Re-creation of Old Songs and the Copyright Law Surrounding it
Updated: May 6, 2020
One will be surprised to know the remakes of our old songs at present and the legal aspect (IPR Law) surrounding it. Many of the old-time classic hits are being copied and given a redefined outlook leaving many of us to wonder for the same. For those generations who witnessed the originality of the modified songs has the thought as to how such classical hits are given such a different high pitch beat thereby raising the question of how much legally correct such activity is.
It must be known that all Old songs are not protected by Copyright Law. To clear out the definition of copyright, one can say that it refers to a set of absolute rights vested on the owner of the Copyright. In Indian context this law safeguards not the idea but the expression on such idea conferring on works ranging from dramatic to literary, musical, artistic, cinematographic films and covering sound recordings. In order to go deep in to the legal aspect of remake of old songs one must identify the first owner of the copyright also taking into consideration the duration for which the person holds the copyright over the sound recording and whether he/she has been assigned the copyright. A copyright has a lifespan during the life of a person and further continues for 60 years starting from the day the author dies. While in case of two or more persons the extent of the copyright protection begins from the following year continuing till the year until the last living author dies. Also, there are works such as ‘Works made for Hire’ which are protected under the United States Law for 95 years from when it was published or 120 years from when it was first created, whichever comes earlier. In order to have claim over the intellectual property rights, the employer should be a part of an agreement for the Copyright act makes it clear that “work made for hire” is what an employee does while in the course of employment with the employer having a right over the same.
To simplify the above concepts and practically applying the same an instance can be taken which says, a man X owns a copyright over a sound recording which was published on 18th of September 1970. He died on 6th June 1990. So, the Copyright of his sound recording will be protected till1st January 2051, before it enters in to the Public domain.
Section 52(1)(j) of the Copyright Act says that remixes made out of the original sound recording can be allowed before the original work enters the public domain if a notice is given to the original owner of the copyright stating the intention to make a remix followed by a payment of royalty fixed by the Copyright Board. It is up to the original owner whether to accept the offer or decline it. If the offer is not accepted, then the person wanting to make the remix of the sound recording cannot seek protection under this section if the same goes on and the person will be held for infringing the rights of the original owner.
In a landmark case of Gramophone Co v. Super Cassettes (1999) PTC 2, the Defendants sent a letter to the Plaintiff to make cassette recordings of the original literary work which was not accepted. The Defendants still went forward and produced the cassettes. The Plaintiff filed a case against the Defendant for infringement of Copyright. The Defendants pleaded defence under Section 51(1)(j) of the Copyright Act. The Delhi High Court after considering all the provisions held that the Plaintiff did not give permission to the Defendant to make a cassette recording of their literary work and no one can become automatically entitled under Section 51(1)(j) to make a new sound recording of a previously protected original Copyright. The learned Judge held that the Defendant infringed the Plaintiff’s Copyright.
While, it can be said that remodelling of original songs can be done taking into concern two instances. First, when the protected copyright enters in to the public domain then it can be used by anyone to make a remix and secondly, before the original work enters the public domain if a notice is provided to the original owner of the copyright stating the intention to make a remix followed by a payment of royalty fixed by the Copyright Board then it would be legal and protected under Section 51(1)(j) of the Copyright (Amended) Act, 2012.
[i] The Indian Copyright Act, 1957 (14 of 1957).
[ii] (1999) PTC 2.
[iii] Harsh, Who Owns the Invention- The Employee and Employer Conundrum, Mar. 2016.
Anant Khanna (B.A., LL. B (H) Sem 8, ALSK)
Chandrika Saha (B.A., LL. B (H) Sem 8, ALSK)