around the world have evolved through the mixing and merging of different cultural expressions. A classic example of one of the earliest forms of “remixing” is the Panchatantra, an ancient Indian collection of interrelated animal fables in verse and prose, arranged within a frame story. The original Sanskrit work is believed to be composed around the 3rd century BCE, based on older oral traditions, including "animal fables that are as old as we are able to imagine". The Panchatantra was reinterpreted in the following 2300 years at least 200 times in 50 different languages all around the world. 2
In the present age of unprecedented remixes, a lack of novelty in the music industry is felt as many within the cultural industries believe that any unauthorized extract taken from a pre-existing work constitutes copyright infringement. It is arguable that the remix is a distinct type of creation and deserves to be accorded equal protection as other forms of novel works. A large section of stakeholders believe that when the composition is sliced and diced and re-recorded with a new voice, it becomes the whole body of a new form of work and eventually, the ownership of this work remains with the author of the remixed creation and not with the original author of the work.
However, section 51 of Copyright Act 1957 (Amendments 2012) states that if any person, without obtaining a license from the owner or the registrar of the copyright, performs an act which violates the right conferred upon the owner of the copyright, it shall be considered as an infringement. 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 the nature of infringement in such work. Therefore, a major concern over creating a remix has been how to protect the rights of the author of the remixed work and at the same time safeguard the rights of the author of the original works (or source materials), both morally and economically.
Another significant issue revolving around the remixing of a work includes the “moral rights” of an author which are enshrined under section 57 of the Copyright Act. According to this section, “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”. Therefore, in determining the infringing nature of a remixed creation, the test of “substantial similarity” is applied. Remix is considered an infringement if the average audience is likely to associate the remixed song to the original recording. For an author of adapted content to escape legal penalties, it is inevitable that prior consent is obtained from the original author of the copyrighted work and requisite credit is accorded to the pioneer creator.
The Indian Copyright Act gives exclusive rights to the original author of work through section 14 including the right to develop it further, the right to make translations, the right of reproduction, the right of publication, communication to the public, etc. The Copyright Act also protects the adaptation of a musical work, which means that it protects any arrangement or transcription to a musical work. The ownership of the copyright in a given song or piece of music involves several aspects. For instance, the lyrics of the song can be protected as literary work and the owner of the copyright is the lyricist. The music of the song can be protected as a musical work and the owner of the copyright is the composer. An owner of a sound recording is accorded 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.
Consequently, the author is in complete control of the work and how it is produced or reproduced. The owner of copyright also has the right to assign the copyright of the work, to third party individuals. This gives the author the freedom to choose and assign the rights over his work in a manner which both parties may deem fit in the form of a licence agreement. As per section 30 of the Act, the author of the copyright may grant any interest in the rights over his work to another, via a valid licence agreement.
It is evident that all rights are reserved to copyright owners, and all newly created rights belong to the copyright owners of the original works. Although the Copyright (Amendment) Act, 2012 expressly stipulates provisions applicable to cover versions, it does not broaden the same to “remixes.” Provision of section 31C of the Copyright (Amendment) Act, 2012, while specifically catering to cover versions of songs, does not contain a similar provision targeting remix versions of songs. At this point, it is unclear if the law recognizes remixes as cover versions under section 31C of the Act or not.
There exists a need of re-imagining copyright law to make it more relevant to our age of remixes. It is integral to consider virtual platforms similar to stage on which modern artists perform and regulate such performances accordingly. Remix is a distinct type of creation in the digital age, deserving the same protection as other types of works. Interestingly, in spite of the growing volume of lawsuits and threats, the number of independent artists publishing remixes has not diminished overall, but rather has been on the rise. Despite its unprecedented expansion, the legal status of remix remains uncertain. An offset of the regulated recognition to remixes is the plaguing issue of piracy which leads to losses suffered by the industry and defeats the very objective of copyrights, especially the time bound protection granted for 60 years. Strict regulations are required to be put in place to enable protection of rights accorded to the original author of work as well as allow innovation and creativity by providing adequate protection to adaptations including remixes.
1. DEALING ‘FAIRLY’ WITH MASHUPS – AN INDIAN SCENARIO, Kalyan Revella, October 2018, ResearchGate available at https://www.researchgate.net/publication/328418135_Mashup-An_Indian_Scenario.
The article was originally published on www.lexology.com on April 01, 2020 and can be accessed here.