Legality of remix music in accordance with copyright laws in India
Adv. Sakshi Shairwal
Can you recall iconic songs like Bachna Ae Haseeno, Badanpe Sitare, Kehdoon Tumhe and Laila main Laila of the 70s, 80s, or 90s? They were all blockbusters. The trend that you behold in movies or web series nowadays is a remix version of these several renowned Bollywood songs. YouTube and Instagram Reels are crowded with videos of people or #influencers singing and lip-syncing on songs of their own calibre. Talking about the remixes, the composers are modifying the musical harmonization by adding or changing beats and lyrics. Will this constitute copyright infringement if done with the lack of the original composer’s consent?
A remix can be elucidated as a media composition that has been customized from its original condition by augmenting, eliminating, and altering segments of the music/tune. In the current era of exceptional remixes, a shortfall of originality in the music industry is discerned as several people are of the opinion that any unsanctioned extract taken from an already established work amounts to copyright infringement. Furthermore, the remix has made a significant input to the society by providing entertaining content and has become a consequential part of User-generated Content (UGC). Remixes have also made a substantial contribution when it comes to social media, for instance, Facebook, Instagram, YouTube, Snapchat, Pinterest., etc. Additionally, the Copyright Act incorporates sound recordings that account for any song with or without music and may encompass podcasts or audios. Taking the example of Spotify, all the audios and podcasts are copyrighted. We are quite aware of the fact that the moment something is created, it is conventionally considered as a copyrighted work (whether it might be registered or not). If a remix is created without taking prior consent from the original owner, it will result in an unsanctioned remix and other repercussions for the same. Hence, to make it permissible a legal checklist should be followed.
REMIX MUSIC AS PER INDIAN COPYRIGHT LAW
The Indian Copyright Law has its origin the colonial rule in 1847. In 1914, copyright law was again passed in India with few important amendments. The regulations of 1914 continued till the enactment of new legislation in 1957. The new legislation was termed the Copyright Act, 1957. In 2012, the Parliament proclaimed the Copyright (Amendment) Bill, 2012 whichintended to bring the Indian Copyright Laws on an international scale and in compliance with the World Intellectual Property Organisation (WIPO) treaties, for instance, the WIPO Copyright Treaty (WCT) and the WIPO Performance and Programme Treaty (WPPT). The amendments brought in the year 2012 were:
i.) Amendments in the right to artistic work like cinematograph films and sound recordings.
ii.) Amendments in the mode of licensing and assignments.
iii.) Amendments in compliance with WIPO treaties.
iv.) Maintaining all the records of copyright authorization.
v.) Protection against internet piracy.
vi.) Safeguarding remix makers under the Copyright Act.
vii.) Prior consent must be obtained from the owner of the copyrighted work.
SECTION 52 OF THE COPYRIGHT ACT
Section 52 (1)(j) of the Copyright Act affirms that it will not amount to infringement if a sound recording of the original literary or musical work prevails and the person who seeks to copy it has given a due consent to use it and create a sound recording and has also remunerated the original owner-the royalty cost that has been predetermined by the Copyright Board.
The person seeking to create the remix cannot make modifications without having the consent of the owner or cannot make alterations that are not obligatory for the conformity of the work. The new sound recording must not be promoted with labels or covers that might deceive the public about the originality of the artist. The remix should not be produced until the expiration of two years following the year-end in which the original song was created.
Ownership under the Act: The original owner has the right to scrutinize all the records and publications with reference to the remix. The assent of the owner of the original song is consequential as the original sound recording was made by the owner and thus, he possesses the exclusive right of the title. If the possessor of the copyright brings a complaint to the effect that royalty has been unpaid or if the Copyright Board is prima facie, contented about such complaint, it may warrant an order bringing halt in production of sound recordings and after carrying out further inquiries, it may adopt the necessary measures as per its suitability. Section 52 (1) (j), states that works as music and sound recordings must acquire a permit from the owner of the copyright for specific performance and modifications. This acts as a legitimate sanction to use the copyrighted work in a certain sense provided that the user pays the requisite fee or else meets the stipulations in the law.
SAFEGUARDING REMIX MAKERS UNDER THE ACT
According to Section 51 of the Act, if any person violates the right bestowed upon the owner of the copyright, it shall be deemed as an infringement. Although, it will not amount to infringement in such cases, where:
i.) A person copies musical work, artistic work, or any other work by giving his prior consent and making down payment to the owner of the original work.
ii.) The new work should not be promoted with labels or covers that might deceive the public concerning the artist’s identity.
iii.) The new work should not be created until the expiration of two years following the year-end in which the original work came into existence.
iv.) The owner should be bestowed upon the right to scrutinize all the books and publications with reference to the new work.
v.) It is comprehensible from the aforementioned points that consent of the original owner of the musical work is of paramount significance and the remix must not be made until the expiration of 2 years following the year-end in which the original song was created.
REMIX AS A COVER VERSION?
The Act is not willing to divulge information on statutory licenses to make remixes. Section 31(c)of the Act states about the licensing of cover versions. The provision seems to proscribe the making of cover recordings without prior consent. It proclaims that “The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings”.
Notwithstanding, for all practical justifications, an individual can create remixes without permission, thereby attenuating the rights of the original owner. To this day, it is obscure that whether the law apprehends remixes as cover versions under the said Act.
Getting the consent of the original maker is consequential the case of Ganpati Aarti Ashtvinayak Geete, the defendant desired to create audio cassettes with reference to the Ganpati Aarti. He requested the original sound recording from the plaintiff and proffered a license fee, but the plaintiff declined his offer and hence the consent was not granted on behalf of the plaintiff. Nevertheless, the defendant bought the sound recording for making the cassettes which were later held as an act of infringement.
Working without the permission of the original owner will result in infringement: In Gramophone Company vs. Mars Recording, case the court held that observing the requirements mentioned under Section 52(1), will not be considered as an infringement and there will not be any obligation for granting any consent or license.
In the case Super Cassette Industries Ltd vs. Bathla Cassette Industries Pvt Ltd, it was held that as such no modification should be made in the voice of the singer as the voice is the soul of every song.
NEED FOR AMENDMENTS
1.) The statutory licensing system: The license that is required to be procured in order to launch any remix song needs to be upgraded.
2.) Royalty: the royalties which are to be paid to the original owner of the song requires to be prescribed as the cost of royalty to be paid is not mentioned under the act.
Copyright Act protects the work of the artist/proprietor and confers the owner with the right of selling and distributing their work. A remix song is legal only when the owner of the remix song informs via notice declaring their intentions behind the remix song and pays a royalty to the original proprietor. This might seem uncomplicated but the act has few loopholes that demand rectification as the requirement for copyright protection is augmenting in the music industry. With the changing trend in the music industry, the laws and regulations must also be amended to meet the necessity of the industry. A perspicuous definition of a remix song must is proclaimed along with the specific cost of royalty which is to be paid to the original artist so that the liberty of the owner is not exploited.
Whether you create a personal mash-up for your playlist or get equipped to spin your first set at the club, your remix could turn out being worth a king's ransom if a copyright proprietor sues you for infringement. Creating a remix is a much more complicated legal affair than merely using a segment in one of your songs. Now, why does this happen? Well, when you create a remix, you are producing something that is popularly known as a “derivative work.” For the purpose of recording a derivative work, you need to procure consent from the owner– specifically, the artist or label who possesses the master recording and the person/company who owns the publishing rights of the song. You need to follow certain steps in order to make a legitimate remix from copyrighted music:
1.) Purchasing a copy of the song(s). Pirated music is still illegal regardless of its effortless availability.
2.) Procuring consent of the copyright holder. Each segment of recorded music has at least two copyrights: firstly, for the song and secondly, for the master recording. You must obtain permission from both copyright possessors.
3.) Maintaining a record of permission. It is a must to have a written record that the copyright holder has permitted you to make a remix of his/her song.
The article first published on Lexology.com and the same can be accessed here.