Name: Mayukha

Remix culture: Impact on Copyright owner of musical works

Introduction
For a Bollywood worshipping family like mine, watching a Hindi film every Sunday
is almost a family ritual. About a few weeks ago, while watching the song ‘Bachna Ae
Haseeno’ at the start of the film, my mother told me that back in the 70’s, the original song
was one of the biggest chart-busters for its quirky dance moves and the catchy tune. This
immediately got me thinking about various legendary Hindi songs produced in the 80’s and
90’s, to name a few: The Humma Song, Tamma Tamma, Laila main Laila, which have been
remixed and included in films in the recent past. But doesn’t copyright law prohibit making
copies of someone else’s media? This article will essentially address the above question and
analyze the provisions in the Indian Copyright Act, that allow making a remix from an old
song and the shortcomings in the Indian Copyright Act. This paper shall further discuss
judgments passed by courts on this issue and the amendments that could be made to the
existing Indian Copyright Act.

When a person creates a product that is original in nature and has taken significant
mental activity and intellect to create, this becomes intellectual property and should thus be
protected from being copied without authorization. Essentially, copyright law does not allow
i
an individual to earn profit and appropriate to himself, the labor, skill and capital of another.
Basically, you have a copyright from the moment you create something and it needs to have
two things: it needs to be original and it has to be fixed in a tangible medium of expression as
copyright protects your expression and not your idea. Copyright can be understood as a
bundle of rights that are exclusive in nature and are held by the owner of the copyright
through Section 14 of the Indian Copyright Act.ii The owner has the exclusive right to
develop it further, right to make translations, right of reproduction, right of publication,
communication to public etc. iii

Remix Culture in the modern era

The internet has majorly supported the remix culture, where users engage with
content by creating derivative works. Remixes take many forms but a popular one is in the
idea of sampling bits from other songs or creating music mashups. Creators have started to
exist in a world where they respond to creating derivative versions of previous works. A
 Name: Mayukha

remix is made by using an old song that has the original lyrical work. This old song is
decorated, modified and transferred so as to fall under the category of an original work. The
new song is made by using audio mixing and adding and subtracting certain elements of the
original song. The lyrics are kept the same and the bass and instruments are totally or
partially altered. The original work is a poem that was written by a lyricist and the same was
made into a song with the help of an artist to sing it and a music composer to compose it. The
song must have been recorded on cassettes and discs and must have become extremely
popular, back in the day. Over the years, the singer and the composer lose their fame but the
melody and the catchy tune of the original work continue to remain attractive. Though the
original song may be quite long in length, the listener remembers the “catch part” or the
iv
“hook part”. Thus, the desire of the infringer is to necessarily copy the “catch part” and
leave the chaff, for he would attract the audience only by the attractive and not by the
v
ordinary. A resourceful new artist, capitalizes this old song and finds a singer and a
composer and adds some present day newness and some extra beats to make the song
relatable to the public. The new song is called the remix. In the Indian context, we can take
the example of the famous song ‘Tamma Tamma Loge.’ The song was a hit back in the 90’s
for its catchy tune and also the dance moves. The same song was reprised and was seen in a
latest film in the year 2017 and was called ‘Tamma Tamma again.’ Few new beats along with
a modern oomph were added to the song but the original rhythm remained the same. The
question then arises about whether or not it is lawful to exploit the original work of an artist
in this manner?

Musical work under Indian Copyright Act, 1957

Musical work is defined under Section 2(P) of the Copyright Act, 1957 to include a
vi
work consisting of music and also includes graphical notations of such work. But it does
not include any word or an action that is intended to be sung, spoken or performed with the
vii
music. It thus, makes the composer the owner of the musical work and not the singer who
sang the song. In Gramophone Company of India vs Super Cassette Industries Ltd viii, the
Delhi High Court observed:

“ Musical work is not merely a combination of melody and harmony or either of

them. Every musical composition has a structure, or shape that is the arrangement of
individual elements so as-to constitute a whole and that musical notation means a visual
instructions for performance of music.” ix
 Name: Mayukha

The Copyright Act also protects the adaptation of a musical work, which means that
it protects any arrangement or transcription to a musical work. An owner of a sound
recording is promised 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. x

Protection under the Copyright Act to remix makers

The worrying thing part about this scenario is that, so much of our normal everyday
behavior puts us at the risk of infringing copyright, as much of our life is digital. To quote
Professor Ian Hargreaves: “The Copyright regime cannot be considered fit for the digital age
when millions of citizens are in daily breach of copyright, simply for shifting a piece of
xi
music or video from one device to another.” People are confused about what is allowed and
what is not, with the risk that the law falls into disrepute. So to make law work in the digital
age, there is a need to have copyright exceptions. Section 52 (1) (j) of the Copyright Act
states that it, would not count as an infringement if there exists a sound recording of the
original literary or musical work and the person who wishes to copy it has given a due notice
of his intention to use it and make a sound recording and has also paid the original owner-the
xii
royalty price that has been fixed by the Copyright Board. The person wanting to make the
remix, cannot make alterations without taking the consent of the owner or cannot make
changes which are not reasonably necessary for the adaption of the work. xiii The new sound
recording should not be marketed with labels or packaging that might mislead the public
about the identity of the artist. The remix should not be made until the expiration of two years
after the end of the year in which the original song was made xiv. The original owner has the
right to inspect all records and books related to the remix. The consent of the owner of the
original song is of great importance as the original sound recording was created by him and
he enjoys the exclusive right of ownership. If the owner of the copyright, brings a complaint
to the effect that royalty has not been paid in full and if the Copyright Board is prima facie,
satisfied about this complaint, it may pass an order asking the sound recording to stop making
any further copies and after conducting further inquiries, it may take necessary actions as it
thinks fit.xv Section 52 (1) (j), states that works like music and sound recordings are subject to
 Name: Mayukha

seeking permission from the owner of the copyright for certain uses and changes. This acts as
legal authorization to use the copyrighted work in certain ways as long as the user pays the
required fee and otherwise meets the conditions in the law.

Case laws on Section 52 (1) (j)

Taking the consent of the original owner of the musical work is of great importance as
xvi
laid out in the case of Gramophone Co vs Super Cassettes. The court laid out that the
plaintiff’s consent was important for making a recording in compliance with Section 52(1) (j)
in order to not fall under the category of infringement. In the present case, an audio cassette
was made with the title ‘Ganapati aarti ashthavinayak geete’. The defendants wanted to
make a sound recording that consisted of the original sound recording and thereby offered to
pay a license fee for the same. xvii The plaintiffs did not agree and returned the cheque which
clearly shows that they did not give permission for the usage of the musical work. Even after
xviii
this, the defendants brought out their sound recording. Thus, without the consent of the
owner of the original work, it shall be an infringement. But in the case of Gramophone Co vs
Mars Recording, the court held the contrary and stated that as long as the conditions of
Section 52(1) (j) of the Act are followed, there would be no infringement. There is no
xix
requirement of obtaining a license/consent. In the case of Super Cassette Industries
Limited vs Bathla Cassette Industries Pvt. Limited, it was held that there can be no change of
the singer in a vocal rendering as that is a vital constituent of a song and should not be done
without obtaining previous consent of the owner of the musical work- in accordance to
Section 52 (1) (j)xx. The voice is the soul and essence of a song.xxi

A recent case that also attracted copyright infringement, is the case where 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.xxii The owners of the original song questioned this move and sued Hindustan
Coca-cola Beverage Private Limited, Hindustan Cola-cola Holdings Private and the singers
of the remixed version by sending a legal notice for copyright infringement stating that there
was no license or authorization that was sought or given, the branding of the song made it
seem like an Odia number, though the fact of the matter is that it was originally written as
well as released as a Sambalpuri number and the remixed version mispronounced
xxiii
several words and there was unauthorized incorrect usage of the original song. According
to Section 52 (1) (j), there are certain provisions that need to be followed before making a
 Name: Mayukha

remix version of the song. Though it is true that remixing music is an effective way of
reaching out to the young generation but if it is viewed as an offence to culture, the rights of
the original owner should be kept alive.

Premise of controversies around Section 52 (1) (j)

Section 52(1) (j) acts as a rulebook that needs to be followed before copying a
musical work. This section has been highly criticized and various complaints have been
received especially from the Indian music Industry as this Section allows a person to utilize
original sound recordings after two years of the commercial release by sending a notice to the
owner and paying a royalty fee which is 5% of the proceeds from the first publication. Thus,
xxiv
this can be viewed as curtailing the copyright protection from 60 years to straight 2 years.
This is unfair as it leads to a loophole where the maker of the remix can produce it with the
reason that he/she wishes to protect timeless music by giving opportunities to new singers,
but the original owner of the musical work could be unsatisfied with the addition of new
beats and the change in instruments, but there is only so much that he/she can do to protect
their original work. Section 52 (1) (j), clearly dilutes the 60 year age old law of protection
conferred on the Copyright owner. The limit of royalty that needs to be paid is not specified
anywhere in the act, which thus leads to payments of incredibly low amounts. There is also a
huge loss suffered by owners of original music as there is a decline in the sale of their
original music. The Act also stifles creativity and there is no clear definition of the extent of
change that is permissible.

Moral Rights under Section 57 of the Copyright Act

The only option that a copyright owner of a musical work has, is it use Section 57 of
the Act. This states that if conditions of Section 52(1) (j) are complied with, but if there is
some distortion or mutilation of the original literary work and this is prejudicial to the honor
xxv
and reputation of the owner of the original sound recording, then the owner can complain.
The existence of moral rights is consistent with the traditional raison d’etre of copyright: to
recognize and encourage the results of intellectual creativity on a level with other forms of
xxvi
property. The case of Mannu Bhandhari vs Kala Vikas Pictures, recognized the existence
of moral rights held by an author. xxvii Later, in the case of the Amar Nath Sehgal vs. Union of
India, it was noted that moral rights of an author are the soul of his works. He has the right to
preserve, protect and nurture his creations irrespective of the assignment of such copyright,
whether wholly or partially. xxviii
 Name: Mayukha

Proposed Amendments to the Copyright Act

There is an urgent need to amend certain provisions of the Copyright Act so as to
protect the rights of the owner. Firstly, the time period of using a song for remixing after the
expiration of two years from the time of releasing of the original track, should be extended to
five years. Secondly, there should be a floor rate for the amount of royalty that has to be paid
to the owner, irrespective of the number of copies sold. Thirdly, there is a need to introduce a
statutory system of licensing in order to ensure that general public has access to musical work
over the Radio and Television as well as to ensure that the copyright owners are not in a
disadvantage. Fourthly, the right of authors to receive royalties and benefits should be
protected. Lastly, if there is commercial exploitation of the work of an author, he should
receive credit for the same by the payment of royalties.

Objective of the Proposed Amendment

The proposed amendments, provide independent rights to authors of musical works
and ensure that they are not wrongfully exploited by music companies. It recognizes the
importance of the new technological era and provide solutions like a statutory system of
licensing, a floor rate for royalties etc. They also bring the Copyright Act in close comparison
and proportion to the World Intellectual Property Organization, Internet Treaties, WIPO
Copyright Treaty and WIPO Performances and Phonograms Treaty.

Conclusion
In the recent times, we have seen art evolve in various forms. Artists have been
adapting earlier music and adding a pinch of their own creativity, which in course has
brought various issues circling copyright infringement. Though we have provisions like
Section 52 (1) (j) of the Act, that permit the making of remixes if the conditions of the
Section are fulfilled, it is highly essential to protect owners of the original song and their
creativity. Thus, the Copyright Act should make way to certain amendments that cater the
needs of both: the owner of the original song and the maker of the remix.
i
Copyright in Music- A Conceptual Analysis, Shodhganga, available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/185815/8/08_chapter%202.pdf, last seen on 15/10/2018
ii
S.14, The Indian Copyright Act, 1957.
iii
Copyright Protection in India, LegalserviceIndia, available at: http://www.legalserviceindia.com/articles/cp_pp.htm,
last seen on 15/10/2018.

iv
Supra 1.
v
Supra 1.
vi
S. 2(P), The Copyright Act, 1957.
vii
Ibid.
viii
Gramophone Company of India v. Super Cassette Industries Ltd, MANU/DE/0227/1995
ix
Ibid
x
Supra 6.
xi
Digital Opportunity: A Review Of Intellectual Property And Growth, Dera.ioe.ac.uk, available at:
https://dera.ioe.ac.uk/16295/7/ipreview-finalreport_Redacted.pdf, last seen on 16.10.2018.
xii
S.52(1) (J), The Copyright Act, 1957.
xiii
Ibid
xiv
Remix and Copyright Law, Nopr.niscair.res.in, available at:
http://nopr.niscair.res.in/bitstream/123456789/3618/1/JIPR%2010%282%29%20106-111.pdf, last seen on 16.10.2018.
xv
Supra 12.
xvi
Supra 8.
xvii
Supra 8.
xviii
Supra 8.
xix
Gramophone Co., of India vs. Mars Recording Pvt. Ltd. MANU/SC/0532/2001.
xx
Super Cassette Industries Limited vs Bathla Cassette Industries Pvt Limited, 2003 VIIIAD Delhi 572.  
xxi
Ibid.
xxii
De-coding Indian Intellectual Property Law, SpicyIP, available at: https://spicyip.com/2015/07/the-ranga-rangabati-
copyright-row.html, last seen on 16.10.2018.
xxiii
Ibid.

xxiv
Controversies And Legal Position On Remixing & Version Recordings, Scribd, available at:
https://www.scribd.com/document/24977227/Controversies-and-Legal-Position-On-Remixing-Version-Recordings, last
visited: 16/10/2018.
xxv
Supra 14.
xxvi
Supra 1.
xxvii
Mannu Bhandhari vs Kala Vikas Pictures, AIR 1987 Delhi 13.
xxviii
Amar Nath Sehgal vs Union of India, 2005 (30) PTC 253 (Del)