[Commons-Law] article published in EPW titled Copyright and Copyculture in Indian music

[Rajlakshmi Nesargi]

Dear friends,

The following is my article which was published in the February 5th-11th, 2005 edition of EPW. 

COPYRIGHT AND COPYCULTURE IN INDIAN MUSIC 

 Technological development in the music industry has brought along with it a new generation of ��Copy Culture��. The copyculture used in making creative changes in existing Indian songs has been generally termed as version recording. 

 Three types of version recordings[1] have so far been defined: cover versions that are also called version recordings, medleys and remixes. The genre of music that seems to have made the most recent success with the Indian people is that of version recordings, a result of the technological development in music. It has been defined in Super Cassette Industries[2]  as ��the singing of a well-known song by a lesser-known singer��. Essentially, there are two ingredients present in version recordings; different singers and different orchestra. Along with version recording came the medleys, which are a musical selection wherein the music is one or two minutes long and is basically an arrangement of snippets of the original song according to the arranger��s choice. 

 After the success of such daring musical experiments came the era of remixes, basically an adaptation of old tunes to a new arrangement. The history of remixes, which began in 1990��s shows a development series beginning with echo-effect that can be heard on the cassettes being sold in the markets containing songs sung by Mukesh, Mohd. Rafi, Lata Mangeshkar, Asha Bhosle. Then came series of songs remixed with ��Jhankar beats�� which were added to the already existing songs. After this, came version recordings, where evergreen songs were reproduced with lesser-known singers singing with the same background music played by a different orchestra. 

 This trend changed rather substantively when the audio effect was extended to the video. The ��not so serious�� experimentation in music took a serious turn when competition intensified the Indian music world. 

 ADVENT OF COPY CULTURE 

The advent of silicon chips and integrated circuits in the 1960s introduced into the international music industry a new dimension of ��copy culture��, leading to the emergence of cassette technology and then to of CDs VCDs and DVDs. Cassettes were the first of their kind to be used for audio reproduction and distribution, and hence changed the monopolistic nature of production and distribution of phonograms. The cassette culture still exists because of its low cost and its accessibility to lower-income groups, enabling consumption of recorded music and reproduction [Manuel 2001]. 

 

Version recording is a result of the nature of the ��copyculture��, where copying from a single original does not cost much except for the cost of a computer, a CD writer and blank CDs or cassettes, thus making this business extremely competitive.

 

Competitiveness has increased to the extent that a single phone call from a big company to the small company about version recording needed in the album along with the video theme, is all that is needed to push the latter to make a call to the studio to get the song version recorded. Further, it only takes a single evening to get the entire album done and sent to the particular market where such version recordings are in demand. The high return to the small investments required has made the entire industry of version recording a highly lucrative business at the same time competitive.[3]

 

To support the competition, Section 52(1) (j) of the Indian Copyright Act, 1957 was amended in 1995 to enable interested entities to make adaptations on previous sound recordings, without having to wait for the consent of the right holders. This provision, read with rule 21 of the Copyright Rules, enables the version recorders to send a notice of intention 15 days in advance of the recording. However, this right was allowed to be exercised only after two years of the publication of the original recordings. Royalty was also fixed at 5 percent, regardless of the popularity or any other special history of the song in the society. 
 The inclusion of the section to facilitate version recording has led to a corresponding increase in the number of litigations, along with a raise in competition. Since this is entirely a different issue, this article will not go into it.
 

Due to these changes in the approach pertaining to making remixes, and the law that facilitated it, the IMI came up with a report for the Central . 

 Government

The privilege given under this provision is basically for the benefit of the version recorders. However, it is felt by the original rights holders that their interest are being jeopardy. The reasons adduced by them, inter-alia are:

 

��        Violation of the moral rights of the rights holder,

��         Extremely short period of monopoly allowed thereby curtailing the financial benefit,

��        Extremely low royalty rate and misrepresentation regarding the quantity of work to be produced in the market,

��        Absence of the optical disc law and misrepresentation of quantity of CDs manufactured,

��        Unequal sales tax,

��        Legal issues arising due to absence of fast track courts, compulsory arbitration, statutory damages, appeal against acquittal, etc.

 

The facilitation by Section 52(1) (j) to make version recordings without having to wait for the consent of the music author, in case the statutory provisions are complied with, is more along the lines of compulsory licensing. This kind of facilitation defeats the very purpose of creativity promoted by the philosophy behind the copyright law.  This facilitation further blurs the distinction between the original music author and the version recorders as owners or authors. 

 

It is further alleged by the Indian music industry that the provision provided under Section 57 pertaining to moral rights is violated. Moral rights are the rights that a musical author carries with him/her on the work created regardless of the status of the work, that is, regardless of whether the bundles of rights have been transferred (exclusive or non-exclusive). Moral right prevents distortion of the musical author��s work and protects his/her reputation. Compulsory licensing, it is alleged, allows distortion of songs without allowing the musical author to prevent it and hence ��playing�� with the reputation of the musical author, thus defeating the very purpose of moral right.

 

The copyright protection given to the musical author has been practically curtailed to two years from the year following the release of the song. It is strongly felt in the industry that two years is a very short period for any song to reach optimal sales level.

 

The royalty of 5 per cent is considered by the music author to be too meager compared with the financial benefit derived through adaptation of the sound recording. In addition, music authors have voiced a related concern of misrepresentation regarding the quantity of recordings produced by version recorders.  

 

Socio-economic legislations have in effect shifted partially the burden of proof on the accused by providing that the accused shall prove beyond reasonable doubt the absence of the mens rea, nexus between income and assets, but in India the plaintiffs are required to prove that there is infringement of their work and also they have incurred a loss because of the defendants�� activities. The onus of proof, if shifted from the plaintiffs/complainants to the defendants would require them to prove that there is no infringement in the work they are doing. 

 

Another issue is that Section 68 (b) of the Copyright Act, 1957 provides de-minimus punishment of one year that may be extended with or without fine, which is too small a penalty consideration the magnitude of financial, moral loss in the market. 

 

Further, Section 70 of the Copyright Act, provides that a judicial magistrate of first class or the metropolitan magistrate shall try the offence and has the discretion of granting fine not exceeding Rs.5,000/-. Inevitably the case is then appealed by the music copyright owner in the high court.[4] A study of the cases appealed shows that almost all cases are appealed to the high court and the time taken for the matter to reach High court delays the provision of justice. 

 

The version recorders�� responses can be summarized as follows:

 

��        Version recordings and remixes promote new talents;

��        Version recorders wait for two years after the original recordings;

��        They are required to comply with formalities such as maintenance books of accounts etc.

 

The version recorders argue that version recordings promote new talents since lesser known singers are given the opportunity to sing. It is also argued that a version recording introduces new singers in the market thus promoting new talents in a cheaper and easier way.

 

Version recordings enjoy a short span of success amidst a small segment of customers, and hence it is argued that even two years from the year next to the year of release of the songs is a long time. 

 

The version recorders also say that too have to maintain books of account on the number of copies made of the cassettes/CDs/VCDs /DVDs, the number of copies sold and the rate at which they are sold. This kind of information does not provide any scope, as is alleged by the IMI, to make any unauthorized copies amounting to piracy. 

 EPW


"You must be the change you wish to see in the world. First they ignore you, then they laugh at you, then they fight you, then you win"-Mahatma Gandhi
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