EDITION I - jicil.info · works called ‘remix’ and ‘mashup’. This, on one hand, encourages...

Quarterly Law Journal | Published by Agradoot Web Technologies LLP

EDITION I

April 2018

Ankita Aseri .

Editor-in-Chief .

Sameer Avasarala

Publishing Editor

PUBLISHED BY

CITATION

1 JICIL 2018 (01)

Journal of Innovation, Competition and Information Law 1 JICIL 2018 (01)

Published by Agradoot Web Technologies LLP 23

IMPACT OF REMIX MUSIC IN COPYRIGHT LAW

Aswathy Thomas116

Introduction and History

“All ideas are secondhand, consciously and unconsciously drawn from a million outside sources. We

are constantly littering our literature with disconnected sentences borrowed from books at some

unremembered time and now imagined to be our own.”117

— Mark Twain

The rapid changes in science and technology, in today’s age of digitalization, have transformed

the conventional modes of communication and expression.118 This would necessarily mean that

the traditional laws are not sufficient to regulate the modern-day disputes. One such confusion

in law exists in the realm of remix and mash-up music. It is indeed true that the drafters of

copyright law would not have foreseen the confusions that might possibly arise in the digital era.

The practice of borrowing ideas and creating a modified version of the idea in question is relevant

as of now. One of the areas being increasingly influenced by the concept of borrowing ideas is

that of music. In fact, an entire genre in music is dedicated to borrowing and modifying others’

works called ‘remix’ and ‘mashup’. This, on one hand, encourages new forms of artistic expressions

while on the other, leads to copyright infringement of the author.

Simply put, remix is a mix, i.e., mixture and is not original. It is done by making a new sound

recording using an old song containing the original lyrical work with or without some changes

incorporated therein.119Indian Courts have interpreted remixes as a sound recording made of an

already published song by using another voice or voices and with different musicians and

arrangers.120Musique Concrete in the 1940s, by Pierre Schaeffer, a French engineer who recast

pre-recorded sounds by manipulating the speed and direction of turntables and magnetic tape,

was one of the first recorded remixes in the world.121The concrete entry of remixes into the music

culture dates back to the early 1970s, throughout the 1980s and 1990s. The practice of assembling

new songs from elements of previous work has started in the beginning of recorded music and

116 Student, TNNLS Tiruchirapalli 117 2 MARK TWAIN, MARK TWAIN’S LETTERS (A.B. Paine ed., 1867-75). 118 Emily Harper, Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm, 39 HOFSTRA L.R. 405, 405 (2010). 119 Veerendra Tulzapurkar, Remix and Copyright Law, 10 J.I.P.R. 106, 106 (2005). 120Gramophone Co. of India v. Super Cassettes Industries Ltd., (1996) P.T.C. (16). 121 Shantanu Rawat, Remix culture and Copyright challenges, RACOLB LEGAL (Sept.3, 2017, 3:56 PM), http://racolblegal.com/remix-culture-and-copyright-challenges/.



reaches beyond modern genres of pop and rap and into genres such as jazz and folk.122 Finally, in

the late 1990s and early 2000s, remixes made an entry into the Indian film industry.123In 2006,

musicians discovered that creating a new music out of a pre-existing work tended to increase the

new work’s popularity.124 This would be because of two reasons, firstly, remix music would re-

popularize old music, secondly, remix music would give a break to young singers. As of now,

remixes, mashups, and cover versions have taken the internet by storm winning the hearts of

millions.

This paper deals with the scope of such derivative work and whether it falls under the exception

of ‘fair use’ doctrine. The researcher intends to deal with the history of remix music in India and

also analyze the problem from both the sides, i.e. from the author’s side and the secondary artists’

side. From the author’s side, whether it leads to infringement of his copyright and from that of the

secondary artists (creators of remix and mashup music), whether they should be given adequate

protection under the copyright law thus encouraging the element of novelty, especially due to the

increasing demand for remix music. The researcher also intends to analyze various Indian as well

as foreign case laws to have a detailed view of the legal issues associated with mashups. The

researcher will also see if there are lacunae in legislation and the need to reform copyright law to

account for recent technological advances.

Remixes and Existing Legal Provisions

Remix culture or the practice of borrowing parts of music from an existing version of a song

remains controversial even now. One major reason attributed to this is the lack of legal provisions

or standards in this domain. Moreover, disputes regarding remix music have largely remained out

of the courts, thus giving no space for judicial standards to be established.125

What a remix musician tends to do is add some masala to the existing song, i.e., add a few words

popular in the present-day context with some additional beats, which are more attractive. The

reason why the entrepreneur does this lies in the economics of remix business. At times, the

entrepreneur comes up with a video film containing remix sound to further increase popularity.126

122 Kerri Eble, This is a remix: Remixing music copyright to better protect mashup artists, 2 UNIVERSITY OF ILLINOIS L.R 661, 664 (2013). 123 Rawat, supra note 5. 124 Harper, supra note 2, at 407. 125 Carl. A. Falstrom, Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music, 45 HASTINGS L.J. 359, 360-361 (1994). 126 Tulzapurkar, supra note 3, at 107.



The million-dollar question is how far the existing legal provisions in India protect the original

owners and the amateur artists.

Prior to 2012 Amendment in Copyright Law

First of all, it is pertinent to note that according to Section 13 of the Copyright (Amendment) Act,

2012127, Copyright subsists in the category of original musical works.128Under Section 13(3)(b)129,

there is a general prohibition on the making of a sound recording, if the copyright in such work

has been infringed.

The period of 2003- 2010 has witnessed a sheer increase in the number of remixes in Indian music

industries, where the singers have declared the remix version by merely adding masala and in

some cases adding near-nude dancers. Prior to the amendment to the Copyright Act in 2012, it

was as if the judiciary had nodded indirectly to the remixes as the only remedy available to the

original musicians was in the form of Section 52(1)(j).130131 Section 52(1)(j) was an exception to the

general prohibition as given under section 13(3)(b) of the Act. Section 52(1)(j) provided for a

statutory license to any person desiring to make a version recording in respect of any literary,

dramatic or musical work. Section 52(1) (j) of the Copyright Act provides that the making of a sound

127§13, The Copyright Act, 1957. “Works in which copyright subsists.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,- (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) 42[sound recordings;] (2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless,- (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than a 43 [work of architecture] the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of 44 [work of architecture] the work is located in India. Explanation.- in the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work. (3) Copyright shall not subsist- (a) in any cinematograph film a substantial part of the film is an infringement of the copyright in any other work; (b) in any 45 [sound recording] made in respect of a literary, dramatic or musical work, if in making the 46 [sound recording], copyright in such work has been infringed. (4) The copyright in a cinematograph film or a 47 [sound recording] shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the 48 [sound recording] is made. (5) In the case of a 49 [work of architecture] copyright shall subsist only in the artistic character and design and shall not extent to processes or methods of construction. 128 The Copyright (Amendment) Act, 1992, No. 13, Acts of Parliament, 1992 (India). 129Ibid. 130Section 52(1)(j) was deleted and replaced by Section 31C by the 2012 amendment. 131 C.S. Naveen Shree Pandey, Remix and the Copyright (Amendment) Act, 2012, IPR SMITH (Sept 7th, 2017, 2:04 AM), https://iprupdates.blogspot.in/2013/03/remix-and-copyright-amendment-act-2012.html.



recording of any literary or musical work shall not amount to infringement if there is already a

sound recording made of the original literary or musical work and the entrepreneur has given a

notice of his intention to make a sound recording and has paid to the owner of the rights the

royalty at the rate fixed by the Copyright Board. The entrepreneur has to take the precautions

provided in that Section, such as, not making alterations without the previous consent of the

owner of rights, or, which are not reasonably necessary for the adaptation of the work for the

purpose of making his remix, that the sound recordings are not sold with any labels or packaging

which are likely to mislead or confuse the public as to their identity, that, the remix is not made

until the expiration of two calendar years after the end of the year in which the original sound

recording of the work was made, and, that, the entrepreneur allows the owner of the original work

to inspect all records and books of account relating to the remix.132

Now the question arose as to whether, in light of the provisions under section 52(1)(j), whether

there was a separate need to acquire a license from the original owner of the music work. Two

contrary decisions have emerged out of litigation pertaining to this question. In the first case of

Gramophone Co v. Super Cassettes133, the plaintiffs had made an audio cassette titled ‘Ganapati

aarti ashthavinayakgeete’. The defendants sent a letter to the plaintiffs intending to make a

cassette containing a new sound recording consisting of the original literary work and musical

work and sent a license fee of Rs.2230/- for 5000 cassettes. The plaintiffs returned the cheque

clearly showing their intention that they did not want Super Cassettes to come out with its sound

recording, but the defendants went ahead and brought out their own sound recording. The

plaintiffs filed a suit contending that the act of the defendants amounted to an infringement of

their copyright. The defendants pleaded a defense under Section 52(1) (j) of the Copyright Act. The

Delhi High Court, after considering all the provisions, held that the plaintiffs did not permit the

defendants to make a version recording of their cassette and the defendants did not automatically

become entitled under Section 52(1) (j) to make a new sound recording. It was held that the

plaintiffs' consent was required to be obtained by the defendants for making a sound recording

and compliance of Section 52(1) (j) was not enough to avoid the liability for infringement. The

learned Judge held that the defendants had infringed the plaintiffs' copyright. With respect, it may

be noted that no reasons are to be found for arriving at the conclusion that the plaintiffs' consent

was necessary.134

Contrary to the decision in the above-mentioned case, the Karnataka High Court in the case of

Gramophone Co v. Mars Recording135 wherein a suit was filed for infringement, the Trial Court

132Tulzapurkar, supra note 2, at 108. 133Gramophone Co v. Super Cassettes, (1999) PTC 2. 134Tulzapurkar, supra note 2, at 109. 135Gramophone Co v. Mars Recording, In M F A No. 5491/98, dated 31st August 1999 (unreported).



granted an injunction, but the Appeal against the order of the trial court was dismissed by the

Karnataka High Court. The Karnataka High Court held that once the provisions of Section 52(1) (j)

were complied with by the defendants, they became entitled to make a new sound recording and

their act did not amount to infringement. No separate consent or license was required to be

obtained from the plaintiffs. This decision of the Karnataka High Court was challenged in the

Supreme Court. The Supreme Court finally held that where the Respondent has not violated any

of the requirements of Section 52(1)(j) of the Act and Rule 21 of the Rules, there is no copyright

infringement.136

It appears that no separate license or permission is required to be obtained and compliance with

the provisions of Section 52(1) (j) will be a complete protection against any charge of infringement

of copyright by making a new sound recording. Section 52(1) (j) does not provide for seeking any

consent from the owner of the copyright. If a license were to be obtained, there was no need of

incorporating the said provision, in the first place. If the consent was obtained, there was no

question of infringement. Thus, the application of Section 52(1)(j) comes into picture only where

the consent of the owner has not been taken. In such a case, if the conditions given in the Section

were followed, there would be no copyright infringement.137

However, in 2003, the Court in Super Cassette Industries Limited v. Bathla Cassette Industries Pvt.

Limited138held that Section 52(1)(j) was not independent of prohibition imposed under Section

13(3)(b)139 and hence, anyone whose version recording violates mandate of Section 13(3)(b) cannot

secure a mandate in his or her favour. Therefore, where no license has been granted by the original

copyright owner and the only claim forwarded is under Section 52(1)(j), it cannot ipso facto confer

any right entitling such a person for independent protection for its musical works.140But,

practically, the requirements under Section 52(1)(j) were mere formalities.141

Thus, prior to the 2012 amendment, it could, very well, be said that the rights of the original owner

were stopped the moment consent was given to the creation of adaptation of the original work.

The only remedy available to the owners was compliance under Section 52(1)(j), which, in effect,

proved to be mere formalities. It would also mean that the composers of original songs had no

choice but accept what they think is mutilation of their work.142

136 Nawneet Vibhaw & Abishek Venkataraman, Recording that different version – An Indian Raga, 12 J.I.P.R. 480, 485 (2007). 137Ibid, at 109. 138Super Cassette Industries Limited v. Bathla Cassette Industries Pvt. Limited, 2003 (27) PTC 280. 139Supra note 12. 140 Vibhav & Venkataraman, supra note 19. 141Rawat, supra note 5. 142Tulzapurkar, supra note 2.



Post-Amendment

The legal position on remixes has undergone some sort of transition to being creative-friendly

from being owner-friendly. It is, however, open to interpretation if the transition is good or bad.

Prior to the amendment, the only remedy available to the owners was compliance under Section

52(1)(j), which had mere formalities required under the Copyright Act, 1957. The pre-amendment

era witnessed numerous problems. There were huge losses were suffered by the music industry

coupled with illusory amounts of royalty that are paid. The royalty currently paid ranges from 3-

5% of the retail price of a cassette which is abysmal compared to the 25-30% that is demanded in

the US, where version recording is legal. At such rates, it is hardly surprising that we find dubious

remixes flooding the market.143 But this situation has changed to an extent after section 31C144 was

143Vibhav & Venkataraman, supra note 19. 144§31C, The Copyright Amendment Act, 2012. “(1) Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the license or consent of the owner of the right in the work, may do so subject to the provisions of this action: Provided that such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use. (2) The person making the sound recordings shall give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay 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 Copyright Board in this behalf. Provided that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section. (3) 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: Provided that such sound recordings shall not be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work were made. (4) One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made: Provided that the Copyright Board may, by general order, fix a lower minimum in respect of walks in a particular language or dialect having regard to the potential circulation of such walks. (5) The person making such sound recordings shall maintain such registers and books of account in respect thereof; including full details of existing stock as may be prescribed and shall allow the owner of rights or his duly authorized agent or representative to inspect all records and books of account relating to such sound recording: Provided that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this section, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty. Explanation.- For the purposes of this section "cover version" means a sound recording made in accordance with this section.”



introduced by the Act of 2012. It has been inserted with a view to protect the rights of musicians

by protecting them against copyright infringement through remixes.145 The Section mainly deals

with the following important aspects that help a remix to escape from being copyright infringing:

1. Consent or license from the owner of the right and same medium of cover version as that of the

original version.

2. Prior written notice to the owner for version recording is required and the royalty shall be paid in

advance at the rate as specified by the Copyright Board and for a minimum of 50000 copies.

3. A cover version cannot be reproduced until the expiration of 5 years from the date it was actually

made.

4. Cover version shall have to mention that it is a cover version and shall not contain the name or depict

in anyway any performer of an earlier sound recording of the same work.

5. A person cannot make any alteration in the literary or musical work which has not been made

previously by or with the consent of the actual owner.

6. Alteration in original recordings are only allowed for technical purpose now, however, previously it

was allowed for adaption of the work.

The amendment has attracted criticism from different parts. According to Sunil Abraham, the 2012

amendment has made strict limits on making cover versions or remixes. He says this would mean

that all those who sang commercially viable cover versions of “Why this Kolaveri Di”146 be

considered lawbreakers. There are also strict limits on what are acceptable alterations to the

original. The “alterations” have to be “reasonable” and “technically necessary”. He says this is not

practically possible in today’s world where teenagers build professional sound recording studios

in their bedrooms.147

Balancing of Interests: Primary and Secondary Artists

145Rawat, supra note 5. 146 “Why this Kolaveri di” is a song from the soundtrack of the 2012 Tamil psychological thriller film, 3. The song is written and sung by Dhanush, and composed by Anirudh Ravichander. The song had been a viral back then and many cover versions of the same had been released. 147Sunil Abraham, Copyright amendment: bad, but could have been much worse, BUSINESS STANDARD (Sept. 10, 2017, 11:58 PM), http://www.business-standard.com/article/opinion/sunil-abraham-copyright-amendment-bad-but-could-have-been-much-worse-112061000027_1.html.



“Thou shall not steal” – Judge Kevin Duffy’s first four words in the judgment of the all-time

landmark case Grand Upright v. Warner148 contains the opinion’s first and only reference to any

authority or precedent.149 To the court, sampling equaled theft.150

As there are two sides to every coin, it’s important the interests of both the original owner of the

musical work and the remix musicians need to be heard. As director Kirby Ferguson said in his

speech from TED Global 2012, today’s world explores challenges of originality and freshness where

creativity takes root in what has come before. According to him, nothing is original; creator of

everything is a remix. Art cannot be created or destroyed – only remixed. From Bob Dylan to Steve

Jobs, he says, our most celebrated creators borrow, steal and transform. He says that without

previous inventions we would not have the iPhone, the Model T Ford, Star Wars, and the like.

Ferguson argues that these laws ultimately contradict their own intent to “promote the progress

of useful arts,” stifling the root of creativity. Ferguson contends that the problem is that we think

of creative works as individual property, rather than content that sits in the public domain.151As

held by the Delhi High Court in the case of The Chancellor, Masters & Scholars of the University of

Oxford & Ors. v. Narendra Publishing House and Ors152, fair dealing makes reproduction of work

legitimate. It helps information to be pooled in the public domain from which an individual can

“draw and replenish”153.These precedents support striking of a balance between the interests of

the exclusive copyright holder and that of the public. This, along with the modicum of creativity”

concept would suggest that as long as the new work has a certain amount of creativity involved,

needs to be protected.154 Going by this, if a remix or cover version involves some amount of

creativity, they need not be considered aninfringement, but rather be protected. However, as was

observed in the case of Ram Sampath v. Rajesh Roshan and others155, a musical work is considered

to be a copy of the other “if an illiterate person in music on listeningto the latter musical work

would say to himself, Hay! I have heard this tune before”.

In this era where teenagers turn their bedrooms into professional sound recording studios, it is

impractical to curb young creativity citing reasons such as copyright infringement of musicians.

Time is an essential factor that should influence alteration in laws.

148 Grand Upright v. Warner, 780 F. Supp. 182 (S.D.N.Y. 1991). 149 Falstrom, supra note. 9, at 364. 150Ibid. 151 Liz Jacobs, 14 brilliant quotes on remixing, TED BLOG, (Sept. 9, 2017, 12:25 AM), http://blog.ted.com/14-brilliant-quotes-on-remixing/. 152The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Narendra Publishing House and Ors, ILR (2009) 2 Del 221. 153Ayush Sharma, Indian Perspective of fair dealing under Copyright law: Lex Lata or Lex ferenda?, 14 J.I.P.R 523, 523 (2009), http://nopr.niscair.res.in/bitstream/123456789/6706/1/JIPR%2014(6)%20523-531.pdf. 154Ibid, at 525. 155Ram Sampath v. Rajesh Roshan and Others, 2009(2)MhLJ167.



Primary artists are artists who create music from the scratch, i.e., without using any kind of

previous work as a reference. The Berne Convention supports the original artist instead of the

amateur creator12, most of the original authors file for copyright infringement when even a little

part of their work has been used, citing prejudice to their reputation.156It is the case of the primary

artists that technological advancements threaten their interests.157The content they create with

so much effort spreads all over the Internet within a short span and is easily being transformed

into different versions. At times, the transformed version receives more attention than the original

work itself and this largely hampers the interests of the primary artists. Thus, primary artists seek

greater copyright protection of their work under copyright laws. Primary artists also argue there

is no economic incentive to create art if it can be accessed illegally and used by others to make a

profit, and copyright needs to provide more protection to incentivize artists to progress

creatively.158

Secondary artists, on the other hand, are those artists who use parts of work of primary artists

and transform the same into a version of their own. They argue that the purpose of copyright is

to promote creativity and progression of arts and thus laws preventing the creation of remixes

should be removed. It is indeed true that certain remixes hit the top charts even better than the

original ones, thus popularizing the original music work as well. Also, the fact that some primary

artists agree to their work being used as a secondary art shows the creative value of this art

form.159

The Fair Use Debate

In the United States, fair use has been considered a defense to using an author’s work without

his/her permission. Whether or not the content has been adapted for fair use has been decided

on a case-to-case basis. In India, the concept of ‘fair dealing’ has been statutorily enacted under

Section 52 of the Indian Copyright Act, 1957. The Bombay High Court, in the case of McMillan v.

Khan Bahadur Shamsul Ulama Zaka160held that the English Copyright Act, 1842 was applicable in

India.161The five importance grounds on which fair use has been measured are as follows:162

I. Transformative Quality – This is used to determine if the work is the same as that of the original

or the work has been substantially innovated to transform it into a new art.

156 Rawat, supra note 5. 157 EBLE, supra note 6, at 674. 158 Ibid. 159 Ibid. 160 McMillan v. Khan Bahadur Shamsul Ulama Zaka, (1895) ILR Bom 557. 161Sharma, supra note 37, at 525. 162Rawat, supra note 5.



II. Commercial relevance – This is used to check if the amateur creator gets any sort of revenue

returns for the work created or whether it is for non-profit, educational or for personal use only.

III. Nature of the work – In 90% cases, a factual work is being made use of in a fair manner and not a

creative work.

IV. Amount or substantive part of material used – The amount of the work copied is a prime factor to

decide if a particular work comes under ‘fair dealing’. If a work has been copied fully or

substantially, it will not come within the purview of ‘fair use’.

V. Effect on the market of the original work – If the new work created by amateur creator replaces

the value of the original work, it cannot be termed as ‘fair use’.

Fair use has been described in the Indian context under Section 52 of the Copyright Act, 1957. The

Indian context of fair use has remained rigid and conventional and has not been delimited properly

as the U.S. laws.163The conditions under Section 52 do not talk about remixes being under fair use.

In the case of India TV Independent News Services Pvt. Ltd v. Yashraj Films Pvt. Ltd. & Super

Cassettes Ltd.164, wherein a TV show broadcasted a documentary showing the life of singers and

they performed their own songs. While the singers sing the songs, background clips of the movie

scenes are shown. The Plaintiffs alleged that this is an infringement of their copyright. However,

the Defendants claimed that the act comes within ‘fair use’ under section 52. The court held that

since not allowing a singer to perform her own song on another platform is unreasonable, it comes

under the purview of ‘fair use’. However, displaying any cinematographic films as in this case

without permission is not permissible.

However, the new Section 31C inserted by the 2012 amendment to the Copyright Act provides

certain requirements to be fulfilled which would lead to artists’ copying without copyright

infringement.

Creative Commons

This concept is based on the idea that information should be made free to the public. A creative

commons license gives the creator the right to decide how much of the information will be made

public.165The whole concept of copyright infringement due to remixes has arisen since we do not

163 Vaibhavi Pandey, "Fair Dealing" In Copyrights : Is The Indian Law Competent Enough To Meet The Current Challenges?, MONDAQ ( Sept 11, 2017, 2:47 AM), http://www.mondaq.com/india/x/299252/Copyright/Fair+Dealing+In+Copyrights+Is+The+Indian+Law+Competent+Enough+To+Meet+The+Current+Challenges. 164India TV Independent News Services Pvt. Ltd v. Yashraj Films Pvt Ltd & Super Cassettes Ltd., FAO (OS) 583/2011.

165 Rawat, supra note 5.



consider creative work as that of the public. Ideally, these should prevail in the public domain and

anyone should be able to use it so as to increase innovation and creativity. It should be noted that

the use does not lead to the mutilation of the existing work, in which case the secondary artists

should be punished. Some artists believe that any creation should have access to everyone’s art

so they can add on and further create on top. They argue this technique is a better approach

towards developing the world and to come up with new ideas and inventions.166

As is largely understood, there is a clash of originality and innovation in the present context and

thus it is high time the interests of both primary and secondary artists were balanced. However,

it is difficult to balance the interests of two categories of people whose interests contradict with

each other. For instance, a remix version of an old melodious song called ‘Kanta laga’, composed

by one of India’s highly respected music director, Naushad, was made. In the film, the song is sung

by a woman who is waiting for her lover to return. The remix of this old song has become highly

popular. "Look, what have they done to my song", lamented Naushad, when he heard and saw the

‘Kanta Laga...’- remix version. The video remix shows, according to Naushad, ‘near nude woman

dancing’. He lamented that it was such a melodious song and they have completely ruined it. He

is further reported to have said, "I would rather not have the royalty money than have my

compositions treated with such disrespect2". In reply, a producer of a remix music cassette is

reported to have said, "Look, people are unnecessarily creating a ruckus!”167

Need for Legal Reform

The confusion and controversy regarding copyright issues in remixes remain unresolved. The

recent Ranga-Rangabati copyright row shows that not much has changed since the 2012

amendment to the Copyright Act, 1957. The song infuses the original Rangabati with English-Tamil

rap and the Orissa state anthem, Bande Utkal Janani. The original song’s lyricist Mitrabhanu

Gauntia and music director Prabhudutta Pradhan – the disputed copyright holders of the song –

have slapped Hindustan Coca-Cola Beverage Private Limited, Hindustan Coca-Cola Holdings

Private Limited, Viacom 18 Media Private Limited, singers Sona Mohapatra, Rituraj Mohanty and

composer Ram Sampath with a legal notice alleging copyright infringement. The two have

demanded compensation worth rupees one crore, with the legal notice stating that failure to pay

the same before July 18 would result in legal action.168

166The Remix Copyright debate, WLUDH (Sept 11, 2017, 2:57 AM), http://wludh.ca/dh100/2016/T1/G3/M3/types-of-copyright-infringement/the-remix-copyright-debate/. 167Tulzapurkar, supra note 2. 168 Kiran George, The Ranga- Ramgabati copyright row, SPICY IP (Sept 11, 2017, 3:03 AM), https://spicyip.com/2015/07/the-ranga-rangabati-copyright-row.html.



Even though the 2012 amendment has brought in changes with respect to cover versions, the

recent rows denote that they are not sufficient. It is high time for a legal reform in the realm of

remixes. There should be a specific section covering remix music like the one for cover versions.

The provisions should not be one-sided. It should be such that the interests of both primary and

secondary artists are balanced. No reform should come at the cost of anybody. It should be

ensured that version recordings do not lead to the mutilation of original owner’s work as author’s

moral rights find significant mention in the copyright domain.

Despite the 2012 amendments, which mainly deal with cover versions, the status of remixes in the

Act remains ambiguous. The Statute only provides for the grant of injunction and damages in cases

where any distortion, modification or other act in relation to the work would be prejudicial to the

author. The main issue at hand is that of piracy, which leads to losses suffered by the industry and

defeats the very objective of copyrights, especially the time-bound protection granted for 60

years. Strict and coherent interpretation of the provisions on the remixes of sound recordings

would serve public interest while promoting the growth of the music industry by boosting

innovation and investment.169

Conclusion

The huge popularity that DJ clubs and remix music have attained among the Indian youth over the

years portrays the inevitable role remix music plays in this era. This, on the one hand, encourages

budding artists while on the other, infringes the copyright of the original owners. It is true that

remix music has taken the entire domain of social media. In such a situation, it is highly impractical

to make license mandatory for every other creation of cover music. The recent chartbuster in the

realm of version recordings has been Ed Sheeran’s “Shape of you” and Justin Bieber’s “Despacito”.

It will be absurd to consider all those budding artists as lawbreakers.

There are two perspectives from which remix music can be looked at. From the perspective of the

author, the author might consider remix as a violation of his copyright. From the perspective of

the remix musicians, it is a medium to showcase their budding talent. It is impossible for them to

get a license forevery upload they make on the internet for pass time, some of which may

unexpectedlygoviral170. Popular Malayalam musical bands like ‘Thaikkudam bridge’ and ‘Masala

coffee’ attribute their success to cover song creations. It is indeed a crime to prevent the growth

of such young talents.

169 Pandey, supra note 38. 170 The term viral is used for a piece of content on the internet that gets more than a specific number of views, clicks and so on. An example for a viral musical video would be “Why this Kolaveri di” sung by actor Dhanush.



The way the researcher sees music is a medium to enjoy. This is where the Creative Commons

argument gains relevance. Creative work should be considered as that of the public and the public

should be able to use it without fear of copyright infringement but without mutilating the existing

work.

Even though the Copyright Act has been amended, nothing much has been done to resolve the

ambiguous provisions relating to remix. Specific provisions relating to remix should be

incorporated as done for cover versions in the form of Section 31C. There should be a stringent

check on the amount of royalty to be paid to the original artists and appropriate follow-up

measures should be complied with to ensure zero discrepancies.

The rights battle among the primary and secondary artists will not cease unless the government

brings in unambiguous measures to clear the remix domain. As popularly said, “thou shall not

steal”, but “thou shall get inspired”.

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