Frederick Noronha [फ़रेदरिक नोरोनया] on Fri, 2 May 2008 15:30:56 +0200 (CEST)

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<nettime> INDIA-DEBATE: Copyright vs the right to copy

  Copyright vs the right to copy

  Posted online: Wednesday, April 16, 2008 at 0005 hrs IST

  Lawrence Liang
  It may be difficult not to be enthusiastic about the recent Rs 2 crore
  settlement between the Roshans and composer Ram Sampath, who alleged
  that they had violated his copyright by using his song in their film
  Krazzy 4. It has all the trappings of a fairy tale suit in which the
  small creator wins against the might of the entertainment giants. It
  perhaps even reflects the original intent of copyright, which has
  otherwise served mainly the interests of large media corporations
  against small artists and creators. A number of commentators have
  hailed the suit and the settlement as a "landmark decision" that
  serves as an important precedent for future cases. Ram Sampath has
  himself gone on record saying that everyone in the creative field
  should get their hands on the 1957 Indian Copyright Act.

  Encouraged by Ram Sampath's success, we can therefore expect many more
  copyright claims in the field of music and creativity. While Ram
  Sampath's case may have been a clear case of unfair use, I would argue
  that we should be a little cautious in celebrating it as a landmark
  decision or as a positive step as far as creativity is concerned. The
  language of the case and the reportage around it rely very heavily on
  the language of theft, property and damages for infringement of
  copyright and plagiarism in music. This rather hasty leap of faith to
  stricter enforcement of music copyright does not seem to find too much
  support in the history of music itself. While there was surely a
  violation of propriety in the Ram Sampath case, the important question
  that emerges is the impact of thinking of creativity only in terms of
  property. The history of copying, appropriation and plagiarism is in
  fact central to the history of various forms of cultural production,
  including music. We should therefore be a little cautious when we
  celebrate this case for the quick remedy it provided to an act of

  The act of copying has been central to the ways in which culture has
  flowed through various parts of the world, transcending the
  limitations set by space and time. Thus a Polish folk song, "Szla
  dzieweczka do gajeczka", becomes a part of Indian popular
  consciousness through its adaptation as Salil Chaudhury's "Dil Tadap
  Tadap Ke" from Madhumati. Secondly, the creation of music has always
  relied on adaptations, influences and inspirations, whether conscious
  or unconscious. It would be unfortunate if as a result of aggressive
  copyright suits, we reach a situation like the United States where
  even subconscious copying is held to be infringement. In a case
  brought by a band, The Chiffons, against former Beatle George
  Harrison, the court held that Harrison's "My Sweet Lord" was in
  infringement of The Chiffons' "He's so fine", even though the judge
  believed that Harrison did not intentionally copy the song and had
  only been inspired by it subconsciously.

  The history of creativity has been marked with a certain generosity in
  drawing the line between inspiration and mala fide copying, a line
  better guarded by the ethics of aesthetic practices than by strict
  penal laws of property. Music scholars have argued, for instance, that
  hip-hop, which relies on sampling existing tunes, has become less
  exciting as a result of the chilling effect that copyright has had on
  the ability to sample. Music has always posed a challenge to
  traditional ideas of copyright, and while it is well known that
  copyright merely protects ideas and not expressions, music complicates
  the idea-expression distinction further. Noted copyright scholar Siva
  Vaidyanathan asks: Is the six-string note of "Happy Birthday To You"
  an idea or an expression? Would playing the same note at different
  tempos constitute a new expression of the same idea? Would playing it
  differently on a different key constitute a new expression of the same

  We need to recognise that different forms of cultural creations have a
  different relation to the act of copying. Rajesh Mehar in his history
  of Indian rock music has shown us that the act of copying was central
  to the way people learnt music, and it may be a better idea to rethink
  the one-size-fits-all approach that informs copyright law.

  At different points in her life, Helen Keller was accused of
  plagiarism. What people ignored is that the way Helen Keller learnt
  language and read was very different from an ordinary reader's, and
  she learnt not from sound and sight but from touch.

  In her defence she said, "Sometimes I think I ought to stop writing
  altogether, since I cannot tell surely which of my ideas are borrowed
  feathers, except for those which I gather from books in raised print."

  In our enthusiasm to protect the creator and ensure that he gets his
  just rewards, let's not forget that the sense of touch is not limited
  to the hand, but extends to our eyes and ears. It is only natural that
  when we create something, it will be influenced by things we have
  read, heard or seen, even if they are not our property. Walter
  Benjamin describes this form of mimicry as a form of learning as a
  "sensuous similarity", a right to copy, which should be as jealously
  guarded as copyright.

  The writer, a lawyer and cultural theorist, co-founded the Alternative
  Law Forum in Bangalore

  Earlier posted by Prashant Iyengar on:

  commons-law mailing list

 Frederick FN Noronha * Independent Journalist * Phone +91-832-2409490
 Cell +91-9970157402 (sometimes out of range)
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