The essence of copyright law is to protect the collective efforts put in by creators who produce work that has some intrinsic value. Music, created through a collaboration between musicians, producers and composers, is one such work on which copyright subsists. When this music is altered, distorted and transposed by adding new compositions to it, a remix is formed. Thus, in a broad sense, a remix can be defined as a piece of music whose original state is altered by removing or adding parts of the original composition or by changing its components which may include its tempo, bass and beats. A remix can also be considered as a musician's original work which is derived from the original track that is being used to create the remix. Several musicians, especially in the film industry, tend to create remix versions of hit songs from the 70s, 80s or the 90s by re-recording the songs and by altering its musical components. Since the original songs are works on which copyright subsists, copyright law plays 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 do not effectively address the laws that may be applicable with respect to remix music. Article 13 of TRIPS (Agreement on Trade-Related Aspects of Intellectual Property) mentions that "certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder". This implies that as long as a creator does not receive any monetary gains from the remixed music, the exclusive right of the author (of the original track) would be limited. The remix here will be considered as 'amateur creativity'. Another necessary condition that should be satisfied under Article 13 is that the remixed music should not threaten the commercial viability of the original work. Article 10 of the Berne Convention also explicitly states that it is permissible to create work that is a derivation of the original work but it should be compatible with 'fair practice'. While several countries are unclear on their position with respect to remixed music and copyrights, some countries have laws that are specifically in place for non-commercial user-generated content that could be applicable to remixed music. Canada's Copyright Modernization Act is one such example. Article 29 of the act explains certain conditions under which a work would not amount to infringement:
- the use is done solely for non-commercial purpose; (ii) the original source is mentioned; (iii) the individual has reasonable ground to believe that he or she is not infringing copyright; and (iv) the remix does not have a "substantial adverse effect" on the exploitation of the existing work.
In India, section 2(p) of the copyright act, 1957 defines a 'musical work' as a work that comprises of music and includes graphical notations of the work. However, the definition of 'musical work' under the copyright act specifies that the copyright does not subsist upon any words or actions that are intended to be sung, performed or spoken along with the music. Moreover, section 13 of the copyright act specifies that copyright subsists on an original musical work as well as a sound recording. In a digital age like today, the internet and several other platforms are largely unregulated. This could lead to a creator's work being misused under several circumstances. Although, remixed music cannot be considered as a misuse of an original track. Rather, it is a derivative work of the original musical composition. However, in order to ensure that a person does not wrongfully exploit another creator's musical composition through remixing, certain conditions have to be satisfied before remixing a track. Once these conditions are satisfied, the remixed song will not be considered as an act of infringement. Such conditions are specified under section 52(1)(j) of the copyrights act.
Firstly, it is mandatory to obtain the consent of the owner (of the right in the work) before remixing a song. In other words, a person cannot remix a song without consent from the original track's composer. In Gramophone co v. Super Cassettes, an audio cassette titled 'Ganapati aarti ashthavinayak geete' was to be recorded. In order to make a sound recording, the defendants approached the plaintiffs with an offer to pay a license fee. However, the plaintiffs did not give their consent to the defendants for the usage of the sound recording. Subsequently, the defendants, without the consent of the plaintiffs, added the sound recording to the audio cassette. It was held that the plaintiff's consent was imperative for using the sound recording under section 52 (1) (j) of the copyrights act. Secondly, it is crucial that the person creating the sound recording must mandatorily provide a notice of his/her intention to make the sound recordings to the owner of the original track. Additionally, the person making the sound recordings should also provide the copies of all the covers or labels which consists of the original track and has to pay the owner a 'work royalty' at a rate which would be fixed by the copyright board. Under this section, there are several conditions that the creator must be vary of before creating the derivative work of the original track. For one, no alterations must be made without the consent of the owner of the original track. Moreover, alterations that are not "reasonably necessary" for the purpose of making the sound recording should be avoided. Secondly, the derivative work that is created must not be released in a packaging that is likely to mislead the general public. This means that the packaging should not delude the public as to the identity of the owner of the original track. Thirdly, a sound recording of the original work shall be made only after expiration of two years after the end of the year on which the original track was recorded. In other words, a creator cannot create a derivative work or a sound recording of the original track within two years after the end of the year on which the original track was created. Lastly, a creator who creates a sound recording of the original work should mandatorily allow the owner of the original track (or his authorized agent) to inspect all records and books of account related to the newly created work. While section 52(1)(j) does lay down the guidelines with respect to sound recordings that are created as a derivative work of the original track, the section is largely ambiguous on several fronts. For instance, the act does not provide clear insights as to how a person can produce and publish a remix version of a track on digital platforms such as SoundCloud or YouTube. Moreover, the act also does not specify up to what extent the sound recording can be altered or what is the minimum amount of royalty that must be paid to the creator of the original track. Not setting a minimum amount that should be paid as royalty may be greatly disadvantageous to budding indie musicians whose work could get exploited. However, the digital space and the music industry is developing at a breakneck speed. With such developments on the rise, it can be anticipated that Indian copyright laws would also be amended with changing times.
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