The copyright conundrum in Carnatic music

Musician V. Sankarnarayanan performs at the Sri Parthasarthy Swamy Sabha in Chennai.
| Photo Credit: The Hindu

During the recent Margazhi season or music season in Chennai, rasikas (connoisseurs) hopped from concert to concert. While tuning into the music, they also had to keep in mind copyright law as the sabhas (performance venues) forbade them from unauthorised recording. Copyright law has seldom been at the forefront of discussion in the Carnatic music sphere as there is a general belief that copyright law does not apply to it. We need to revisit this view.

In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association (1977), Justice V.R. Krishna Iyer asked whether music meant only the composition of a piece or extended to the soulful tune, voice, and rendering of the piece. This remains unanswered in Parliament. Apart from being a metaphysical question, what is music is also a legal question.

The idea of music

Copyright law across the world defines music as a melody, i.e., a composition which is reduced to print. The idea that music is only a composition stems from a western classical understanding of music. The lawmakers of the Indian Copyright Act, 1914, failed to understand Indian music before enacting the law. The same colonial understanding followed even in the legislation enacted in 1957. This excludes several unique factors of Indian classical music from the realm of copyright law. It is pertinent to ask: should law follow music or should music follow the law?

A song is born after the synchronised efforts of a composer, lyricist, singers, and other performers. The composer and the lyricist get protection over their respective creations for their lifetime and then 60 more years. When a song is recorded onto a medium, there is a separate right over the recording. Called ‘mechanical right’, this is granted to the one who records the song, for 60 years, to commercially exploit it.

Performers’ right enables the singer and other musicians to forbid anyone from recording the song. Further, the law enables the performer to be eligible to claim royalty from the streaming of their performances or the sale of their music. Though this right is available to the singer and the accompanists theoretically, they do not enjoy the same in its true sense, in a concert space. It is only in prominent sabhas that video/audio recording of the performance is prohibited; this is not a norm everywhere. Several performances of notable singers are posted by third parties on YouTube and Spotify, which is a violation of the Copyright Act and robs the musicians of the chances to monetise their rendering. Any recording that is done without consent is a violation of the performers’ right; it is even a violation if the sabha does this without the informed consent of the performers. The licence regime within a Carnatic concert is complex even for music that is in the copyright domain.

Since most of the songs that are performed are in the public domain, the form of music has also remained outside the realm of copyright. The works of Tyagaraja Swami, Shyama Shastri, Muddusvami Dikshitar, Purandara Dasa, and Gopala Krishna Bharathiar, for instance, are in the public domain for anyone to perform today, as they were all created even before the inception of the concept of copyright. Whether the additions and improvisations made by the musicians also become a part of the public domain along with the song and whether a musician who improvises a song has any right over such improvisations remain unanswered questions.

When any performer learns these songs from their guru, they inherit their guru’s imagination packaged with the original rendition. The learner also has the scope to add their own touch to the song. They have their own interpretation and perform the song with improvisations which may not have been a part of the original composition. They may even sing the same song in a different raga from what was originally envisioned. For instance, several songs of Gopala Krishna Bharathi are today not sung in the ragas that Bharathi had composed. Does the musical imagination to interpret the song in a different raga become “creativity” under copyright?

Changing the law

The improvisation made by a performer on a stage could be spontaneous and it could be a response to the interest displayed by the audience. The choice of accompanying music could also result in an altogether different version of the song. In several cases, the performers themselves may not be in a position to replicate it exactly in the same way for the second time. The improvisation made by the performer is neglected and there is no scope to grant protection for it under the Copyright Act.

While the compositions of Purandara Dasa were conventionally sung in ragas associated with Carnatic music, Pandit Bhimsen Joshi took it upon himself to introduce the wide collection of Purandara Dasa’s compositions to a myriad variety of Hindustani ragas. The song Eppo Varuvaro cannot be imagined without the soulful touch of Madurai Mani Iyer; he has inspired generations of singers to perform the song in a particular way. Does he not own his unique additions? It remains unprotected under the copyright laws.

Musicians should have the right to own their soulful additions to a song and also to commercially exploit their performance. The flow of royalty from streaming should be strengthened. Currently, music follows the law. Should the law not be changed to protect the rights of Carnatic musicians in letter and spirit?

Sundar Athreya H., Assistant Professor of Law, KIIT School of Law; N.S. Amogh Simha, Advocate practising at the Madras High Court