Sensuous Similarity

Copyright v. Right to Copy
Indian Express, 16th April 2008

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
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 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
idea?

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, 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.

Vasuki Nesiah

Vasuki Nesiah is Director of International Affairs and Lecturer in International Relations at Brown University. Prior to joining Brown, Nesiah was Senior Associate and Head of the Gender Program at the International Center for Transitional Justice, an international organization engaged with human rights law and policy. Nesiah has also been Adjunct Associate Professor at the School of International and Public Affairs (SIPA) at Columbia University for the last three years where she has been teaching on issues related to identity, rights and conflict. Nesiah completed her doctorate in public international law at Harvard Law School. She has published and lectured in international and comparative law, feminist theory, law and development, postcolonial studies, constitutionalism, and governance in plural societies. She is currently working on a manuscript re. the post-conflict industry.