Introduction
When we talk about remixes, we assert “musical work” which has been defined under Section 2(p) of Copyrights Act, 1957 holding that “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.”
Relevant Provisions
The Copyright Act under Section 2 (a) (iv) defines the “adaption of a musical work”, meaning any arrangement or transcription to a musical work. Taking this into consideration, a remix can be considered to be an “adaptation” as it involves a “rearrangement” or an “alteration” of the literary and musical portions of the original song. Once it is established that a remix is an adaptation of original musical work; one tends to delve into the understanding as to when exactly this adaptation would amount to infringement? Or does the Copyright Law provide such adaptation- a defense, under certain circumstances? To answer these two questions, we delve into the provisions of Sections 51 and 52 (1) (j) of the Copyright Act. Section 51 holds that copyright shall be deemed infringed when any person, without a license granted by the owner of the copyright, makes use of his work.
Section 52 (1) (j) of the Copyright Act states that the making of sound recordings in respect of a musical work would not amount to infringement if the performance of such musical work is connected to a person directly related to such recording. The relevance of the two sections can be highlighted by judgments of similar nature.
In Gramophone Company of India v. Super Cassette Industries Ltd. [I. A NO.7050/1999] [1], the defendants sent a letter to the plaintiffs intending to make a cassette containing a new sound recording consisting of the plaintiffs’ original musical work ‘Ganapati aarti ashthavinayak geete.’ The plaintiffs, however, rejected the grant for the same. The defendants still went ahead with the new sound recording even after a license denial. The plaintiffs filed a suit contending that the act of the defendants amounted to infringement of their copyright. The defendants pleaded a defense under Section 52(1) (j) of the Copyright Act. The Delhi High Court held that the plaintiffs’ consent was required to be obtained by the defendants for making a sound recording and that the mere adherence to the provisions of Section 52 (1) (j) was not enough to not constitute an infringing copy.
In Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd. [107 (2003) DLT 91] [2], 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 with the provision under Section 52 (1) (j).
Economic Rights
Even when a license is obtained for the reproduction of an already existing musical work, the original author has an economic right in the form of royalty. It is required that the authors must receive an equal share in profits earned by the assignee via the use of original musical works.
As held in the case of Music Broadcast Private Limited v. Indian Performing Right Society Limited [Suit No. 2401 of 2006] [3], the economic rights ensure the author, the safeguard against an injury or loss of profit by reasons of any representation of his work in public by an infringer, which would have normally fetched him financial gain.
Moral Rights
In cases where there is distortion, mutilation, modification of the licensed work, the original author’s moral rights provided under Section 57 come into the picture. According to the provisions entailed in this section, the author shall have the right to claim the authorship of the work and can restrain or claim the damages for any distortion or modification of his original work.
Even though, Mannu Bhandari vs. Kala Vikas Pictures Pvt. Ltd. [AIR 1987 Delhi 13] [4] recognized the importance of the existence of moral right for the author for the very first time in India, it was Amar Nath Sehgal v. Union of India [117 (2005) DLT 717] [5] which held that moral rights are the soul and essence of a musical and literary work which allow the author to nurture and protect his creation either wholly or partially.
Conclusion
As learned from the existing regime of Copyright Laws, one can conclude that there is no strict bar on remixes. However, there are certain pre-requisites that are to be followed in order to ensure the legal protection of the rights of the original author, the non-compliance of which leads to an infringement of copyright.
Endnotes:
[1] Gramophone Company of India v. Super Cassette Industries Ltd. [I. A NO.7050/1999]
[2] Super Cassette Industries Ltd. v. Bathla Cassette Industries Pvt. Ltd. [107 (2003) DLT 91]
[3] Music Broadcast Private Limited v. Indian Performing Right Society Limited [Suit No. 2401 of 2006]
[4] Mannu Bhandari vs. Kala Vikas Pictures Pvt. Ltd. [AIR 1987 Delhi 13]
[5] Amar Nath Sehgal v. Union of India [117 (2005) DLT 717]
