Copyright v. The Right to Copy

Sensuous Similarities
Lawrence Liang
16th April 2008
Indian Express

It would be difficult not to be enthusiastic about the recent two crore settlement between the Roshans and composer Ram Sampath, who alleged that they had violated his copyright by using his song in their film Krrazzy 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’ which serves as an important precedent for future cases. Ram Sampath has himself gone on record to say that everyone in the creative filed should get their hands on the 1957 Indian Copyright Act.

Encouraged by Ram Sampath’s success, we can therefore expect many more such 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 relies 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 are 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 copying.

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 Chadhry’s Dil Tadap Tadap ke from Madhumati (See www.itwofs.com for a fascinating history of music plagiarism in India). 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 US 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 Chiffon’s “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 of where one draws the lie between inspiration and mala fide copying, a line better guarded by the ethics of aesthetics 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 protect 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 in a different key constitute a new expression of the same idea?

We need to recognize 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 that people leant 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 that Helen Keller learnt language and read was very different for an ordinary reader, and she learnt not from sound and sight but from touch.

In her defense she said “Sometimes I think I ought to stop writing altogether, since I cannot tell surely which of my ideas are borrowed feather, 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, lets 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, that have touched us, 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.