As a teenager who used to regularly watch Vh1 to keep up with the latest English music videos, the first time I heard Black Eyed Peas' 'Don't Phunk With My Heart', the opening tune sounded familiar. Years later, I realized that the famous American band had actually sampled 'Yeh Mera Dil Pyaar ka Deewaana' from the movie Don.
Sampling, as a process, has existed for years but it is only recently, with the easy availability of widely accessible music records on the Internet, that the casual listener has started picking on this practice. Black's Law Dictionary defines "sampling" as "the process of taking a small portion of a sound recording and digitally manipulating it as a part of the new recording." The small portion in the above-noted definition could be a few notes, speech or music which could be retained in its originality or modified according to the sensibility of the new musical recording.
While the Indian Copyright Act does not have a specific provision pertaining to sampling, the Act does provide for protection of, inter alia, musical works, literary works, sound recordings and vests various rights in the copyright holder. The violation of these exclusive rights is considered copyright infringement.
Sampling a music work, without the prior consent of the original copyright holder, will be an infringement of copyright of the holder. However, to establish such an infringement, the copyright holder will need to establish not only his rights but also show that the infringer has copied a substantial part of the pre-existing work.
The question of deciding substantial similarity has been discussed in various cases. The Bombay High Court held in Twentieth Century Fox Film Corpn. v. Sohail Maklai Entertainment (P) Ltd. that it is the quality of the copied work and not the quantity that would determine infringement of the work or substantial part thereof. Further, the Apex Court had, in R.G. Anand v. Deluxe Films, held that the test of the audience is the most reliable test for deciding the question of infringement and where the reader, spectator or viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original, then a clear case can be made. The court further stated that where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
Further, the Delhi High Court in India TV Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd. identified two types of substantial similarities: (i) Comprehensive non literal similarity; where courts have strived to identify the "fundamental essence of the structure‟, and it being copied, even where specific expression is not copied. (ii) Fragmented literal similarity, in which bits of specified expressions are copied, but the overall structure is not.
As far as sampling is concerned, the Delhi High Court in the above-noted case has also gone out to discuss the defense of de minimis. This is based on the legal maxim de minimis non curat lex, meaning "the law does not concern itself with trifles". Accordingly, when the infringement claimed is very trivial or insignificant, the concept of de minimis will apply.
However, the defense of de minimis is not a magic wand and mere pleading of the defense will not guarantee immunity from a copyright infringement claim. The Delhi High Court, in the India TV case, went on to elaborate the five factors the courts will consider when the defense of de minimis is put forward by a party. These factors are
(i) the size and type of the harm;
(ii) the cost of adjudication;
(iii) the purpose of the violated legal obligation;
(iv) the effect on the legal rights of third parties; and
(v) the intent of the wrongdoer.
These factors are reliant on the principle that trivial and miniscule use of a copyright ought not to be punished and the factors surrounding such use must be considered before a decision is made.
In addition to the above, the Copyright Act may also come to the aid of samplers with the doctrine of fair dealing. The section clearly lays down some acts that will not constitute infringement. The acts that constitute fair dealing, include, but are not limited to, reproduction of a copyrighted work for judicial proceedings, performances by an amateur club for a non-paying audience or for the benefit of a religious institution, reproduction of a copyrighted work in a certified copy or done in accordance with any law, etc.
In totality, while the practice of sampling has become the "In-thing" amongst today's artists, the judiciary and statutory provisions have clearly ensured that such sampling is not at the expense of violation of the rights of the copyright holder. As is apparent from the discussions above, the position in India is also not of giving the copyright holder unfettered rights over the copyright thereby stifling creativity which is why defenses such as de minimis are in place. Accordingly, a conscious effort has been made to strike a balance between the rights of the holder and public interest at large.
So the next time a tune sounds eerily familiar or 'inspired' in a song, you might want to check whether it is a case of sampling or clear cut infringement. Or as the Black Eyed Peas would say it 'No. No. No. Don't phunk with my (he)art".
Originally Published by STANCE.
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