The law of copyright in the music industry today has, over the years, presented several unexpected problems. This is for the simple reason that every piece of music carries with it a bundle of rights, and those rights require to be statutorily recognized and protected, to preclude others from wrongfully exploiting what was due to artists within the industry. However, this has not been entirely unproblematic, as the music industry has witnessed a boom in copyright infringement cases, with artists facing copyright infringement suits like never before. While copyright laws earlier were primarily intended to protect only lyrics and melodies, the stakes today are much higher, with judges ruling that other abstract qualities such as rhythm, tempo, or even the ‘general feeling’ of a song could be attributed worth protecting. In this article, the author attempt to deal with this particular issue, by briefly deliberating what entails an infringement of copyright, and further looking at three possible defenses to copyright infringement.

Copyright law offers a sort of blanket protection over some intellectual creations, among which musical compositions, songs, lyrics, and records form a small part. Copyright law mandates that for a particular piece of work to be eligible for copyright protection, it must fulfill the requirements of originality as well as a minimum degree of creativity. Holding copyright in music has many exclusive rights and advantages, ranging from the right to publicly perform such music, the right to issue copies, to reproduce it in any mode of their choice, and to restrain others from distorting, mutilating, or otherwise using the work for their own pecuniary gain. In the 2016 judgment of Chancellors, Masters, and Scholars at the University of Oxford v Rameshwari Photocopy Services, the Delhi High Court held that “Copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not impede the harvest of knowledge. It is intended to motivate authors and inventors’ creative activity to benefit the public.”Apart from the Copyright Act of 1957 which governs the law of copyright in India, the country is also a signatory to the Berne Convention for the Protection of Literary and Artistic Works, which protects the rights of authors and artists on an international scale, by granting creators the exclusive means to control how their work would be used, and by whom and what terms it would be used.

But when exactly, does copyright in music get infringed? An infringement in copyright occurs when a party’s copyrighted work is used or copied in an unauthorized manner without their prior permission or knowledge. Section 51 of the Indian Copyright Act lays down the situations in which copyright would be deemed to have been infringed and includes many scenarios such as when a person does an act only the copyright holder is authorized to do without his prior permission, someone importing infringing copies of any content, or reproducing the work in any form without the copyright holder’s permission. Even though most songs by artists are inspired by their role models or other pieces of music, the law of copyright about music basically provides for three situations where one could avoid ending up on the wrong side of the law. These are sampling, interpolation, and fair use.

Sampling
Sampling is the process of incorporating a previously existing recording into one’s own music by extracting parts of any song using samplers and digitally incorporating them into another. The Copyright Act 1957 does not contain any provisions that specifically deal with the sampling of music. However, according to Section 14 of the Act, a copyright holder has certain exclusive rights to protect or adapt either their entire work or a substantial portion of it. The stance of the judiciary in this regard has been black and white too. An example would be the case of Saregama India Ltd v Moseley, where a suit was filed against the defendants for having supposedly used a sample from the plaintiff’s music recording into their own without any prior authorization, and thereby blatantly infringing their copyright. Even though the defendants did admit that they had used a sample from the song, they vehemently opposed the allegations on the ground of there being no substantial similarity between the two songs. The plaintiffs dismissed this claim, stating that the aspect of substantial similarity would not even arise, as the sample has undoubtedly been directly copied from the original. However, the court dismissed the suit. It opined that even though there had been some copying, the crux of the issue would lie, not on factual copying but substantial similarity. As the songs overall bore no resemblance with each other, and no reasonable prudent person, unaware of the circumstances in question would ever mistake the two songs for their similarity, it made no sense for the defendant’s music recording to be a violation of the plaintiff’s, simply because the former had copied a one-second snippet of the latter’s music.

On a similar tangent, interpolation is also a similar process by which an artist uses a few elements such as the melody of a pre-existing music piece in his own work. This creates the effect of sampling without actually using the copyright holder’s master recording. It is however essential for the artist to purchase a mechanical license and credit the original songwriter, to legally release the song on a commercial scale.

Fair Use
The doctrine of fair use basically works as an exception to copyright law, by allowing the limited use of copyrighted content in certain situations without having to pay anything or obtain the prior permission of the holder. The reason why ‘fair use’ was considered crucial to maintaining the sanctity of copyright law, is because creativity cannot be compromised in the pretext of protection. The landmark judgment of Folsom v Marsh was the first time that this doctrine was applied by courts, which laid down a few factors that had to be considered to ascertain fair use of any intellectual creation. These factors were later codified and were named the nature of the original work, the amount of it that was taken, and the degree to which this use would financially affect the sale or profits of the original work.

One of the biggest issues with this doctrine, however, is that it is extremely subjective, and can only be decided on a case-to-case basis. Courts look at several factors whilst assessing the applicability of the doctrine, such as the amount and substantiality of the portion used concerning the copyrighted work in its entirety, whether the music used was in any way transformative, or whether its use would in any way drive down the copyrighted work’s value in the market.

In conclusion, the economic and moral rationale behind the existence of the law of copyright in the music industry could not be clearer. Apart from offering artists and musicians the incentive to innovate and create, the complementary rights that come with copyright protection ensure that these creations could effectively be capitalized in an already extremely lucrative industry. It would save parties such as artists and distributors from having their heavy investments go to waste, as copyright would help them prevent others from free-riding by copying and selling the result of their efforts. However, it is also equally important to ensure that one does not lose the right of the true objective behind which the law of copyright was formulated in the first place. This is because once the law works towards disincentivizing artists from exploring their creativity and innovating within their field, its complete essence would be lost.

Written by:
Netra Vasudevan
Student of Christ (Deemed to be Unversity), Bengaluru