INTRODUCTION

Refashioning and alteration of old or hit songs to make their remixes or remakes has become a trend in today’s technological and digital era. Whether it is Falguni Pathak’s ‘Maine Payal h Chhankai’ (Original) or Sonu Nigam’s ‘Achha Sila Diya’ (Original), Bollywood has made remakes of both the fantastic melodies in the form of ‘O Sajna’ by Neha Kakkar (Remake) and ‘Achha Sila Diya by B. Paraak (Remake) consecutively. However, these are not an example of music sampling instead they are the ‘remix’ of the songs. There exists a dilemma as to whether ‘remixes’ are same as ‘music sampling’ or not. “The Act of using any element of an already existing song to make a new one is simply termed as ‘Music Sampling’ while a ‘Remix’ involves taking an existing sound recording and adding, changing, or removing sounds to make a new version of the work”.[1] Further Sampling involves, “the procedure of digitally altering a small segment of a sound recording to include it in a new recording”[2]. Some notable examples are: “Truth Hurts Ft. Rakim – Addictive” which samples the controversial song “Thoda Resham Lagta Hai” by Lata Mangeshkar and “Mark B feat Tommy Evans – Move Now” which samples the eternal melody “Jab Chhaye Mera Jadoo” by Asha Bhosle.

On one hand, this practice establishes a fusion of conventional and contemporary music opening avenues to a diaspora of jobs but in the same league, it might infringe the original owner’s rights.  Sometimes it becomes a subtle art to demarcate the line between ‘creativity’ and ‘criminality’ and we are left to ponder upon, whether such remakes fall under copyright infringement or not. Is there any law regulating music refashioning, particularly music sampling in India?

LEGISLATION GOVERNING MUSIC SAMPLING

Although there is no specifically devoted legislation for regulating ‘Music Sampling’, Section 2(p) of the Copyright Act, 1957 defines ‘Music work’ as “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”. Also, the copyright holder of any literary or musical work is granted certain exclusive rights under Section 14 of the Act, including the ability to “reproduce such work, to make any public presentation of such work, to do cinematography of the work, and the right of translation and adaptation of the work”. These all are popularly known as the performer’s rights. In addition to this, Section 31C of the Act specifies certain provisions for the cover versions of an already existing song which focuses on the prerequisite of obtaining a license from the owner of original music or song.

[Image Sources: Shutterstck]

One of the key features of any property to classify as intellectual property is the originality and novelty of such property. Thus, to constitute a novel intellect, the alleged refashioned music sample should not possess any ‘substantial portion’ of the original pre-existing work. If the remake causes any confusion regarding its relation with the original song, then such an act will amount to copyright infringement of the rights of the sound recording artist, original creator, lyricist, or music composer and will attract hefty penalties. “The use of only 20 seconds of a four-minute-long music piece was understood as a “substantial component,” however the wording changes from case to case” as held in the case of Hawkes & Son v. Paramount Film Service Ltd.[3].Infringement also includes the moral rights granted u/s 57 having perpetual existence unlike the legal right granted u/s 22 which are for 60 years after the death of the copyright holder.

INTERNATIONAL CONVENTIONS AND FOREIGN PERSPECTIVE ON MUSIC SAMPLING

One of the notable conventions in the field of Intellectual Property is the Berne Convention. It protects “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work as original works without prejudice to the copyright in the original work”[4]. Thus, strengthening the position of the author of a derivative work. Moreover, Article 13 of the convention focuses on “ensuring the use of any original work only after the requisite permission and prescribe seizure in case of infringement”.

There are a few prominent foreign nations that come to mind, including the United States, Poland, and the United Kingdom. “The owner of the work retains the right to perform, show, play, broadcast, and produce any kind of adaptation. This is stated in U.K. legislation. Any action taken in violation of this would be considered an infringement”[5].  The “substantial use” idea in the UK states that infringement must be connected to a “substantial” section of the original work; each case is evaluated on its own merits, taking the context into account.

In the United States, the same doctrine-based test is applied, and any form of noncompliance with the “substantial similarity” standard renders the work vulnerable to copyright infringement. The “doctrine of fair use” is the only defense that exempts the test.[6]

When it comes to Poland, the laws governing music sampling do not highlight the terms like ‘sample’ or ‘sampling’.[7] It does, however, define “derived works” as adaptations or changes to previously created works that preserve aspects of originality, ingenuity, and individuality. To distribute their inventions, authors of derivative works must obtain permission from the author of the original piece. The right of quotation is employed to guarantee that this is followed.

Hence, it seems that Polland has prioritized finding a balance between the original owner’s creative legacy and the owner of the derived work’s inventiveness to fully capture and acknowledge each person’s contribution.

THE INDIAN PERSPECTIVE ON MUSIC SAMPLING

In India, a practical assessment of the claimed work is necessary to decide whether or not an infringement case may be filed. The Indian legal system predominantly uses the “audience test” to ascertain if a work is infringing. The Hon’ble Supreme Court of India, in the case of R.G. Anand v. Deluxe Films[8], held that “The most trustworthy way to identify a copyright infringement is through an audience test, which is defined as “a reader, spectator, or viewer is clearly of the view and gets an unambiguous perception that the subsequent work comes to constitute a replica of the original after having read or viewed both the works.” When an idea is used in a later work but is handled and presented differently, creating a whole new work, there is no copyright issue.

First, as was decided in the instance of Twentieth Century Fox Film Corpn. v. Sohail Maklai Entertainment (P) Ltd.[9], “Quality of copying is taken into account rather than quantity of copying when determining whether a work or a significant portion of it has been copied.”

Further, in the case of India TV Independent News Service (P) Ltd.  v. Yashraj Films (P) Ltd.[10] two parameters of substantial similarity were laid down, “the fragmented literal similarity and the comprehensive similarity copying the fundamental essence”.

DEFENCE AGAINST COPYRIGHT INFRINGEMENT OF MUSICAL WORK

In case of any infringement of the copyright of any musical work, there exist two major defences. These are:

• The defence of ‘De minimis’ and
• The defence of the doctrine of fair use

The defence of ‘De minimis’ is based upon the legal maxim, ‘de minimis non-curat lex’ meaning “the principle that the law is not concerned with insignificant or minor matters”[11]. There are in total 5 major grounds laid down in the case of India TV Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd.[12] to decide the applicability of defence ‘de minimis’. These are:

• the extent and kind of the injury;
• the price of the decision-making process;
• the reason the law was broken;
• the impact on third parties legal rights; and
• The wrongdoer’s intention

Thus, to find a balance between ‘public interest’ and ‘rights of the copyright holder’ this maxim is used to scrutinize and differentiate among the cases involving minor or insignificant copyright infringement claims.

Generally speaking, anyone else who has the right permission from the copyright holder may utilize the copyrighted work for any remake or reproduction. Nonetheless, with the “doctrine of fair use,” certain uses of copyrighted works are permitted without the owner’s consent. The theory seeks to safeguard other authors’ freedom of expression. To avail the benefit of the defence of fair use u/s 57[13] of the Copyright Act, certain key elements are taken into account, “The application’s goal and nature, the copyrighted work’s characteristics, the amount and importance of the segment used in relation to the copyrighted work as a whole, and, impact of the usage on the copyrighted work’s value or potential market.” The specifics of the case determine whether the doctrine is generally applicable.

CONCLUSION  

The most important attribute of all is a person’s “intellect,” or “intellectual property.” But as a result of globalization, privatization, and liberalization, the technology boom has created opportunities for both good and bad things to happen. These days, nearly every other song is a reworked cover of an already-existing melody that is protected by copyright. A cursory review of copyright law reveals that while the Copyright Act does not specifically address music sampling, it does contain numerous sections that provide extensive protection for musical works. Furthermore, Indian courts have talked a lot about plaintiff damages in situations involving infringement. Nevertheless, obtaining permission is still the safest course of action. Finding the right balance between “freedom to the expression of new musical work creators” and “protection of the existing one” can therefore be facilitated by carefully reading, putting into practice, and keeping an eye on the provided provisions. It is necessary to draw a line that encompasses both of these rights.

Author : Ankita Bhardwaj, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD

REFERENCES

1. The Copyright Act 1957
2. Merriam-Webster Dictionary
3. The Copyright, Designs and Patents Act 1988
4. Blacks Law Dictionary
5. Berne Convention for the Protection of Literary and Artistic Works
6. World Intellectual Property Organisation (WIPO)
7. SCC Online

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[1] Sampling, Interpolations, Beat Stores and More: An Introduction For Musicians Using Preexisting Music, http://www.copyright.gov/music-modernization/educational-materials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf.

[2] Black’s Law Dictionary 1368 (8th Edn., 2004)

[3] [1934] 1 Ch 593.

[4] Berne Convention for the Protection of Literary and Artistic Works, Art. 2(3)

[5] The Copyright, Designs and Patents Act 1988

[6] ‘The Song Remains the Same: A Review of the Legalities of Music Sampling’ (WIPO – World Intellectual Property Organization)

[7] ‘Is Sampling Always Copyright Infringement?’ (WIPO – World Intellectual Property Organization)

[8] (1978) 4 SCC 118

[9] Notice of Motion No. 2847 of 2010 in Suit No. 2692 of 2010

[10] 2013 (53) PTC 586 (Del)

[11]‘Definition of DE MINIMIS NON-CURAT LEX’ (Merriam-Webster: America’s Most Trusted Dictionary)

[12] 2012 SCC OnLine Del 4298