By
Rajlakshmi V. Nesargi
ADVOCATE
BAL, LLB; LLM (IP)(USA)
INTRODUCTION
The technological development in the musical world in particular has brought along with it a new generation of “Copy Culture”. The copyculture used in making creative changes in the existing Indian songs has been generally termed as version recordings. Three types of version recordings have so far been defined: cover versions that are also called version recordings, medleys and remixes. A trace of Indian music reveals to us a pop, rock, and gazal genre of music that were highly successful amidst the Indian population. The present genre of music that seems to have made a latest success in the chart busters is the version recordings, a result of the technological development. It has been defined in Super Cassette Industries Ltd. [1] as the singing of a well-known song by a lesser-known singer. Essentially there are two ingredients present in version recordings; different singers and different orchestra. Along with version recording came the existence of medleys which are musical selection where music is one minute or two minutes long and are basically an arrangement of snippets of original song according to the arranger’s choice. After the success of such daring musical experiments came the existence of remixes that are basically an adaptation of old tunes to a new arrangement. The history of remixes that began in 1990’s shows a development series beginning with eco effect that can be heard in the cassette present in the market; Mukesh’s songs, Mohd. Rafi’s songs, Lata Mangeshkar’s songs, Asha Bhosle’s songs etc. Then came series of songs remixed with “Jhankar beats” that had certain jhankar beats added to the already existing songs. Subsequent to these successful mixes came the version recordings where the evergreen songs were produced by making lesser-known singers sing with the same background music played by a different orchestra. The trend that now persists changed quite substantively when the audio effect was extended to the video. The “not so serious” experimentation in music took a serious turn when competition became extensive in the Indian music world.
The legal issue that arises out of the traditional concepts of Copyright Law is that it does not recognize such works as individual original works but rather terms it as “copying” and rates such work as an illegal work if created without the permission of the original copyright holder or where it does not adhere to the provisions relating to the making of such version recordings and hence the presence of the gap between the technological development and the copyright law.
The article traces the legal issues arising out of the specific provision provided for facilitating such recordings and the impact of such legal interpretation on the Indian music industry.
ADVENT OF COPY CULTURE IN INDIAN MUSICAL INDUSTRY
The advent of silicon chips and integrated circuits in the 1960’s introduced into the international music industry a new dimension of ‘copy culture’ leading to the emergence of cassette technology now to the presence of DVD’s, VCD’s and CD’s. The cassettes were the first of its kind that had the ability to be used for audio reproduction and distribution and hence changed the monopolistic nature of production and distribution of phonograms. The cassette culture still exists because of its low cost and its enablement to the lower-income groups to enjoy access to both consumption of recorded music and reproduction[2]. Along with the advent of cassettes came other re-recording mediums like DVD’s, VCD’s and CD’s.
The world of version recording is a result of the nature of the “copyculture” where copying a single original copy doesn’t cost much except the cost of a computer, a CD writer and blank CD’s or cassettes[3] thus making this business extremely competitive.
The competitiveness has gone up to the extent that a single phone call by the big company to the small company about the version recording needed in the album along with the video theme is all that is needed to trigger the small companies to make a call to the studio to get the songs version recorded. Further it only takes a single evening to get the entire album done and sent to the particular market where such version recordings are in demand. The high return to the small investments needed has made the entire industry of version recording a highly lucrative business at the same time competitive.[4]
There has been a corresponding increase in the number of litigations along with the increase in the competition in the world of version recording due to the presence of the provisions facilitating it.
The technological changes in the music world resulted in the 1994 amendment of The Copyright Law. The first inclusion of the provision for facilitating remixes and musical creativity upon the existing music was under the Chapter XI of The Copyright Act, 1957 that pertains to certain acts not amounting to infringement.[5] The members of the Indian Music Industry state that the present provision provides a nature of “compulsory licensing” and not “fair dealing” kind of a provision. The nature of fair dealing is to provide exception to certain works that is worked upon using certain amount of already existing copyrighted work for a non-commercial purpose. To be protected under fair use one should use only substantial part of the work that would not amount to infringement and one does not have to seek permission or license to use copyrighted work. On the contrary compulsory licenses are licenses that can be obtained in cases where IP owners do not want to depart with their rights and where such transfer cannot be otherwise done with. The compulsory licenses are provided only after the complainant has fulfilled the statutory requirements required as per the law. The language of the statutory provision misleadingly reflect a “compulsory license” kind of interpretation that version recordings are a kind of fair use whereas it is not. The consent is deemed to have been given if the statutory conditions laid down in clause (j) sub-section (1) of Section 52 and Rule 21 is abided with. In other words the non-compliance of these provisions would render the work illegal.[6]
The interested version recorders were temporarily contented with the statutory provision until the unsolved practical problems glared into their face. [7] The reading of the clause (j) of sub-section 1 of section 52 meant that the interested parties in version recording had to essentially wait for the consent of the original music copyright owner. The issue that arouse out of this interpretation by the interested parties is that the original music copyright owners had to essentially give their consent to the adaptation that was either never given or never granted at the time when the adapted music would have otherwise sold in more profitable numbers since version recordings hold a short life in the markets.
The interested version recorders needed a provision that would facilitate the version recordings without having to wait for the consent of the original music copyright holder. Hence the amendment of the section that still holds its place in the year 1998.[8] Along with this amendment the definition of sound recording was also amended to provide a technologically neutral definition[9] unlike that provided before the amendment.[10]
The repercussions of the amendment is that there seems to be rising confusion as to the kind of music that amounts to being “original” and whether version recording amounts to individually created original work that has sufficient independent spark of creativity or is an adapted work. [11]
[T]he plaintiffs’ case is that in re-recording the song in question the plaintiffs had to engage musicians, singers and music conductors and to create the original music track of the musical works. It was further submitted by the plaintiff that in re recording it has used sufficient independent skill and labour and has therefore, got its own legitimate and legal rights of copyright in the Record and the musical work so produced. The record produced was a substantially new arrangement and/or necessary adaptation of the existing records. The plaintiff’s case was that its sound recording (version recording) would be entitled to a separate sound recording copyright and the reproduction of the same would require the licence and consent of the owner of the copyright in the version sound recording, i.e., the plaintiff. It is Mr. Anand’s plea that the defendant is not entitled to make a recording of a version recording produced by the plaintiff and the defendant is not entitled to avail of Section 52 (1) (j) qua the plaintiff’s recording.
Further, issue remains why the Courts do not look beyond the technicality of the matter and decide if a transformed work amounts to original work or if it amounts to work of fair-use as was decided in Campbell[12] where an entirely new mood (parody) was adapted to an already existing song and it was held that this act did not amount to copying on the contrary it amounted to fair dealing. Along with such transformations also involve another intricate confusion of whether the composer of the version recording too is an author or whether he is the owner who has to pay royalty as specified by the Indian Copyright Board.[13]
There are further issues arising out of these provisions as in compliance with the mandatory Rule 21 the absence of compliance of which gives rise to an illegal work.[14]
The other corollary issues that arise are on low royalty, the two years reduced time limit granted before making version recording that reduces the potential market of the original songs etc.
An ongoing debate whether the provision to facilitate version recording should be amended or removed is yet to be considered during the 2004 winter session of the Indian Parliament.
It is very true that the very definition of what amounts to original work and what amounts to copy work have changed after the instruments used to make copies of the original works have come into existence.[15] Hence the time to give a broader interpretation to what amounts to original work has to be broadened instead of strictly interpreting the clause (j) of sub section 1 of section 52.
What we need in India is similar kinds of interpretation which allow Copyright to survive keeping section 52 (1)(j) or else get done with it so that issues arising out of Section 52(1)(j) are also done with and further the arising issues would be decided as would other matters under the Copyrightable subject matter would be decided.
Remixed songs due to technological development are so distinct from the original songs that they should be given the ‘originality’ status. Further the Copyright Act should be suitably amended to accommodate such subsequent technical changes and allow such creativity, as is the source of the emerging issues. In other words the law, not just the Copyright Act but other laws should catch up with the technological changes otherwise the law itself might become redundant.
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FOOTNOTES
[1] Super Cassette Industries Limited v. Bathla Cassette Industries Pvt. Limited, IA No. 1766/93 in Suit No. 381 of 1993,Decided On: 09.09.2003
2Cassette Culture : Popular Music and Technology in North India (Chicago Studies in Ethnomusicology)by Peter Manuel
3 Personal Interview with Bhagwati Prasad, researcher with SARAI working in this area since two years in the month of April, 2004.
4 Personal Interview with Bhagwati Prasad, researcher with SARAI working in this area since two years in the month of April, 2004.
5 Section 52 Certain acts not to be infringement of copyright (1) the following acts shall not constitute an infringement of copyright namely- (j) the making of recordings in respect of any literary, dramatic or musical work, if-(i) records recording that work have previously been made by, or with the licence or consent or, the owner of the copyright in the work; and (ii) the person making the records has given the prescribed notice of his intention to make the records, and has paid in the prescribed manner to the owner of the copyright in the work royalties in respect of all such records to be made by him, at the rate fixed by the Copyright Board in this behalf; Provided that in making the records such person shall not make any alterations in, or omissions from, the work, unless records recording the work subject to similar alteration and omissions have been previously made by, or with the licence or consent of, the owner of the copyright or unless such alterations and omissions are reasonably necessary for the adaptation of the work to the records in question.
6 Mars Recording Pvt. Ltd. v. The Gramophone Company of India Ltd. decided on 28th Day of February 2004 at the VIII Addl. City Civil Judge (CCH 15) (unreported)
7 Ibid.
8 Section 52(1): “following shall not constitute infringement of copyright, namely: –
(j) the making of sound recording in respect of any literary, dramatic and musical work, if:: –
- sound recording of that work have been made by or with the licence or consent of the owner of the right in the work;
- the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that-
- no alterations shall be made which have not been made previously by or with the consent of the owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose of making the sound recordings;
- the sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity;
- no such sound recording shall be made until the expiration of two calendar years after the end of the year in which the first recording of the work was made; and
- the person making such sound recordings shall allow the owner of rights or his duly authorized agent or representative to inspect all records and books of account relating to such sound recording:
Provided further that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this clause, the Copyright Board is, prima facie satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty;
This section is read along with Rule 21 of The Copyright Rules, 1958
Making of records. –
- Any person intending to make sound recordings under clause (j of sub-section (1) of section 52 shall give notice of such intention to the owner of the Copyright and to the Registrar of Copyright at least fifteen days in advance of making of the sound recordings and shall pay to the owner of the copyright, alongwith the notice, the amount of royalties due in respect of all the sound recordings to be made at the rate fixed by the Copyright Board in this behalf and provide copies of all covers and labels with which the sound recordings are to be sold.
- Such notice shall contain the following information, namely: –
(a) the particulars of the work in respect of which sound recording are to be made;
(b) alterations, if any, which are proposed to be made for the adaptation of the work to the sound recordings;
(c) the name, address and nationality of the owner of the copyright in the work;
(d) particulars of the sound recording intended to be made; and
(e) the number of sound recording intended to be made; and
(f) the amount paid to the owner of the copyright in the work by way of royalties and the manner of payment.
9 means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.
10 Whereas the meaning provided to “records” is that any recording done in discs, tapes, perforated rolls or other devices in which sounds are embodied so as to be capable of being reproduced therefrom.
11 Super Cassette Industries Limited v. Bathla Cassette Industries Pvt. Limited, IA No. 1766/93 in Suit No. 381 of 1993,Decided On: 09.09.2003
12 Campbell v. Acuff Rose 510 US 569 (1994)
13 Super Cassette Industries Limited v. Bathla Cassette Industries Pvt. Limited, IA No. 1766/93 in Suit No. 381 of 1993,Decided On: 09.09.2003
14 Mars Recording Pvt. Ltd. v. The Gramophone Company of India Ltd. decided on 28th Day of February 2004 at the VIII Addl. City Civil Judge (CCH 15) (unreported)
16 Copies In Seconds (Simon & Schuster) by David Owen