Critical Analysis Of Media And Copyright Issues In Streaming World
Author: LawSphereX
Category: Intellectual Property
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CRITICAL
ANALYSIS
OF MEDIA AND COPYRIGHT ISSUES IN STREAMING WORLD Adarsh Kumar Singh, B.A. LL.B. (Hons.), School of Law, NMIMS Bangalore
ABSTRACT
The copyright law has taken an advance flight in the modern Indian Scenario wherein foreign companies along with domestic ones have been utilising their rights of creative works through the propositions of copyright law. In the dynamic business world, it serves as a crude proponent of expansion and creative liberty that grants the companies with the autonomous freedom to profit off their creative works. It also helps in creating a demand for property that was inherently created with the sole purpose of distribution. However, the modern technological advancements have led to new ways in which the distribution of such works has been subjected to inherent copying and distribution through illegal means.
This is not a new phenomenon in the fastpacing technological dynamic world of internet wherein the disruption through distribution has been in disputes from the early 20th century with the works of Napster and other illegal companies. This paper presents an opportunity to analyse the framework of copyright law in relation to new and budding companies like Spotify, Pandora, Netflix which have gained a substantial proportion of customer base in the New Digital India revolution. It talks about the various problems that artists face in the implementation of copyright law when it comes to underpayment of royalty distributions, discriminatory distribution of new albums and legal battles that artists have to face in the new digital world of streaming.
It also takes into account the debatable original works of remixes and how the artists have to face multitudes of problems when it comes to proving the originality of work in the reproduction of music in terms of remixes and reverbs. Lastly, it provides with feasible options and case laws as to what the court thinks is the right direction to proceed when its arguable copyright claims in relation to film and music works arise. Keywords: Copyright law, Remixes, Spotify, Netflix, Pandora, Napster
LITERATURE REVIEW
ARTICLES: a) Hit Netflix Content and The Copyright Infringement That Follows. 1by Baylee Carter à The article talks about the seemingly humungous catalogue that is present with Netflix along with the copyright claims that it has to deal with on a daily basis. à One of the recent cases that it talks about relates to the “Enola Homes Series” wherein the heirs of Conon Doyle estate (Sherlock Holmes) allege on the infringement of character of Sherlock Holmes in the movie. à It also glimpses on the idea of settlement cases and how movies like bicycle thief which was available in the public domain was allowed to be streamed as it is. However the subtitled version(a derivate work) got under the problem of copyright infringement. Before the court, there was an out of the court settlement on the matter.
à Lastly, it talks about the strategy of settling in infringement cases and how companies are willing to pay less in settlement cases rather than risking their reputation in court. By reaching a settlement, both parties may go forward with confidence, and Netflix can explore ways to reduce protections for derivative works until formal court decisions are issued. b) The Background Score to the Copyright (Amendment) Act, 2012 by Prashant Reddy T. 2 labels along with the conflicts that have been dealt with during such time. à The article also focuses on the historical context as to how the discussion on the amendment started and what significance it holds for artists all over India. à In a rare moment, it also outlines the opinions of national Poet and lyricist Javed Akhtar regarding the copyright amendment act and its substantial law part.
c) Right to Research and Copyright Law: From Photocopying to Shadow Libraries by M. P Ram Mohan and Aditya Gupta3 à The paper talks about copyright law and the right to research. It focuses on the usage of academic literature which holds paramount importance in researching. The problem with such literature is that most of it is guarded behind paywalls, forcing people to use websites like Sci-Hub for fulfilling objective through academic piracy. à It evaluates on the topics of the general concept of the freedom to study, the Open Access Movement, fair dealing in copyright law, academic piracy, and court judgements in the United States, India, and other countries regarding the same. à Lastly it defines the outcomes and objectives that copyright law has played in academic privacy and its media application through distribution of academic research and publication.
d) The Expansion of Spotify and International Copyright Law: Impact on Artists by Susanna à The expansion of such gigantic streaming begs the question of international copyright law since interest of artists, labels, recorders and other parties come to stake on a global level rather than domesticated issues. à The article relates the usage of multiple literary and artistic works in comparison to international treaties like The 1996 WIPO Internet Treaties, which were inculcated under the 1886 Berne Convention for the Protection of Literary and Artistic works. à Lastly, this article talks about how treaties and laws were not made with streaming giants in minds and calls for a reform to include these new and dynamic businesses into law. e) Music You Love: Harmonizing Music Streaming and International Copyright Law by Annalisa Choy.
5 à The article talks about the issue of transitory electronic storage uses and how reproduction of songs and works through this storage uses poses a serious question of reproduction on international copyright law. à It answers the questions related to royalty under both transitory electronic storage like pandora and Spotify and permanent electronic storage covers like Apple iTunes. à Lastly, it concludes on the silence of international copyright law on matters of these new streaming apps and how they pose a significant threat to artists who are undervalued and underpaid because of lower specific international recognition under law. 5 Annalisa Choy, Music You Love: Harmonizing Music Streaming and International Copyright Law, CORNELL INTERNATIONAL LAW JOURNAL, (27 April 2018), Vol. 7, https://cornellilj.
org/2018/04/27/music-you-loveharmonizing-music-streaming-and-international-copyright-law/ BOOKS: Iyengar's Commentary on The Copyright Act6 • The book provides a conceptually sound review of the copyright act with regards to the commentary of the author. It talks about the various sections and applicable cases during the recent factual scenario • It talks about the various provisions applicable to music and literary works which are deemed to fit in the copyright phase along with landmark cases which have defined the court’s direction when it comes to media and copyright issues. Creativity and Copyright: Legal Issues for Screenwriters and Creative Artists7 • The book talks about creative works and case laws which elaborate various unique cases as well as the sad sorry state of affairs of screenwriters and creative artists when it comes to copyright claims and cases.
• The author mainly provides for not limiting the creativity on the issue of copyright but provides for various instances and examples that talk about how ideas can be talked about without going with copyright. • The book helps in quickly understanding the laws that govern creativity, ideamaking, and selling and how to protect works from the legal quagmires they may encounter during writing. Music Law: How to run your Band Business8 • The book talks extensively about running bands and music shows along with dwelling on the concepts of song lyrics, signing contracts and sampling the songs locally.
6 T. R. SRINIVASA IYENGAR, IYENGAR'S COMMENTARY ON THE COPYRIGHT ACT(Universal Law
and Publishing, 2020).
7 HOWARD SUBER, CREATIVITY AND COPYRIGHT
LEGAL ISSUES FOR SCREENWRITERS AND CREATIVE ARTISTS( University of California Press, 2019)
8 RICHARD STIM, MUSIC LAW
HOW TO RUN YOUR BAND BUSINESS,(Nolo, 2003)
The band writership agreement plan along with the problems faced by producers when it comes to independent music players and bands is also one of the most debated issues in the book. The Creative Artist’s Legal Guide: Copyright Law: Copyright, Trademark and Contracts in Film and Digital Media Production9 • The book presents us with a comprehensive guide regarding the media environment and relation of law with intellectual property and film making. • It presents us with essential legal contract making techniques along with a guide on people needed in a film production to protect people from sue notices and copyright problems. • The book also analyses the digital context of reproduction of media into the discussion as it divulges into vulnerable environments of film and digital media production.
STATEMENT OF PROBLEM The paper presents the problem of modern digital works reproduction like streaming music and movies in the context of royalties and inadvertently planned obsolete copyright law. The copyright law is silent with respect to the digital consumption hungry streaming works like Netflix, Spotify, pandora and other remixing clients which take undue advantage of artist contracts and low royalty paying programmes. This problem lies with the implementation of non-stringent laws applicable on these 21st century apps and the blatant violations that these apps have been continually doing to undercut artists and expand exponentially on a global scale. This paper seeks to provide for the feasibility of such copyright laws under the new media along with suggestions and a critical analysis of the same.
RATIONALE OF STUDY We use apps like Spotify, Pandora, YouTube Music and Netflix on a daily basis. They have constituted a major part in our lives when it comes to entertainment consumption. These giants
9 ELLEN SEITER, THE CREATIVE ARTIST'S LEGAL GUIDE
COPYRIGHT, TRADEMARK AND CONTRACTS IN FILM AND DIGITAL MEDIA PRODUCTION,( Yale University Press, 2012) have transformed themselves from being humble online distributors of simple music to diversifying themselves to be conglomerates of huge catalogue of MediaWorks like podcasts, audiobooks, music and exclusive movies that are sometimes available only on their platforms. The rationale of the study is based on the prompt response that the audience provides to these streaming giants who are minting top dollar based on tactics of settlements and underpaying streaming count royalty. What is more overwhelming to know is that the inherent business model of these strong industries prevents them from being sued and allows milking the production houses.
This is done by paying less in bulk and using the deficiencies of copyright law to avoid huge costs that a production label had to receive in the distribution of works when DVD’s and CD’s along with vinyl records were in circulation. The Internet has provided them with the freedom to bypass costs and cheat the artists who feel aggrieved by the behaviour of these establishments. Thus, this study would help the reader in gaining an overhauled perspective on the copyright law and new media distribution.
RESEARCH
OBJECTIVES
Ø To inform the reader about the current situation of the copyright law in relation to Digital Media distribution apps. Ø To make the reader understand the problems underlying with the model of business that such companies undertake. Ø To discuss on the issues faced by various artists (whether independent or established). Ø To discuss on the blatant violations and recent case laws that have followed pursuing to tactics followed by such companies. Ø To present certain solutions to the problems mentioned above along with latest remedial measures that are being used by artists to confront these big giants. RESEARCH QUESTIONS
1. What are the various copyright law issues with apps like Spotify and Pandora in the
modern tussle between artists and corporate giants?
2. Are remixes subject to copyright in the new era of non-originality with respect to apps
like Soundcloud?
3. What are the new feasible options available in Copyright law in relation to new media
works like Netflix or Other OTT platforms?
4. What is the Critical Analysis and Possible suggestions for the above problems?
RESEARCH
METHODOLOGY
The Methodology that would be applied for conducting this research is Doctrinal, Analytical and Comparative research. In this research the primary sources of data are Copyright Act, 1957 and various new and old Judicial Precedents. The secondary sources of data comprise of published books, journals, scholarly articles, online only journals, research reports and other scholar worthy materials. WHAT ARE THE VARIOUS COPYRIGHT LAW ISSUES WITH APPS LIKE SPOTIFY AND PANDORA IN THE MODERN TUSSLE BETWEEN ARTISTS AND CORPORATE GIANTS?
The amendment to the existing copyright law act of 1957 was carried out owing to the sensitization of issue of copyright management and revenue sharing structure that is fair and reasonable to all owners and writers of filmed and recorded works. 10 One of the prime judgements that put the plan in action for the amendment was the Javed Akhtar v. Magic Mantra Vision. 11 This unreported judgement helped bring the grievances on the table for the others to see that copyright law has deficiencies in terms of music sharing and copying along with royalty issues. 12 However, the act still comes short to address the issue of royalty and copyright claims in the digital streaming creative works. Even if a court rules in favour of the owner, infringement would undoubtedly persist if the local copyright regime is not strong enough to prevent it.
13 Section 51(1)14 of the Copyright Amendment act specifically protect the 10 Bhumesh Verma, Somashish, A critique of the provisions on Copyright Societies under the Copyright Act, 1957, SCC ONLINE BLOG, https://www. scconline. com/blog/post/2018/03/14/a-critique-of-the-provisions-oncopyright-societies-under-the-copyright-act-1957/ 11 Javed Akhtar v. Magic Mantra Vision, CS (OS) NO. 1743/2005 (Delhi H. C. ), August 21, 2006, (Unreported)
12 Shammad Basheer, The Copyright (Amendment) Act 2012, A Fair Balance ,5 NUJS L. REV. [i] (2012)
13 Christopher Beam, How Strict Are Chinese Copyright Laws?, SLATE (Oct 22, 2009, 6:16 PM),
https://slate. com/news-and-politics/2009/10/is-copyrightlaw-in-china-any-different-from-in-the-unitedstates. html. 14Copyright Amendment Act, 1957, §51(1) , No. 14 , Acts of Parliament, 1957 (India). digital works including music and cinematography works. The reproduction of such content without due permissions is highly condemned to be subject for penalties and civil action. In India the trend of most of the cases pertain to copyright infringement by individuals rather than big companies. A recent case is that of Global Music Junction Pvt. Ltd. Vs. Annapurna Films Pvt. Ltd. and Ors. 15 wherein it was held that specific right to performance clauses should not be guided in the form of specific injunctions under copyright infringement. The earliest examples of unsolicited sharing of works without proper licensing pertains to the development of Napster in the early 21st century.
With the advent of Napster in 1999, the world was introduced to the first streaming on-demand music subscription service, which offered users unrestricted access to a massive music library for a single monthly charge. 16Although P2P music sharing had been around before, Napster streamlined the process by consolidating the industry and foreshadowed the future success of rival digital music streaming companies. However, similar to modern music streaming services, the downfall of Napster is the same reason which plagues the whole industry in today’s dynamic world. Napster was crushed by multitude of copyright lawsuits in just a span of 2 years and was burdened with lower or no licensing for most of the works present on the platform. With a database of over 5. 6 million UK recordings at its disposal, Phonographic Performance Ltd.
(PPL), the UK's collective rights organisation, is able to work with major record labels and a variety of international music licencing firms to incorporate global data into their ongoing efforts to maintain music licencing and respect sound recordings. 17 In a bid to keep up with competition , the modern digital rivals of Napster like Spotify and Pandora have taken ways of negating the due procedure of acquiring licenses in the hope of expediency rather than compliance. They believe in subscription-based music sales that don't include direct (i. e. , from the copyright holder) licencing or compulsory licencing (i. e. , obtained without express due permission from the license holder). 18 The problem with these apps is the approach of “having all the music in the entire world on the fingertips but not paying for it fully”.
This constitutes the idea of mass catalogue with little to no procurement costs that lead to massive profits for the company. It is because of such
15 Global Music Junction Pvt. Ltd. v. Annapurna Films Pvt. Ltd. and Ors., 2023/DHC/000064
16 Frances Lewis, Slipping Through The Cracks
How Digital Music Streaming Cuts Corners On Artists' Royalty Revenues Globally, 43 BROOK. J. INT'l L. 297 (2017). 17 Joao Pedro Quintais & Joost Poort, The Decline of Online Piracy: How Markets - Not Enforcement - Drive down Copyright Infringement, 34 AM. U. INT'l L. REV. 807 (2019).
18 Anna S. Huffman, What the Music Modernization Act Missed, and Why Taylor Swift Has the Answer:
Payments in Streaming Companies' Stock Should Be Dispersed among All the Artists at the Label, 45 J. CORP. L. 537 (2020) underpayment tactics that various topics all over the world condemned the practices of Spotify and removed their content from their streaming service. 19 Netflix, Spotify and other companies also follow the principle of settlement rather than compliance in their regimes. Instead of paying right royalties and buying adequate licenses, these companies believe in acquiring a huge catalogue first and bearing the cost later through settlements which helps in keeping the costs at check along with brand reputation; since cases are settled before going to the court. 20 In India, Spotify has been served with multiple notices of copyright infringement and illegal reproduction under Section 31D 21of the copyright act.
One of the most recent injunction cases in relation to Spotify and this section was with Saregama who directed Spotify to remove entire libraries of songs after an injunction. 22 Recently in Tips Industries Ltd. v. Wynk Music Ltd23, it has been determined that the relevant sections of the Copyright Act requiring statutory licencing does not apply to music that is downloaded digitally or streamed over the internet. Thus, such a precedent can have detrimental effects for artists when it comes to copyright reproduction enforcement in relation to companies like Spotify. In International upcoming Precedents, the outcome of Eight Mile Style, LLC et al v. Spotify USA Inc. 24 wherein the plaintiffs claim that Spotify unlawfully put recordings of their musical works in the Spotify collection without permission, would set a worthy note if its not settled beforehand by Spotify.
Additionally, the recommendations of 161st Rajya Sabha25 report on Review of Intellectual Property Rights Regime in India provide in maintaining the sanctity and significance of IPR laws along with a clear focus on making artist focused copyright laws. In terms of copyright societies, they can be deemed to be insufficient at best since their workings do not corroborate to international standards of other copyright royalty boards in developed countries. These boards have distinguished themselves in the field
19 Id
20 Sarah Perez, Spotify settles the .6B copyright lawsuit filed by music publisher Wixen, TECH CRUNCH, (20 December 2018), https://techcrunch.com/2018/12/20/spotify-settles-the-1-6b-copyright-lawsuit-filed-by-musicpublisher-wixen/
21 The Copyright Act, 1957, §31(D), No. 14 , Acts of Parliament, 1957 (India).
22 Sakshar Law Associates, Tracing the Spotify litigation Journey in India, LEXOLOGY, (March 24, 2022), https://www.lexology.com/library/detail.aspx?g=d0e0f5e6-8b97-49d7-9aec- 4be71bc7a6e5#:~:text=Responding%20to%20a%20copyright%20violation,Saregama%20from%20the%20app %20within
23 Tips Industries Ltd. v. Wynk Music Ltd, MANU/MH/0862/2019
24 Eight Mile Style, LLC et al v. Spotify USA Inc., 535 F. Supp. 3d 738 (M.D. Tenn. 2021)
25 161st Rajya Sabha Parliamentary Standing Commission Reports, Review of the Intellectual Property Rights Regime in India, DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON COMMERCE, (23rd July ,2021), https://rajyasabha. nic. in/rsnew/Committee_site/Committee_File/ReportFile/13/141/161_2021_7_15. pdf of allowing artists the rightful compensation and royalty that they deserve. 26 Without an agreement between Streaming services, the Copyright Royalty Board has the authority to establish prices for licencing copyrighted content. This leads to efficient method of licensing and royalty control. 27 In the present scenario it can also be observed that big labels who are licensing their catalogues have resorted to new and improved ways of sharing copyright data to streaming services. Some of these instances include the Taylor swift-Spotify share sell off strategy.
When a musician signs with a record company, they may get a cash advance or free use of high-priced studio time. When an artist becomes successful, they are able to start paying back the label the money they are owed. Swift insisted on an unusual stipulation, which states that if UMG sells its interests in Spotify, then the company cannot withhold any of the proceeds from the sale from its other artists who are still in debt to the label. This provision has no effect on the royalty payments Spotify makes to UMG or its artists for music played on Spotify. 28 Section 5529 of the Copyright Act grants the artists the remedial measures through damages, compensation and other means. In the recent case of Entertainment Network (India) Ltd. and Ors. vs. Super Cassette Industries Ltd. and Ors.
30, the ratio decidendi was concluded that the court's duty in issuing compulsory licences is to strike a fair balance between the rights of the copyright owner and the other party. Hence it is important that we formulate such rules that balance the rights between copyright holders like artists and distribution streaming houses like Spotify and Pandora. THE MELODY MAZE: CHARTING THE COURSE OF REMIX MUSIC AND COPYRIGHT IN INDIA Famous songs from the 1970s, 1980s, or 1990s, like Bachna Ae Haseeno, Badanpe Sitare, Kehdoon Tumhe, and Laila Main Laila were big hits. Remixes of these popular Bollywood songs are a common sight in movies and web series these days. There are a lot of videos on YouTube and Instagram Reels of people or "influencers" singing and lip-syncing to their own 26 Angelina Sanchez, Copystrikes and Meme Bans: Social Media and Copyright Protections in the Digital Age,
47 BROOK. J. INT'l L. 299 (2021)
27 17 U.S.C. § 114 (2006 & Supp. 2012)
28 Supra n.13
29 The Copyright Act, 1957, §55, No. 14, Acts of Parliament, 1957 (India).
30 Entertainment Network (India) Ltd. and Ors. v. Super Cassette Industries Ltd. and Ors. , (2008)13 SCC 30 songs. When people talk about remixes, they mean that the composers change the way the music sounds by adding or changing beats and lyrics. A remix can be defined as a modified version of an original piece of media, such as music or a tune, that has been altered by adding, removing, or changing parts of the original composition. In today's age of abundant remixes, there is a perceived lack of originality in the music industry as some believe that using any part of an existing work without permission constitutes copyright infringement. Additionally, remixes have had a significant impact on society by providing entertaining content and becoming a crucial component of user-generated content.
They have also made a considerable impact on social media platforms like Facebook, Instagram, YouTube, Snapchat, and Pinterest. The Copyright Act31 protects sound recordings, which can include songs with or without music and can encompass podcasts or audios. For instance, all the audios and podcasts on Spotify are copyrighted. When something is created, it is automatically considered to be a copyrighted work, whether it is registered or not. Creating a remix without obtaining permission from the original owner can result in an unauthorized remix and other legal consequences, so it is important to follow a legal checklist to ensure it is permissible. The Indian Copyright Law has its roots in colonial rule, dating back to 1847. In 1914, the copyright law was revised with some important changes.
The regulations from 1914 remained in place until the introduction of a new law in 1957, known as the Copyright Act, 1957. In 2012, the Parliament passed the Copyright (Amendment) Bill, 2012, which aimed to bring the Indian Copyright Laws up to international standards and align them with World Intellectual Property Organisation (WIPO) treaties such as the WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT). The amendments made in 2012 included: • Changes to the rights associated with artistic works such as cinematographic films and sound recordings. • Changes to the methods of licensing and assignments.
31 The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
Aligning with the WIPO treaties. • Keeping records of copyright authorization. • Protecting against internet piracy. • Ensuring that remix makers are protected under the Copyright Act. • Requiring prior consent from the owner of the copyrighted work. Section 52 (1)(j)32 of the Copyright Act states that creating a sound recording of a literary or musical work will not be considered copyright infringement if the person who wants to make the copy has obtained the necessary consent from the original owner and has paid the predetermined royalty fees set by the Copyright Board. The person who wants to create the remix must not make any changes without the consent of the owner and cannot alter the work in any way that is not necessary for the adaptation. The new sound recording should not be labeled or packaged in a way that would mislead the public about the original artist.
The remix should not be produced until two years have passed from the end of the year in which the original song was created. The original owner of the song has the right to inspect all records and publications related to the remix. The consent of the original song owner is important because they are the ones who created the original sound recording and therefore have the exclusive right to it. If the copyright owner complains about unpaid royalties or if the Copyright Board 33is suspicious about such a complaint, it may issue a halt on the production of sound recordings and, after further investigation, take appropriate action. Section 52 (1)(j) 34states that works such as music and sound recordings must obtain permission from the copyright owner for specific adaptations and modifications.
This serves as a legal permission to use the copyrighted work, provided that the user pays the required fee or meets the requirements of the law. 32The Copyright Act, 1957, §52(1)(j), No. 14, Acts of Parliament, 1957 (India).
33 Ibid.
34 Supra note 32
According to Section 51 of the Copyright Act35, it is considered an infringement if someone violates the rights given to the copyright owner. However, this does not apply in cases where: • A person has obtained prior consent from the original work owner and made the necessary payments to create a copy of the musical, artistic, or any other work. • The new work is not marketed with labels or covers that may mislead the public about the artist's identity. • The new work is not created until two years have passed since the original work was created. • The owner of the original work has the right to review all records and publications related to the new work. It is clear from these points that the consent of the original owner is crucial and the remix should not be made until two years have passed since the original song was created.
The administration of music rights boils down to two questions: • Who is the owner? • Who is owed what? In most musical collaborations, copyright and publication divisions are not usually clear-cut: • Who composed what? • What is the value of these contributions? • What is the legal position? • What do collaborators consider fair? There might be considerable gray area. Even more so when it comes to remixing, which is the act of using the raw ingredients of an existing recording to create something new. And although
35 The Copyright Act, 1957, §51, No. 14, Acts of Parliament, 1957 (India).
there may be a few basic revenue-sharing alternatives in the culture of remixing, none of them are all-encompassing. First, we recognize that musicians just want to create music, exchange ideas, finish their work, release it, and wow their audience. In the excitement of hearing, agreeing, and publishing a remix, all this royalty split information may appear unnecessary. But then money comes into play. The more successful a song is, the more its creators wish they had worked out the specifics beforehand. This is why there is no one industry standard for royalty split in remixes. According to the WIPO (World Intellectual Property Organization), many countries lack clear laws regarding remix music.
Article 13 of the TRIPS36 (Agreement on Trade-Related Aspects of Intellectual Property) states that if the remix does not generate profit for the creator and does not harm the rights of the original author, it is considered "amateur creativity. " The remixed music must also not negatively impact the commercial success of the original work. The Berne Convention's Article 1037 permits the creation of derivative works if it complies with "fair practice.
" Some countries have laws specifically for non-commercial user-generated content that could apply to remix music, such as Canada's Copyright Modernization Act38, which outlines conditions under which the remix would not be considered infringement if: (i) it is only for non-commercial use; (ii) the original source is credited; (iii) the individual believes it does not infringe on copyright; and (iv) it does not significantly harm the exploitation of the original work. In the case of Super Cassettes Industries V. Bathla Cassette Industries Pvt Ltd39 the plaintiff, Super Cassettes Industries Ltd. , was in the audio recording industry and sold and distributed pre-recorded audio cassettes and other recordings under the T-Series brand. They
36 Agreement On Trade-Related Aspects Of Intellectual Property Rights,1994, §13, WTO Agreements,
https://www.wto.org/english/docs_e/legal_e/27-trips.pdf. 37Berne Convention for the Protection of Literary and Artistic Works, 1979, §10, WIPO, https://www.wipo.int/wipolex/en/text/283693
38 Copyright Modernization Act, 2012, S.C. 2012, c. 20, Acts of Parliament, Canada,(2012)
39 Super Cassettes Industries v. Bathla Cassette Industries Pvt Ltd,2003 (27) PTC (280) Del
created a version recording of the famous song 'Chalo Dildar Chalo' from the movie 'Pakeezah,' which was obtained by giving notice and paying the required royalties to the original producer, Mahal Pictures, as per Section 52(1)(j)40of the Copyright Act. The plaintiff filed a lawsuit against the defendant for violating their copyright in the version recording. It was held by the court that in essence, since the plaintiff lacked the legal authority over what he claims to be his own unique creation, he cannot object if the defendant adopts the same approach. Initially, it seems that the request for an injunction is baseless and should therefore be rejected. The court's decision was therefore incorrect as it overlooked the fact that the creation of a sound recording results in two types of copyrights.
The first is the musical and literary copyright in the underlying work, and the second is the mechanical copyright in the sound recording itself. Owners of musical and literary copyrights have the exclusive right to reproduce the work in any form, including imitations used in version recordings. However, the rights for a sound recording are limited to producing additional sound recordings of it, selling it, and distributing it to the public. The court appeared to make an error when it applied the sound recording definition of "infringing copy" to the plaintiff's version recording. The plaintiff's version recording could not have qualified as an infringing copy under the Act or as established in the Gramophone case41 since it was not a direct duplicate of the original work. The version recording was not considered a distinct independent sound recording by the court.
Hence, it is not a copyright protected subject matter. It misinterpreted the statutory licensing for musical compositions as an infringement exemption for sound recordings. The court's perspective on version recordings appears to be inconsistent with established practices worldwide, as demonstrated by courts in Australia and the United States. To address this, the Copyright Act of 1957 was amended in 2012 with the repeal of Section 52 (1)(j)42 and its replacement with Section 31C of the Copyright (Amendment) Act 201243. This new clause gives legal authority for the creation of cover versions. A cover version of a literary, dramatic, or musical work can only be created if the owner of the work has already recorded a sound recording with their approval or agreement. In simpler terms, the artist creating the cover
40 The Copyright Act, 1957, §52(1)(j), No. 14, Acts of Parliament, 1957 (India).
41 The Gramophone Company of India Ltd. v. Super Cassette Industries Ltd., 2010 (44) PTC 541 (Del)
42 Supra note 40.
43The Copyright (Amendment) Act, 2012, §31(c), No. 27, Acts of Parliament, 2012 (India). version must obtain permission from the original artist before releasing it. Moreover, the cover artist is not allowed to alter the literary or musical work in any way that has not been previously changed, and can only make changes that are technically necessary for the sound recording, using modern technology to improve the quality of the original work. Additionally, under this section, a cover version can only be created five years after the release date. In conclusion, for a remix song to be considered legal, the person creating the remix must notify the original owner and pay them a royalty fee. However, there are some loopholes in the act that need to be addressed as the demand for copyright protection is increasing in the music industry.
To keep up with changes in the industry, the laws and regulations need to be updated. A clear definition of a remix song should be established and the amount of royalty to be paid to the original artist should be specified to prevent exploitation of the owner's rights. WHAT ARE THE FEASIBLE OPTIONS OF COPYRIGHT LAW UNDER NEW MEDIA WORKS LIKE NETFLIX OR OTHER OTT PLATFORMS?
The internet and other digital forms of networking and publication have made the greatest leap in the past two decades of technical development. India is now the largest internet market after China, with over 566 million users. Nearly half, or 251 million, call India's rural areas home. However, as the usage of new media has grown and related sectors have flourished, so too has piracy, diluting the earnings of copyright owners. Piracy refers to the unlicensed duplication, distribution, and sale of copyrighted works. A rise in online video piracy can be attributed to fans' insatiable need to illegally obtain whole episodes of popular web series and movies. As a result of the massive interest in this type of free content, many different methods have emerged by which online users can receive a stolen copy of the content that rightfully belongs to OTT media companies.
Telegram, a Dubai-based cloud-based instant messaging and voice-over IP service is a prime example; its users frequently share copies of movies and web series that are legally available on over-the-top (OTT) services like Netflix, Amazon Prime Video, Hotstar, and others. This has led to an increase in peer-to-peer piracy, wherein users facilitate the distribution and sharing of pirated digital material among themselves. To put it another way, this increase is bad for these platforms and content producers since it takes away a sizeable chunk of their prospective earnings.
Throughout the years, piracy has increased, but now more than ever it threatens the media and entertainment industries. When a new movie comes out, it usually only takes a few hours for pirate sites to upload copies of it. The movie's production company will suffer tremendous financial losses as a result of this. When consumers know that a pirated copy of a film can be found on the Internet, they are less likely to see it in a theatre, resulting in lower box office receipts and a financial loss for the filmmakers. Some examples of such websites include Tamil rockers, YouTorrent, ROMCOM, F Movies, etc. Netflix, Hotstar, Amazon Prime, ET Times, and The Hindu all pay hefty sums to be official media partners for movies.
Because the movie (or similar film) is available on these pirated websites before it is distributed by these media partners, the number of people who subscribe to the relevant applications is lower than it otherwise would be, resulting in financial loss for the owners of these applications. Despite the existence of copyright laws in the United States, they are insufficient to prevent piracy since, even with copyright protection, internet piracy prevents the rightful owners of an original work from reaping the financial benefits of their creation. None of the terms associated with interactive or online streaming are defined by current copyright law. And they aren't even pulling their weight when it comes to online streamers' responsibilities for collaboration.
Since India does not have any laws that explicitly address the liability of internet service providers for the copyright infringement of content on online streaming platforms, ISPs are often given a safe harbour and even absolved of duty in cases of infringement. If a business doesn't know that its customers are downloading, saving, storing, or referring to copyright material on its website, it can't be held responsible for those actions. Internet service providers have been allowed to profit from pirated materials due to the absence of electronic copyright infringement liability law in India. Once a copyright holder files action, the supplier can claim confusion, and then remove the content.
But the countries are trying their best to curb this crisis by bringing some helpful reform for this online service providers and saving their content from piracy and also taking their cases and problem very seriously . The Copyright Act of 1957 and the Information Technology Act of 2000 both have anti-piracy provisions. Section 14 of the Copyright Act defines copyright and outlines the owner's comprehensive exclusive rights to create copies, reproduce the work, and store it. Copyright infringement, which includes both passive and active acts like storing or making copies without permission, is punishable by fines and jail time under Section 51 of the Act. Sections 65A and 65B were adopted to ensure the upkeep of technical protections and rights management data, respectively, in order to combat copyright infringement in the digital sphere.
The intermediary must exercise caution when carrying out its functions to avoid infringing on anybody else's intellectual property rights, as required under Section 79 of the Information Technology Act, 2000 and Rule 3, sub-rule 4, of the Information Technology (Intermediary Guidelines) Rules, 2011. The intermediary is obligated to warn users against spreading content that could violate someone else's intellectual property, and may cut off the user's access if they are discovered to be infringing. The Indian judicial system uses the John Doe order (also known as the Ashok Kumar order) to bring such people to justice. The case that gave rise to its use, Taj Television and Others v. Rajan Mandal and Others44, was the first to employ it.
If someone is infringing on your intellectual property and you don't know who they are, you can still utilize a John Doe order to issue them a warning and pursue legal action. Telegram was recently ordered by the High Court of Delhi in the case Jagran Prakashan Limited v. Telegram FZ LLC45 to remove certain channels where users were copyrighting content of the plaintiff firm, which distributes a digital e-paper to its subscribers. As a business, Jagran Prakashan Limited offers its clientele digital editions of newspapers. The judge also mandated that Telegram reveal the most basic subscriber data of the channel's users. In the recent case of Raymond Pirtle v. Netflix Inc46. Raymong Pirtle Jr. (Plaintiff) has filed a petition in the U. S. District Court for the Northern District of Georgia against Netflix Inc. of California.
Skater Girl, a Netflix original film, was accused of plagiarizing elements of the independent film Sk8r Girl, directed by Pirtle. In this case, The prerequisites for a successful copyright infringement suit were elucidated. The lack of an effective law makes it difficult to combat copyright infringement on OTT platforms in India. In the event of copyright infringement on OTT platforms, copyright holders in India need to be protected by law. As the
44 Taj Television and Others v. Rajan Mandal and Others [IA NO. 5628/2002 in CS (OS) 1072/2002]
45 Jagran Prakashan Limited v. Telegram FZ LLC CS(COMM) 146/2020 Delhi High Court
46 Raymond Pirtle v. Netflix Inc. (2021) 2:21-cv-08008 California Central Court
popularity of these sites grows, it is more important than ever to ensure that content creators' rights, as well as users' personal information and faith in the sites, are safeguarded. The judgment of this case is still pending before the honourable court. The year 2020 saw the release of the Bollywood film Desert Dolphin. The next year saw the debut of "Sk8r Girl," a film by the plaintiff. Eventually, in January of 2021, Defendant changed the name from "Desert Dolphin" to "Skater Girl" as a result of the allegations. In his complaint, the plaintiff noted that his work is phonetically pronounced as "Skater Girl" by the general public and is written as "Skater GirlTM" with a logo version titled "Sk8r GirlTM " since it is similar to the Netflix film. In the landmark case against the copyright issue raised by the artist named Cariou vs.
Prince47, As an acclaimed appropriation artist, Richard Prince is known for reinterpreting the ideas and styles of other artists to give his own creations fresh resonance. Prince used 41 photos from a book by French photographer Patrick Cariou without permission for an exhibition at the Gagosian Gallery, but he justified his actions by arguing that he had reinterpreted the images in a fair manner. Cariou said that was actually an infringement of copyright, not fair use. In 2011, a judge sided with Cariou, ruling that the alterations made to the photographer's photos did not constitute a material departure from the original work and thus constituted fair use. Nonetheless, the matter is still being appealed, thus a final verdict has not been made as of yet. There have been deep schisms exposed by the case's original verdict in favor of Cariou.
The artwork could be perceived differently by each viewer, which raises problems regarding the artistic purpose and the subjectivity of art, such as "who was this judge to assess whether or not the appropriated artwork had enough significance to be considered fair use? " The verdict on this is currently being deliberated. In UTV v 1337X48, the Court issued a decision to help find and shut down sites that host and provide pirated content (2019). It recommended coming up with future techniques to hurt both the original and mirrored versions of detected websites by implementing "dynamic bans. " The following criteria were established by the court to define a "fraudulent website:" The basic objective of the website:
47 Cariou vs. Prince 714 F.3d 694 (2d Cir. 2013)
48 UTV v 1337X CS(COMM) 724/2017 & I.As. 12269/2017, 12271/2017, 6985/2018, 8949/2018 AND
1) Is to facilitate infringement;
2) the traceability of the owner;
3) the website operator does not respond to the removal notice;
4) the website contains infringement promotion A description of the copyright and
traffic or frequency of visits to the site. The criteria that the Court established for identifying malicious websites were necessary in order to prevent the dynamic injunction from being applied to legitimate online platforms. These platforms fall under the category of intermediaries and are afforded statutory protection in accordance with the Information Technology Act of 2000. Nevertheless, the Indian government published its National Intellectual Rights Policy in 2016, which included a number of specific directives. These policies have the following goals in mind:
1) Raise public knowledge about the benefits of copyright protection on an economic, social,
and cultural level
2) Raise people's consciousness about the many forms of digital piracy.
3) Make the necessary modifications in line with the Cinema Law and other legislation that is
relevant to it.
4) In order to make the requirements of the law more effective, a management and promotion
team for intellectual property should be established. Other measures taken by the government to combat piracy include the following:
1) The Maharashtra Cyber Cell has collaborated with a number of producing companies
in order to fight against piracy.
2) The year 2019 saw the release of a number of E-Commerce Policies, each of which
featured its own one-of-a-kind section on anti-piracy measures.
3) The Ministry of Home Affairs of the Indian government has established a nationwide
cybercrime reporting platform, which allows Indian individuals to lodge complaints regarding incidents of cybercrime. There are two different categories of complaints: the first category includes complaints from women and children, while the second category includes additional cyber issues. Concerns over piracy on the internet fall under the second category. These are the various steps taken by the government and the judiciary to reduce the problem of piracy and safeguard the copyright owners from the exploitation of their content by taking their cases very seriously and addressing new reforms.
But there is a need for some special legislation in this digital content world to save the interests of various platforms and also by bringing some core laws on online streaming and adding this concept in it which will definitely reduce the piracy content and safeguard the new generation of various OTT platforms and other providers.
SUGGESTIONS AND
CONCLUSION
Music is a big part of our life nowadays. With the onset of going online and JIO internet revolution, the music industry has had to revamp itself to synchronize with the digital modern standards of reproduction of songs. Not only this but artists are finding inspirations in new ways whether it being remixes or reverbs and Lo-fi Hits. The most vulnerable in such stages are the artists who are finding it difficult to reproduce their songs and collect their royalties in such a fast-forwarding world due to the over simplified sharing mechanism and giant streaming services. Therefore, it is imperative to update the legislation regarding such copyrighted content whether it being any kind of art originating from cinema works, music, remixes etc.
Some measures that can be incorporated include better piracy control, specific royalty and copyright legislation bodies and boards for music streaming services, an apt streaming services tailored act that specifies each and everything related to them and controlled peer to peer piracy. Along with this a grievance redressal position is needed in each of these countries so that matters relating to public relations and copyright are dealt swiftly. The present problem that persists on the MediaWorks industry is the fragmented legislation in relation to ongoing problems and not one complete act that addresses all such activities. The principle of settlement followed by companies like Spotify and Pandora should be discouraged by all means and a new mechanism which looks into auto-renewal of copyright contracts and AI detectable copyrighted content should be encouraged.
Remixes are more than complex artistic works with derivative lyrics of other artists. It is much more complex than that since with the advancement of sound technology methods; remixes sometimes need even more musical creativity than the original. This happens because it is really difficult for people to create the charm of original and add the remixer’s own twist to it without facing legal consequences. Permission from the owner in this case is an imperative rule that must be followed judiciously(including the label who owns and published the original song). Illegal downloading of the song through pirated means should be strictly discouraged while the copyright boards should maintain “a piracy and consent register” to keep a record of all such permissions. With regards to remixes, what is important is to set a bar or criteria to determine the level of remixing and originality.
The legislation should consult music artists, producers, mixers and directors to form a comprehensive committee which looks into working of all such things.
BIBLIOGRAPHY
ARTICLES a) Hit Netflix Content and The Copyright Infringement That Follows by Baylee Carter b) The Background Score to the Copyright (Amendment) Act, 2012 by Prashant Reddy c) Aditya, Right to Research and Copyright Law: From Photocopying to Shadow Libraries by M. P. , Ram Mohan and Gupta. d) The Expansion of Spotify and International Copyright Law: Impact on Artists by Susanna Korkeakivi e) Music You Love: Harmonizing Music Streaming and International Copyright Law by Annalisa Choy. f) The Copyright (Amendment) Act 2012, A Fair Balance by Shammad Basheer. g) How Strict Are Chinese Copyright Laws by Christopher Beam. h) Slipping Through the Cracks: How Digital Music Streaming Cuts Corners On Artists' Royalty Revenues Globally by Frances Lewis. i) The Decline of Online Piracy: How Markets - Not Enforcement - Drive down Copyright Infringement, by Joao Pedro Quintais & Joost Poort.
j) What the Music Modernization Act Missed, and Why Taylor Swift Has the Answer: Payments in Streaming Companies' Stock Should Be Dispersed among All the Artists at the Label by Anna S. Huffman. k) Copystrikes and Meme Bans: social media and Copyright Protections in the Digital Age, by Angelina Sanchez. BOOKS: l) Iyengar's Commentary on The Copyright Act by T. R. Srinivasa Iyengar. m) Creativity And Copyright: Legal Issues For Screenwriters And Creative Artists by Howard Suber. n) Music Law: How to Run Your Band Business by Richard Stim. o) The Creative Artist's Legal Guide: Copyright, Trademark And Contracts In Film And Digital Media Production by Ellen Seiter. BLOG: p) A critique of the provisions on Copyright Societies under the Copyright Act, 1957 by Bhumesh Verma and Somashish. NEWS ARTICLES: q) Spotify settles the .
6B copyright lawsuit filed by music publisher Wixen, TECH CRUNCH by Sarah Perez r) Tracing the Spotify litigation Journey in India, LEXOLOGY by Sakshar Law Associates CASES:
1. Javed Akhtar v. Magic Mantra Vision, CS (OS) NO. 1743/2005 (Delhi H.C.),
August 21, 2006, (Unreported)
2. Global Music Junction Pvt. Ltd. v. Annapurna Films Pvt. Ltd. and Ors.,
2023/DHC/000064
3. Tips Industries Ltd. v. Wynk Music Ltd, MANU/MH/0862/2019
4. Eight Mile Style, LLC et al v. Spotify USA Inc., 535 F. Supp. 3d 738 (M.D. Tenn.
2021)
5. Entertainment Network (India) Ltd. and Ors. v. Super Cassette Industries Ltd. and
Ors., (2008) 13 SCC 30
6. Super Cassettes Industries v. Bathla Cassette Industries Pvt Ltd,2003 (27) PTC
(280) Del
7. The Gramophone Company of India Ltd. v. Super Cassette Industries Ltd., 2010
(44) PTC 541 (Del)
8. Taj Television and Others v. Rajan Mandal and Others [IA NO. 5628/2002 in CS
(OS) 1072/2002]
9. Jagran Prakashan Limited v. Telegram FZ LLC CS(COMM) 146/2020 Delhi High
Court.
10. Raymond Pirtle v. Netflix Inc. (2021) 2:21-cv-08008 California Central Court
11. Cariou vs. Prince 714 F.3d 694 (2d Cir. 2013)
12. UTV v 1337X CS(COMM) 724/2017 & I.As. 12269/2017, 12271/2017, 6985/2018,
8949/2018 AND 16781/2018 STATUTES:
1. Section 51(1) of Copyright Amendment Act,1957
2. Section 31(d) of Copyright Amendment Act, 1957
3. Section 55 of the Copyright Amendment Act, 1957.
4. Section 52(1)(j) of the Copyright Amendment Act, 1957
5. 17 U.S.C. § 114 (2006 & Supp. 2012)
6. Copyright Modernization Act, 2012, S.C. 2012, c. 20, Acts of Parliament,
Canada,(2012)
7. Section 31(c) of The Copyright (Amendment) Act, 2012
REPORTS:
1. 161st Rajya Sabha Parliamentary Standing Commission Reports, Review of the
Intellectual Property Rights Regime in India. MISCELLANEOUS:
1. Section 13 of Agreement on Trade-Related Aspects Of Intellectual Property
Rights,1994, WTO Agreements.
2. Section 10 of Berne Convention for the Protection of Literary and Artistic Works, 1979,
WIPO.