Copyright

Creative Commons, Independent Music and TempoStand.com


As with most new internet start-ups, the story of http://www.tempostand.com/, too, begins with a bunch of young techies who have recently graduated from the Dirubhai Ambani Institute of Information and Communication Technology (DAIICT). What’s heartening, from the viewpoint of SpicyIP, is that here is an Indian business venture which has skillfully used alternative IP regimes as central to its business model and in the process is providing a unique service to the world of Indian music (Just as there is no one definition of Indianess there is no one definition of Indian music and true to its word the website hosts several different genres of music!).
Envisaged as an online music portal, what distinguishes Tempostand.com from other music sharing websites is the fact that it stresses on contributions of only original (non-label) music of any genre which in turn can be downloaded by anybody for free and can be remixed and loaded onto the website again to be shared again.
So how do they do this under the statutory copyright regime? The answer is simple, they do not do this under the statutory copyright regime since the statutory copyright regime is quite rigid and it would involve individual negotiations (for licensing) with each band loading its music onto the website. Instead Tempostand has very strategically adopted the Creative Commons – Attribution-Share Alike 2.5 license. Under this license whosoever agrees to put up their music on the website, automatically, consents to the terms of the license which includes the right of users to download and share the music for free. It also allows them to remix the music. The license however does prescribe certain conditions such as attribution i.e. the work has to be attributed to the author in the manner specified by him. The second condition is that the license insists on Share Alike i.e. whoever has downloaded the music and transformed it will have to share the resulting music on the same terms as this license. The aim is to ensure continuing creative freedom amongst TempoStand’s music community while ensuring that the original composer gets his due credit. The website hopes to derive revenue from advertising which it then proposes to share with the bands contributing to the website. This business model is already quite popular in Europe with websites such as Jamendo providing a similar service. Given the flexibility of the Creative Commons license and the ease of sharing music on TempoStand.com, I’m sure we’ll hear some very exciting variations of non-label music from this website in the coming months. The Creative Commons license may therefore be contributing to a very rich cultural experience for all of us.
Having said all of the above it would indeed be interesting to see how exactly Indian courts will decide on a copyright infringement case involving a Creative Commons license. Let’s just presume that someone does download the music, remixes it and then starts selling it, will he be in violation of the law? The CC-SA 2.5 license makes it mandatory for him to share the music on similar terms as he downloaded it but what then of his statutory rights under the Copyright Act, 1957? If someone has substantially altered the original music by putting in his own work then in that case can he claim a copyright to the new work using his statutory rights under the Copyright Act? How exactly will the Indian Courts hold the Creative Commons License vis-à-vis the Copyright Act? Will it be over-riding the Copyright Act or not? As usual I have no answers and look forward to hearing your views. For more on Creative Commons please click here or read this guest column at SpicyIP.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

8 comments.

  1. AvatarSumathi Chandrashekaran

    Prashant: excellent post. Creative Commons is an exciting concept, and it’s great to see a home-grown open-source music portal such as Tempostand.

    In re your observations, while I am not sure of how the CC-SA license holds up against the Copyright Act, a cursory read of the license itself suggests that in the event of such a claim as you suggest, the original licensor could take defence under the Indian Contract Act, if I interpret sec. 8(h) correctly.

    The section reads:
    “This agreement shall be deemed to be a contract made in India and shall be construed and applied in all respects in accordance with Indian law and the parties hereto submit and agree to the jurisdiction of the Indian courts.”

    What do you think?

    Some other comments that might not be entirely relevant to your post, but anyhow…:

    1. If artists wish to protect their pieces in the original, then CC allows for a ‘No-derivative-works’ variant on the licence, which is not offered by Tempostand.

    2. It is interesting that Tempostand should restrict itself to CC-SA, while Jamendo, the European site with which you draw a parallel, should open itself up to the whole gamut of CC-licences. You mention strategic reasons. Could you elaborate?

    3. I think the protection of musical styles unique to the Indian subcontinent, specifically classical/ghazals, etc., might be a bit iffy under such a license. For example, I randomly picked one piece (‘tanha tanha’) on the site, which turned out to be an urdu ghazal/thumri written by US-based Farhat Shahzad, presumably specially for Mehdi Hasan. Rarely is the composer, lyricist and the performer the same person, in any form of music. In context of this case, when the website demands ‘originality’, I suspect they might need to qualify the term for their users.

    This might be slightly different in the context of performing pieces that are out of copyright, such as a Ghalib ghazal or a Tyagaraja kriti!

    Reply
  2. AvatarPrashant Reddy

    Hey Sumathi,

    I spoke to the tempostand guys about why they have not offered all the CC licenses etc. They said that they do intend to broaden the scope of licenses etc. in the due course of time. They’re a pretty young website and still need to deal with the logistics of the website first before getting into anything else.

    About the copyright issue and the contract: I’m really weak on contract law 🙁 but won’t the CC license operate more as an agreement rather than a contract because there is no valid consideration between the two parties. Or is there some jazz on promissory estoppel?

    Moreover I was wondering what would happen if I took a small portion of tempostand’s music and incorporated into my own composition. Will I still be under the CC license? Or can I term the borrowing as fair use under the copyright act and exercise my individual copyright over the new mixed composition?

    Anyway I’m sounding quite confused I think I better think this up in more detail before I shoot my mouth off.

    Reply
  3. Avatargaurav

    Hi Prashant,

    Thank You for the review!

    To answer some of the questions raised here.

    1.Using one CC license instead of giving a choice has more to do with the usability of the site than following any particular ideology. In our market surveys we realized
    that an average Indian user gets
    uncomfortable with terms like copyrights, licensing etc.Bombarding them with different licenses would confuse them
    further.So to keep things simple we have used just once license for now. We will be adopting other CC licenses in due course of time. But in very planned manner.

    2. For musical styles of the Indian sub continent i believe its very difficult to classify something as original on the basis of composition etc. For eg if Kula Shaker comes out with a semi-westernized version of Govind Bolo will that not be called original? Or if someone uses an old sufi poem in their composition is it not an original work? We think that in these cases originality is more a function of the artist’s style than his compositions.
    However, your point is well taken and we will come out with a more specific definition of originality in this context.

    One of our major tasks is to spread the CC philosophy amongst the artists in India.Would love to get some ideas!

    Regards,
    Gaurav Dobhal,
    TempoStand.

    Reply
  4. AvatarSumathi Chandrashekaran

    Prashant: thanks for the follow-up. 🙂

    About CC vs Copyright vs Contract: The way I see things is that copyright still exists in the creation; the difference lies in the terms of use, which is determined by the license you choose to make the creation available. I think the problem probably lies in lack of precedent.

    A very basic search threw this up: a 2006 case in a Dutch court, where a tabloid had *borrowed* photos put up online by an individual, Adam Curry, without his permission. The photos were licensed under the Attribution-NonCommercial-ShareAlike license. In principle, the decision was in favour of the licensor, but the tabloid was let off only with a warning, and the threat of future fines if found infringing again. The court found the tabloid guilty of not having examined the terms of the license carefully enough, and effectively placed onus of rightful use under the license on the entity accessing the creation.

    In re consideration: I would argue there *is* valid consideration under the creative commons. It is *not* an outright gratuitous offer to be deemed a gift and therefore a null pact. At the very least, depending on the license used, there is the requirement of attribution. And denying that attribution, while appropriating unilateral rights of the “new’ creation, could be deemed a loss to the original creator and a profit to the other.

    Promissory estoppel, IMO, would not come into play unless there was evidence of such an agreement in the first place. The terms of the license *as is* do not refer to any such agreement.

    Re taking small portion of other music: I am guessing that that could be defended as fair use, depending on the duration of the clip. Again, since there appears to be no precedent, all this is mere speculation.

    Phew! Of course this is amateur analysis, and we should get in someone who’s an expert on this to comment. :p

    Reply
  5. AvatarSumathi Chandrashekaran

    Gaurav: great to see Tempostand’s response to the post/issues/etc. A few further comments:

    1. I look forward to seeing how the website proceeds with the provision of other CC licenses. My reason for bringing up the earlier comment was based on Prashant’s speculation on derivative works, and the explicit availability of a NoDerivatives CC license which has not been made available by the site. Burdening the users with a lot of legalese is reasonable enough!

    2. My reference was not as much to the melodic composition as to the lyrical composition. (IMO the melodic part can be very conveniently re-packaged if the raga is changed or if some unique gamaks/embellishments are added, therefore deeming it an *original* performance).

    In the case that I mentioned, of Farhat Shahzad’s poetry, the lyrics are still within copyright since the poet is still alive. Now I don’t know what terms of use he might have made them available in, but as far as I can tell, they were written specially for Mehdi Hasan (they have a legendary association). As a result, any use of the poem would require permission from either one or the other, depending on who holds the copyright (e.g., it could be that MH has bought the copyright to the lyrics). (A popularly cited example in such a context is that of the “Happy Birthday” song).

    Most certainly, this would not apply in the case of a Mir Taqi Mir ghazal or a thumri by Lalan, or a kriti by Syama Sastri, or indeed an old Sufi poem (depends on how old it is?) for obvious copyright reasons. I am not ratifying the copyright principle here on new-er songs/poems, but merely stating what seems to me to be the principle in play.

    Which is why I suggested that the site should specify what it means by original – is it merely the act of performance? In which case, every piece would be original. Or is it in the (re)arrangement of the music? Or in the lyrics? Or all of them?

    On an endnote, though, personally, I am very enthusiastic about the growing popularity of the remix culture over the permission culture! And it’s great to see Indians foray into this seriously.

    Reply
  6. Avatarsiddharth

    Noisy Planet is an online portal for independent musicians, artists and bands. Founded by indie artists, songwriters, and studio owners in 2007, Noisy Planet is dedicated to creating the easiest way for indie artists and bands to promote and sell their music. Our simple interface makes it easy for artists to connect with new and existing fans, as well as industry contacts, fellow musicians, and resource providers. Every Noisy Planet artist gets dedicated online space along with promotional tools and access to our Artist Control Room where they will find the goods and services they need most to manage their music careers – regardless of their experience level or goals.
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    Reply
  7. Avatarsid

    Noisy Planet is an online portal for independent musicians, artists and bands. Founded by indie artists, songwriters, and studio owners in 2007, Noisy Planet is dedicated to creating the easiest way for indie artists and bands to promote and sell their music. Our simple interface makes it easy for artists to connect with new and existing fans, as well as industry contacts, fellow musicians, and resource providers. Every Noisy Planet artist gets dedicated online space along with promotional tools and access to our Artist Control Room where they will find the goods and services they need most to manage their music careers – regardless of their experience level or goals.
    We help our artists set up their profiles with artist photos and biographies for them. Noisy Planet’s mission is to help Indie artists thrive in every corner of the world. Noisy Planet helps its artists to host MP3’s with paid downloads, MP3 file conversion and quarterly artist royalties.

    Noisy Planet, the “Best Music Business Website” (8th Annual Independent Music Awards, USA) is now looking for talent in India. Be a part of the new revolution in Indie music in India.

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    Or contact:
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    Reply

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