REMIX VERSIONS: THE IMPACT OF LAW ON MUSIC INDUSTRY

I. Introduction

We are living in an age of remix wherein the charisma of the melody of old songs is usually revived by an entrepreneur to gain more profits and as a result, the new singer gains popularity. In the Indian context, the most popularized remix version in the early times was “Kaanta Laga” which was originally composed by one of India’s highly respected music director, Naushad. He criticised the remix version for deteriorating such a melodious song and depicting “near nude women dancing.”[i] He also said that, “I would rather not have the royalty money than have my composition treated with such disrespect.”[ii] Also, several prominent artists like Asha Bhosle, Lata Mangeshkar and Kavita Krishnamurthy are not in favour of remixes of their music titles and are disappointed by the way they are picturised. Thus, one is trapped between melody and malady. The present article will try to throw light on the legal status of remixes under the Copyright Act, 1957.

II. What Is A Remix?

The 1957 Act does not define the term “remixes”. However, as per Collins English Dictionary, it means “a new version of a piece of music which has been created by putting together the individual instrumental and vocal parts in a different way.”[iii] It is usually carried out by incorporating a few changes in an old song which entails the original musical work. For instance, old Bollywood songs like Bachna Ae Haseeno, Laila Main Laila, etc. have been remixed by adding lyrics and changing the beat of the song in order to suit the taste of present generations.

III. Originality Of Remix Versions

The most pertinent question which arises here is: Whether a remix song, which is not original in its true sense and is completely inspired from other song, formed by addition and subtraction of certain elements of original composition, is eligible for protection under the Copyrights Act, 1957? The answer lies in one of the major principles of copyright law which encompasses that a degree of originality and hard work of the author are essentials for a work to get protection under the Act. Firstly, a remix is original and creative as remixes are ‘works created by changing and combining existing materials to produce something new and creative.’ Secondly, it involves the hard work of the composer to compose a remix which would attract great public attention. Hence, as remix is not an exact copy of the original musical work, it should not be viewed as an infringement of copyright if the source of the remix is an original musical work.

However, the cultural industries of many countries believe that any unauthorized extract which has been derived from a pre-existing musical works, falls under the ambit of copyright infringement in the strictest sense as also has been recognised under section 13(3) of the Copyright Act, 1957. Thus, Remixes are violation of copyright of original musical works as the act of creating a second work that contains elements of an original work violates both, the right of reproduction and the right of communication to the public, of the original author, thereby involving intricate copyright issues.

IV. Section 31C: Saviour For Remixes

Though remixes amount to an infringement of the copyright of the owner of the work,[iv] however, if the conditions of sec. 31C are satisfied, then the remix versions are protected under the Copyrights Act. Hence, it acts as a saviour for remixes.

For a remix to qualify as not infringing the copyright in the original musical work, the following pre-requisites under section 31C need to be satisfied:

a) Consent or license of the owner of the right in the work has been obtained subject to the provisions of this section, or

b) The person making such sound recordings has given prior notice of his intention to make the sound recordings and has provided in advance, copies of all covers and labels with which the sound recordings are to be sold, and paid in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Appellate Board in this behalf. This act of the makers has bagged notoriety from the music industry and is subject to a lot of criticisms.

However, the section is not clear on the point that whether law recognizes remixes as cover versions under section 31C of the Act. Moreover, this section is subject to a lot of condemnation as it permits a person to utilize an original work and start producing after the end of five financial years from the date of commercial release, just by sending a prior notice of his intention to do so to the copyright owner and a meagre amount as royalty.

This provision also restricts the copyright protection from 60 years to just 5 years. Thus, though prior to amendments, remixes and covers both fell under the ambit of version recordings, however, present law is silent on remixes and does not extend the same courtesy to remixes as has been extended to cover versions.

V. Judicial Trends On Remix Versions

The Delhi HC in the famous Gramophone Company of India Limited v. Super Cassettes Industries Limited (1998)[v] recognized a version recording as “a sound recording made of an already published song by using another voice or voices and with different musicians and arrangers. Version recording is thus neither copying nor reproduction of the original recording”.

In the prominent case of Gramophone Co. of India v. Super Cassettes Industries Ltd.,[vi] the defendants wanted to make a sound recording of the audio cassette titled Ganapati aarti ashthavinayak geete, and thereby, paid the license fee along with sending a notice in accordance to section 52(1)(j) of the said Act. However, the plaintiffs refused to accept the cheque and did not permit them to use their work. Despite this, the defendants released their sound recording in the market. The Court observed that consent of the owner of the original work is mandatory in order not to constitute copyright infringement.

Again, observing the importance of obtaining consent in Super Cassettes Industries Ltd. v. Bathla Cassettes Industries Pvt. Ltd.,[vii] the court held that as a singer is a vital constituent of a song, any change therein should be made with the consent of the owner of the musical work with regard to section 52(1)(j) of the Copyrights Act, 1957.

The recent judgment of Bombay High Court with respect to the remixed version of “Keh Doon Tumhe” clearly states that the rights in the underlying literary and/or musical work is not subsumed by the rights in the sound recording as the copyright act separately recognises these classes of work. Moreover, section 13(4) expressly states that separate copyrights in underlying works would not be affected by the copyright in a cinematographic film/sound recording.[viii]

VI. Conclusion

The musical works are embodied in the sound recordings and these original sound recordings aids in the creation of a remix version. Since they are not original in the strict sense, they are considered as infringing the copyright in the original musical work under section 13(3) of the Act. However, if license or consent of the author is obtained, it is protected under section 31C of the Act which deals with cover versions and the present law is silent on the position of remix under the Indian law. Thus, the law has left remix in the metaphorical state of being an illegitimate child, that is, a child who exists but has no clear status or rights. Hence, there is a need for specific provision concerning remix to remove the ambiguity in the concerned area.

[Keywords]: Remix, copyrights, originality, consent, licence, recordings.

[Profile of the author]: Shubhangi Komal is a 5th year Law student in National University of Study and Research in Law, Ranchi and holds keen interest in constitutional, criminal, environmental, labour and human rights laws.

[FAQs]: 1. Who is the author of a musical work under the Copyrights Act, 1957?

Ans. As per section 2(d)(ii) of the Act, composer is the author of a musical work. A composer, as defined in section 2(ffa) of the Act, in relation to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation.

[i] Monica Chadha, Stir over India’s raunchy remixes, BBC News (Aug. 11, 2003), http://news.bbc.co.uk/2/hi/south_asia/3128719.stm

[ii] Id.

[iii] Definition of remix, Collins Dictionary, https://www.collinsdictionary.com/dictionary/english/remix

[iv] The Copyrights Act, §13(3) (1957).

[v] Gramophone Company of India Limited v. Super Cassettes Industries Limited, 1999 PTC 2 (Del).

[vi] Gramophone Co. v. Super Cassettes Industries Limited, MANU/DE/0227/1995.

[vii] Super Cassettes Industries Ltd. v. Bathla Cassettes Industries Pvt. Ltd., 2003 (27) PTC 280 (Del).

[viii] Sreyoshi Guha, Up Against a ‘Deewaar’: Bombay HC Says No to Unayrhorized Remix, Spicy IP (Sept. 19, 2017) https://spicyip.com/2017/09/up-against-a-deewar-bombay-hc-says-no-to-unauthorized-remix.html