Indian Music Industry and the Copyright Controversy

Introduction

Copyright is an exclusive right of the owner over their literary, artistic, dramatic, sound recordings or cinematographic works. It protects the owner’s work from unauthorized duplication.  Musical work refers to a work which comprises music and is made up of a blend of graphical notations or graphic score which represents music through visual symbols. The creator of any musical work is the composer. Sound recordings comprising of any person’s speech and songs sung by any person with or without music such as any audio or any podcast are also subjected to copyright just like musical works.

The evolution of Copyright law

The recreation of songs in the Indian music industry has inundated the industry with several incidents of copyright infringement. The Copyright Act, 1957 Act initially defined ‘Musical work’ as any combination of melody and harmony or either of them printed, reduced to writing or otherwise graphically produced or reproduced. This definition completely excluded the presence of lyrics and voice as part of a ‘musical work’ thereby completely out casting the rights of the singer and of the lyricist. The amendment of 1994 also did not help to dispel the ambiguity in relation to the protection of lyrics and the legitimacy of the inspired versions of the songs with the same lyrics which could be created with a different composition or music. Thus, the Copyright Law was amended in the year 2012 to deal with the evolution of the music and film industry and to strike off the archaic portions of the act. It made such contracts void which could lead to propagation or reproduction of work originally protected under the copyright law, such as by inclusion of provisos 2 and 3 under section 18, which stated that an author of a literary or musical work that’s is included in a cinematographic film shall not assign or relinquish his rights to receive royalties for the utilization of the work. The law if strictly applied is crystal clear and facilitates the avoidance of any exploitation or infringement of original work, but trouble arises when a labyrinth of contracts creates overlapping or conjoining rights because the entertainment industry functions as per contractual relations between various stakeholders.

Masakali 2.0

The song ‘Masakali 2.0’ was recreated and composed by Tanishq Bagchi, without the consent of its original creators – composer Mr. A.R. Rahman and writer Mr. Prasoon Joshi. Its original version, ‘Masakali’ was a part of the movie ‘Delhi-6’ released in 2009. The song was re-created by T-series, the same record company which was responsible for the production of the original song in Delhi 6. This controversy raised the question on the extent of the right of the record label over a song. In totality, the right of every person associated with the song including the lyricist and the composer is protected, by section 13(1)(a) of the Copyright Act. In the case of original literary works, the rights of the singer are protected under section 38 of the same act for 50 years. The song ‘Masakali 2.0’ poses threat to the concept of Originality and its appreciations which is the basis of Copyright. The second proviso to section 17 (by the 2012 amendment), states that even if a musical work is considered to be commissioned or created under a contract of service, the composer would be regarded as the first owner of the copyright in the compositions included in a film. Hence, T- Series could not have re-created the song on account of their copyright in the sound recording or film incorporating it, without obtaining the consent of Mr. A.R Rahman (the producer as well as the composer of the original song) since he is the first owner of copyright in the original ‘Masakali’ composition. Therefore, without him assigning or licensing his copyright, the label had no right to remake or authorize another to remake the song ‘Masakali’.

Genda Phool

The lyrics of the song ‘’Genda Phool’’ which is a remake of ‘Boroloker Biti Lo’, released by singer Badshah came under controversy recently because of a controversial line, followed by a pure musical score between 0:44 mins and 1:17 min of the song roughly, which is repeated twice. In the Song Description available on YouTube, no reference is made or credit given to Ratan Kahar, who as per the documentary, ‘Ratan Kahar-The forgotten gem’ in 1972 wrote the lyrics of the song ‘Boroloker Biti Lo’ when he was part of an organisation named Anan Gosthi. This popular song was sung in the choir. It is also not a hidden fact that his song was perhaps used many times without any credit. The song ‘Boroloker Biti Lo’ was first adapted by a well-known Bengali folk music singer, Swapna Chakraborty, in 1976 who led it to fame thereon. However, Kahar was not given any credit, back then as well. The question which arises here is whether Ratan Kahar was the original author of the song and what provisions of the Copyright Act are attracted with reference to the latest song ‘Genda Phool’?

It is alleged that Badshah reproduced the work and also communicated it to the public via an electronic medium (YouTube) through adaptation of the work. Looking at the interpretation clause of the Copyright Act, 1957, ‘adaptation’, with respect to musical work deals with any form of arrangement or transcription of the work. According to the Indian Copyright Act, authors have a near-absolute right to “claim authorship of the work” as per section 57(a). Thus, if it can be proved that Kahar actually wrote and rendered the song ‘Boroloker Biti Lo’, and the lyrics and/or rendition of ‘Genda Phool’ is substantially similar to the copyrightable part of the original song, then Badshah’s actions would come into conflict with section 57(a) of the Act. It would even constitute out-and-out infringement under section 51 of the Act for violating Ratan Kahar’s exclusive rights over the song under Section 14 of the Act. This would occur even so the results of any due diligence done. All information on the song that one could recover during due diligence revealed that ‘Boroloker Biti Lo’ was a traditional folk song from the Bauls of Bengal and is a crucial point because expressions of traditional culture or folklore are open to recreation and sampling. This would also bring parts of the original song ‘Boroloker Biti Lo’ under the scanner to determine what is actually protected under copyright law in the first place.

Scholars observe that the fiction of pure originality often can be used to expropriate and economically benefit from traditions, identities, ideas, expressions of the minority communities, to their exclusion, without any equitable sharing of benefits. This kind of control over the culture of the people is on the brink of controlling “their self-definition tools in relation to others.” Kahar had reportedly responded to Badshah’s statement where the rapper had stated that he wanted to help the veteran artist. Kahar replied that he expects a little monetary help from him (Badshah) because he lives in a poverty-stricken condition and that he would be glad to receive his help. Acting promptly, Badshah reached out to Kahar and deposited Rs 5,00,000 to the veteran artiste’s bank account. This also brings into light that copyright law allows the privilege of being benign and charitable alongside those whose work the act does not consider valuable enough for protection.

Conclusion

The Indian music industry has been in an unfolding phase and has been a nest for some of the most celebrated artists. However, the structural differences in the industry have invariably led to the limelight falling off the musicians who in the first place created the music and falling on the Producers or Music labels who seem to be inconsiderate when it comes to sharing the praises with those who deserve it. The proceeds and profits from the work of the artist re-creating from the original work must be appropriately shared with the first creator. Copyright protection not only gives protection to his hard work from being violated and infringed by unauthorized sources but also gives him the power to resort to legal remedies in case of infringement and prove that the work was originally created by him in the first place. Any person deriving unjust enrichment from others’ work should not be allowed to benefit from the same, therefore, the right of authors to receive royalties and benefits should be protected and cases of commercial exploitation of the work of an author should be followed by him receiving credit for the same along with the payment of royalties.