The essence of copyright law is to protect the collectiveefforts put in by creators who produce work that has some intrinsicvalue. Music, created through a collaboration between musicians,producers and composers, is one such work on which copyrightsubsists. When this music is altered, distorted and transposed byadding new compositions to it, a remix is formed. Thus, in a broadsense, a remix can be defined as a piece of music whose originalstate is altered by removing or adding parts of the originalcomposition or by changing its components which may include itstempo, bass and beats. A remix can also be considered as amusician's original work which is derived from theoriginal track that is being used to create the remix. Severalmusicians, especially in the film industry, tend to create remixversions of hit songs from the 70s, 80s or the 90s by re-recordingthe songs and by altering its musical components. Since theoriginal songs are works on which copyright subsists, copyright lawplays a significant role in the realm of remix music.
From an international perspective, it has been noted by the WIPO(World Intellectual Property Organization), that most countries donot effectively address the laws that may be applicable withrespect to remix music. Article 13 of TRIPS (Agreement onTrade-Related Aspects of Intellectual Property) mentions that"certain special cases which do not conflict with a normalexploitation of the work and do not unreasonably prejudice thelegitimate interests of the right holder". This impliesthat as long as a creator does not receive any monetary gains fromthe remixed music, the exclusive right of the author (of theoriginal track) would be limited. The remix here will be consideredas 'amateur creativity'. Another necessary condition thatshould be satisfied under Article 13 is that the remixed musicshould not threaten the commercial viability of the original work.Article 10 of the Berne Convention also explicitly states that itis permissible to create work that is a derivation of the originalwork but it should be compatible with 'fair practice'.While several countries are unclear on their position with respectto remixed music and copyrights, some countries have laws that arespecifically in place for non-commercial user-generated contentthat could be applicable to remixed music. Canada's CopyrightModernization Act is one such example. Article 29 of the actexplains certain conditions under which a work would not amount toinfringement:
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In India, section 2(p) of the copyright act, 1957 defines a'musical work' as a work that comprises of music andincludes graphical notations of the work. However, the definitionof 'musical work' under the copyright act specifies thatthe copyright does not subsist upon any words or actions that areintended to be sung, performed or spoken along with the music.Moreover, section 13 of the copyright act specifies that copyrightsubsists on an original musical work as well as a sound recording.In a digital age like today, the internet and several otherplatforms are largely unregulated. This could lead to acreator's work being misused under several circumstances.Although, remixed music cannot be considered as a misuse of anoriginal track. Rather, it is a derivative work of theoriginal musical composition. However, in order to ensure that aperson does not wrongfully exploit another creator's musicalcomposition through remixing, certain conditions have to besatisfied before remixing a track. Once these conditions aresatisfied, the remixed song will not be considered as an act ofinfringement. Such conditions are specified under section 52(1)(j)of the copyrights act.
Firstly, it is mandatory to obtain the consent of the owner (ofthe right in the work) before remixing a song. In other words, aperson cannot remix a song without consent from the originaltrack's composer. In Gramophone co v. Super Cassettes,an audio cassette titled 'Ganapati aarti ashthavinayakgeete' was to be recorded. In order to make a soundrecording, the defendants approached the plaintiffs with an offerto pay a license fee. However, the plaintiffs did not give theirconsent to the defendants for the usage of the sound recording.Subsequently, the defendants, without the consent of theplaintiffs, added the sound recording to the audio cassette. It washeld that the plaintiff's consent was imperative for using thesound recording under section 52 (1) (j) of the copyrights act.Secondly, it is crucial that the person creating the soundrecording must mandatorily provide a notice of his/her intention tomake the sound recordings to the owner of the original track.Additionally, the person making the sound recordings should alsoprovide the copies of all the covers or labels which consists ofthe original track and has to pay the owner a 'workroyalty' at a rate which would be fixed by the copyright board.Under this section, there are several conditions that the creatormust be vary of before creating the derivative work of the originaltrack. For one, no alterations must be made without the consent ofthe owner of the original track. Moreover, alterations that are not"reasonably necessary" for the purpose of making thesound recording should be avoided. Secondly, the derivative workthat is created must not be released in a packaging that is likelyto mislead the general public. This means that the packaging shouldnot delude the public as to the identity of the owner of theoriginal track. Thirdly, a sound recording of the original workshall be made only after expiration of two years after the end ofthe year on which the original track was recorded. In other words,a creator cannot create a derivative work or a sound recording ofthe original track within two years after the end of the year onwhich the original track was created. Lastly, a creator who createsa sound recording of the original work should mandatorily allow theowner of the original track (or his authorized agent) to inspectall records and books of account related to the newly created work.While section 52(1)(j) does lay down the guidelines with respect tosound recordings that are created as a derivative work of theoriginal track, the section is largely ambiguous on several fronts.For instance, the act does not provide clear insights as to how aperson can produce and publish a remix version of a track ondigital platforms such as SoundCloud or YouTube. Moreover, the actalso does not specify up to what extent the sound recording can bealtered or what is the minimum amount of royalty that must be paidto the creator of the original track. Not setting a minimum amountthat should be paid as royalty may be greatly disadvantageous tobudding indie musicians whose work could get exploited. However,the digital space and the music industry is developing at abreakneck speed. With such developments on the rise, it can beanticipated that Indian copyright laws would also be amended withchanging times.
In 2007, the producers of the Bollywood movie Partner landed in a legal soup after it was discovered that the movie was a remake of the Hollywood movie Hitch. Sony Pictures considered a $30 million lawsuit for copyright infringement. However, Partner was released, with Sony acquiring the world exclusive satellite broadcasting rights.
Do these remakes amount to a violation of copyright? We all know that the moment anything is created, it is automatically a copyrighted work- whether you register it or not. In such circumstances, will making mashups, remixes, or compilations constitute infringement.
When any new form of music or video composition is recreated, the creator of the work gets an exclusive bundle of rights over the work and they can further recreate, reproduce, publish, or communicate it to the public. Creators have started to acknowledge the derivative works of the previous version i.e. change of music with original lyrical work. With an increase of creativity in people, they have started to compile, recreate, modify, and redecorate the original song in such a way that the derived song falls under the category of the original song. In this way, a new wavelength of remix, mashup, and compilations has taken its place in the music community.
Recording of a song involves intellectuals and creativity of the entire musical team and once ready, it is converted into an album and sold in the market. When a song is recreated, the creators will consider those songs which are popular in the market to which they will add their different versions of music and raps and turn it into a whole other song.
From a legal standpoint, we need to analyse whether these derivative works are treated as copyrightable works or not, whether they infringe the original work, whether the entrepreneurs have the legal right to exploit such songs and how does the law deal with these practices.
If such a remake of the song is done without the prior consent of the original owner of the song, then it will be termed as an infringement. So, in general practice, the entrepreneurs will contact the original owners of the song through Copyright Reproduction Rights collective management or societies, then will send a notice to them stating their intention to reproduce the song in return for royalty as consideration.
As mentioned above, the owner of a copyright has the exclusive performing rights which include authorisation to reproduce or distribute the copies of the work, to work or perform in the presence of the public using the digital audio transmission, to make derivative work, and publish them.
As a copyright owner of a musical work, the Act gives you the right to record music, sell, distribute its copies in various ways like CD, digital download etc., and/or re-create something creative, novel, or innovative from your pre-existing work and publish it on social media, organise, and perform live performances on various occasions or events in different places or parts of the cities.
Reproduction rights means that the owner of the original copyright work has a right to make copies of their work and store them in any format as per their choices. In case someone unauthorised makes copies of their work or any substantial part of their work then such an act will amount to infringement of the work. For example, making copies of a sound recording or musical work on a CD, computer file, including in a movie etc. 152ee80cbc
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