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  • Ipsa Raj

HOW ETHICAL ARE REMAKES/REMIXES

Updated: Jun 4


Introduction


The ongoing crisis is difficult to cope up. With colleges, schools, offices and almost every other place shut, people adapt to different methods to deal with the lockdown. Music has played an important role in surviving the situation. In this musical journey, a lot of us must have come across music, lyrics or notes which must have seemed familiar yet different to the ears. The act of remixing is defined as using a machine or computer to change or improve the different parts of an existing music recording to make a new recording[1], but the question which arises, is whether remixing or remaking content is legal, and till which extent is it acceptable. This concern, comes under the domain of Copyrights Law, which is a subsection of the Intellectual Property Law.


Legal Perspective


The national copyright laws of most countries around the world do not effectively address these challenges and leave many important questions unanswered. For example:

· Are remixes legal under copyright law?

· If so, should the “remixed work” benefit from standard copyright protection?

· Should it qualify as a derivative work, in the same way as an adaptation or a translation as defined under Article 2(3) of the Berne Convention on the Protection of Literary and Artistic Works? Should there be a right to remuneration for the original author?

· Should a distinction be made if the remixed work is used for non-commercial purposes?

Many within the cultural industries believe that any unauthorized extract taken from a pre-existing work constitutes copyright infringement. Strictly speaking, they are right. Remixes do violate the copyright in a pre-existing work, insofar as the act of creating a second work that contains elements of an original work violates both the right of reproduction (Article 9 of the Berne Convention) and the right of communication to the public (Article 8 of the WIPO Copyright Treaty) of the original author.

The moral rights of the original author also come into play. Under Article 6 bis of the Berne Convention, “the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification, which would be prejudicial to his honour or reputation”. When a given song is remixed in a way that strongly decontextualizes its meaning, the author of the original work can claim a violation of moral rights.[2]

There are websites available which claim to make songs plagiarism free by providing them licenses and ready to use for remixing and remaking. This is possible only because of the definitions of plagiarism and ownership varies from country to country, which allows people to find loopholes and vandalise original work in the name of remixing or remaking them. Canada is one of a few countries, if not the only one, to have introduced into its copyright law a new exception for non-commercial user-generated content. Article 29 of Canada’s Copyright Modernization Act (2012) states that there is no infringement if: (i) the use is done solely for non-commercial purpose; (ii) the original source is mentioned; (iii) the individual has reasonable ground to believe that he or she is not infringing copyright; and (iv) the remix does not have a “substantial adverse effect” on the exploitation of the existing work.



Exceptions


This is obviously a risky way to interpret this enormous grey area, because no self-respecting musician makes music to remain anonymous.

· If the song is in public domain – both masters and publishing

· Fair use: if you’re using the song for educational/ research purposes, reporting as news, political or social commentary or satire/ parody.

· If the song is available under a Creative Commons license[3]

How do people get away by remixing songs

To legally make a remix from copyrighted music, you need to:

  1. Buy a copy of the song(s). Pirated music is still illegal despite how easily it is to obtain.

  2. Obtain permission from the copyright holder. Each piece of recorded music has at least two copyrights: one for the song and one for the master recording. You need permission from both copyright holders to legally remix a copyrighted song.

  3. Make a record of permission. Even if it's just an email, you need some sort of written record that the copyright holder has allowed you to make a remix of his or her song.[4]

Amateurs who want to just mix songs at home for their own personal use aren't likely to run into trouble if they fail to obtain permission, unless there's money involved. But there is no mention of affirmation by just one artist related to the artwork or all of them. The conflict arises when other artists don’t agree for the remake or the remix but nobody pays heed to it. Mere ownership can legally buy the rights but there are yet no laws for the moral wrong done to others.

Under the Indian law, where the owner grants a licence of a remake of a cinematograph film to a third party, such a remake results in the creation of new work by the licensee and the copyright on such new work shall vest with the licensee unless there is a contact to the contrary. If the owner of the original work wants to own the copyright in the remake, these rights shall have to be assigned by the licensee to the original owner by way of explicit contract. In the case of a remake, if the original owner and the licensee collaborate with each other and with a common design produce a new work, then they will be regarded as joint authors and/or co-producers of the new work. With the recent controversies of the remakes of numerous movies coming to the forefront, it is but a matter of time that procuring appropriate licences for making of a remake shall be a matter of practice.[5]


Artist’s Rights


Artists and authors are free to claim their work in case the abovesaid measures are not taken. They can also claim damages, in respect of distortion, mutilation, modification, or other work, which was not in terms of their agreement of taking over the ownership.[6]


Conclusion


The human tendency is to discard the old to gain the new, but this should not always be practiced. People tend to forget that it takes way more effort than expected to design an artwork to make it rememberable for years. They are said to be iconic for a reason. Those artworks are adequate in their original format and need not be changed in to “fit in today’s date” or to be “relatable”, and even if remade, it loses its soul, the very essence which made the artwork good enough to be remade again. Remixing or remaking is also a sign of lack of creativity, in my opinion.

With plethora of remakes and remixes coming every now and then, we, as audiences should question ourselves, do we really need such work which destroys the core of the original instead of bringing nostalgia?

[1] https://dictionary.cambridge.org/ [2] https://www.wipo.int/wipo_magazine/ [3] http://theindianmusicdiaries.com/ [4] https://www.findlaw.com [5] https://www.livemint.com/ [6] Remix and Copyright; Journal of Intellectual Property Rights, vol 5

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