"The DIscursive Nature of Copyright?"- rethinking Copyright's underpinnings

1. Akshat Agrawal
(Judicial Law Clerk)
Delhi High Court

2. Setting the Narrative
ØHistorically Tracing Copyright – A “Privilege” or a ”Property”
Ø1486- Decree of Venice (2 years monopoly provided to the “printer”/ “publisher”)
ØThe advent of the Printing Press and the wrath of Printers sharing and Printer without
accreditation to the Author.
Ø1545 Venetian Decree- A measure of protection for “authors” against “Publishers” –
foundations of the Euro-Hegelian approach to Copyright
“The audacity and greed for gain of some printers in this city of ours has grown to such an extent
that they permit themselves to print what they like and name the authors without their knowledge,
indeed completely against their wishes. A complaint on this matter has been made to the heads of
this council, with a very strong request for action to put a stop to this."

3. Britain
ØThe Stationers Company and the Licensing of the Press Act, 1662- to printers directly
ØHuge uproar and the “Coffee House” gatherings
ØJohn Locke’s (ironically) memorandum to Edward Clarke, an MP
“I wish you had some care for book buyers, as well, as of the book sellers, and the company of
stationers… most useful books which are extremely dear to scholars, and a monopoly is put into
the hands of ignorant and lazy stationers.
…
That any person or company to have a monopoly for the sole printing of ancient authors is very
unreasonable and injurious to learning”
Ø Repeal of 1694, but the way ahead?
Ø The Stationers find a way out- “Lets use authors as our face” and the tool of licenses/ aka
transferability.

4. Britain
Ø Statute of Anne- The first Copyright Statute introduces in
1709/1710 (no uniformity in this)
Ø To overdo the sentiment in store, against monopoly in the
hands of printers, a system where 14 year rights over literary
productions to “authors” which was to be licensed to Printers-
back to a monopoly over use model.
Ø First glimpse of a utilitarian idea of Copyright- “means” to an
end approach. The monopoly was a limited one for a particular
purpose in mind- one being to incentivize further production,
or rather to ensure that the author doesn’t get de-incentivized?
“An Act for the Encouragement of Learning, by Vesting the Copies of
Printed Books in the Authors or Purchasers of Copies, during the Times
therein mentioned”

5. Affirmative incentives?
ØA very interesting question, which very few have looked at is the phraseology of these
incentives!
ØAre these affirmative in nature? Or limited to a particular purpose?
Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing,
Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings,
without the Consent of the Authors or Proprietors of such Books and Writings, to their very
great Detriment, and too often to the Ruin of them and their Families: For Preventing
therefore such Practices for the future, and for the Encouragement of Learned Men to
Compose and Write useful Books; May it please Your Majesty, that it may be Enacted
Ø Take-aways? – Limited- one which would protect. Ensure that they aren’t de-incentivised
Ø The idea of the “Author genius”

6. Music, but wait! Only literary music?
Ø1777 – Recognition of Music as a “protectable” under the Statute
of Anne.
ØBut a useful caveat – the norm of “fixation” arrives
ØWhat kind of music can be protected? Only one’s that are fixed in
traditional literary notations. Anything else can be appropriated,
used, exploited, and no need of any kind of permissions.
ØInitiation of the idea of cultural imperialism through “property”
like privileges in certain kinds of music, but none in certain
others, making it appropriable, and notated upon by those, who
practiced notations as a norm, and monopolized thereto.
ØSignificant qua Hip-Hop, and Indian Classical Musical traditions,

7. The American Story
ØThe first post-colonial nation to bring in this concept of a “copyright” within its
statutory schema
ØThe first copyright statute- 1790. James Madisson, who introduced American Copyight
Constitutional Clause, harped upon the purpose to be- progress, learning, and other classical
republican virtues such as literacy and informed citizenry . No entitlements, No property.
Always a “means” to an “end”.
ØInterestingly, copyright did not extend to foreign works for around a century. Most of
the focus of authors was on “conducting piracy” for knowledge development,
something which today the US vehemently opposes.
ØInternational works being protected was resisted by the senate for the reason that it
would hinder diffusion of knowledge. Also, the publishing business would take a hit,
given the capitalist foundations of the US.

8. The American Story
ØA publisher in fact, argued in the Senate, and it was accepted that:
“All the riches of English literature are ours. English authorship comes to us as free as the vital air, untaxed,
unhindered, even by the necessity of translation; and the question is, shall we tax it, and thus impose a barrier
to the circulation of intellectual and moral light? Shall we build up a dam, to obstruct the flow of the rivers of
knowledge? (Solberg 1886:251)”
Ø Easy Access was considered as a pre-requisite to knowledge development. Copying was
considered incessant to knowledge development, in a post-colonial state, which was
struggling to form its independent knowledge economy then.
Ø Did not join the Berne Union of 1883, until 1891, when foreign works were finally
recognised.
Ø Music, in traditional notation, was recognised in 1831, inspite of the large black population!

9. Mark Twain and Copyright
Hypocrisy
Ø One of the biggest critics of “limits of copyright”, in
terms of its term, and also a connoisseur of the idea that
“authors” must be rewarded for their “originality” in
production, as against knowledge being freely available for
use, and reuse, Twain initially stated:
The “author” of Adventures of Tom Sawyer(?)

10. Mark Twain and Copyright
Hypocrisy
Ø “The laws of England and America do take away property from the
owner. They select out the people who create the literature of the
land. Americans always talk handsomely about the literature of the
land. Always say what a fine, a great monumental thing a great
literature is. In the midst of their enthusiasm, they turn
around and do what they can to crush it, discourage it,
and put it out of existence. I know that we must have that limit.
But forty-two years is too much of a limit. I do not know why
there should be a limit at all. I am quite unable to guess why
there should be a limit to the possession of the product of a man’s
labor. There is no limit to real estate.

11. Mark Twain and Copyright Hypocrisy
Ø His letter to his friend, Helen Keller, who was being tried for plagiarism, later however shows
something else, qua his earlier claims romanticizing originality:
“Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that ‘plagiarism’ farce! As if there was
much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul — let us go further and
say the substance, the bulk, the actual and valuable material of all human utterances — is plagiarism. For
substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside
sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he
originated them;
When a great orator makes a great speech, you are listening to ten centuries and ten thousand men — but we call
it his speech, and really some exceedingly small portion of it is his. But not enough to signify.”
Ø Significance? Every Author is a User!

12. Back to the Narrative
ØMusic/ Art/ Literary works, not created in a “vacuum”- The value of “use”
Ø18th Century and the Western, liberal-individualistic, idea of “Romantic Authorship”
ØThe idea of the “property” metaphor and the rhetoric associated with it- undervalue the
“public domain” and cultures where borrowing is normal, and is visible on the face of
it. Innovation doesn’t spark out of authorial romance, which assumes that innovation
sprang out of thin air and the great author genius needs no raw materials for creation
ØMaximalism of Entitlements?
ØCultures where borrowing is normative- “Communitarian culture”- India, Japan and the
idea of a family
ØLimited and Natural = Contradictory (transferable/ non-perpetual)

13. India?
ØIn India, Copyright laws were first enacted in India as a colonial measure to further the
incentives for British publishing businesses, without any empirical or psychological
support for the claim that they are required with respect to the indigenous populi – 1876
Act – including protection of foreign works- compare with US and self development?
ØIndian culture was primarily communitarian as discussed – Indian Classical Music as an
example. Aural Culture.
ØIn fact, the prevalent practices until then showed a resistance towards monetary incentives
being consequentially used for more cultural expressions, rather than a requirement of
the same. Colonial Imposition? Knowledge Development? International Agreement
agreed in 1883, without independence? Trade Sanctions and the 301 Senate Report?
ØGandhi found the “idea of making anything out of his writings to be “repugnant,” and
stated, “I have not the heart to copyright my articles.” -Shyamkrishna Balganesh, Gandhi and Copyright
Pragmatism, 101 CALIF. L. REV. 1705, 1729, 1733

14. India?
ØVery Interestingly, as Bently recognizes, the Imperial Copyright Statute was implemented
strategically by the Colonizers in India
ØA right to translation, being vested with the original author/publisher was avoided for
“vernacularizing” of European Knowledge
ØThe idea stemmed from Macaulay’s statement then where he said:
“The whole native literature in India and Arabia is less valuable than a single shelf of a good European
library.”
ØEuropean knowledge was therefore thought to be "needed" both for practical reasons, to
improve the physical well-being and economic prosperity of "India," as well as to enrich the
linguistic, ethical, and cultural resources on which "India" could draw in its efforts to develop
it into a civilised nation.
ØImportantly, it was explicitly recognised that such a right, would be a hindrance to
knowledge development, even though the intention was to spread solely colonial knowledge.

15. Purpose of Copyright
ØAn Act for Encouragement of Learning? Paradox?
ØEngine of Free Expression
ØCopyright is not a divine, inevitable or a natural right, but rather is designed to
“stimulate” activity and “progress” of arts for the “intellectual enrichment” of the
public. (DU Photocopy I)
ØCultural Environmentalism!- James Boyle and Keith Aoki
ØNon-rivalrous and Non-substitutable works- The value of “perspectives” and
aesthetic non-discrimination
ØWhite v. Samsung Elecs- (Federal Court of the 9th Circuit) :
“each new creator building on works of those who came before. Overprotection stifles the very
creative forces; it is supposed to mature”

16. Creative Borrowing as Cultural Practice
Ø The normalcy of “borrowing” in musical practice – For a large part taking someone else’s
expression and developing it into an alternate sound- by reworking- is considered a cultural
norm in music practice- Julie Cohen
Ø Musical Pedagogy involves the study of concept of unity in standards/ aesthetic ones, and
variations thereto – especially improvisational forms like Jazz, Indian (diverse) Classical Music,
which aren’t, notationally fixated, and are termed as “free-flow, momentary exception” –
Imitation and Aural Transmission the core process of learning.
Ø Cultures where borrowing is a normative pre-requisite to cultural expressions- the relativity of
aesthetic expressions. Contextual showcasing as a norm – HIP-HOP and the practice of Music
Sampling

17. Good Composers Borrow and Great Ones Steal
Ø Timeline- 1) Medieval Period (tribute borrowing) –
encouraged to borrow; 2) Renaissance (quoting
melodies as a practice in religious masses – still?) –
valued inventiveness in transformativeness; 3) 1800s-
romantic era and shift towards originality and “genius” –
due to advent of commercialization.
Ø Beethoven was an expert borrower, studying Mozart’s A
major string quartet so intently that his own A major
quartet mimicked Mozart’s structure.
Ø Elvis Presley is stated to have borrowed extensively
from R&B musicians like Chuck Berry, and the Beatles
borrowed extensively from blues convention and, to
some degree, genuinely attempted to contribute to
British blues-rock, according to their own interviews
Often attributed to Igor Stravinsky

18. Tracing
Hip-Hop &
R&B

19. Tracing Hip-Hop and RnB
Ø This part deals with the dissonance of copyright norms and actual cultural practices, initiated
and practiced by the perceived minority groups- whose interests does the law actually care for?
Inter-national law (representative?)
Ø Hip hop producers have relied on the innovative use of existing recordings (most of which are
protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’,
digital sampling, looping and (most recently) mashing up. These are all methods of creating
music and are all integral parts of the hip hop music aesthetic. In fact, collectively these creative
processes are the hallmark of the type of innovation and creativity born out of the hip hop
music tradition – Tomya M. Evans
Ø The tension between copyright and digital sampling, a method used by black creators primarily,
is a broader debate- between two very different perspectives on creativity:
“a print culture that is based on ideals of individual autonomy, commodification and capitalism; and a folk culture
that emphasizes integration, reclamation and contribution to an intertextual, intergenerational discourse”
Ø Role of Copyright? Stifle creativity in marginalised groups? What kind of progress? What kind
of learning?

20. History of the Art
Ø The need for Collective Expression and sharing collective experience as a form of resistance to
slavery and marginalization – BOND OF COLLECTIVE MEMORY
Ø Aural tradition- from West Africa. Maximum circulation growth in 1970-1986 :The Roots
movement- as a way for inner city youth to gather together at parties in their neighborhood
Ø Mainstream exposure with artists like DJ Grandmaster Flash, mixing classic familiar R&B
records and providing an expressive foreground for skillful rappers to demonstrate lyrical
prowess.
Ø Afrika Bambatta- renowned as the founding father of Hip Hop went beyond R&B and started
using diverse background sounds- mixing already known Caribbean Reggae based sounds,
European electro sounds, as also building in the idea of a synthesizer and a drum machine, to
support musical expression. The drum samples were often copied.
Ø Most amount of practice of hip-hop was facilitated by Sampling – often referred to as the
African community’s tapestry
Ø These practices were deeply entrenched and were the instruments of getting the songs to “kick”
by making them recognizable, yet completely distinct.

21. Afrika Bambatta:
https://www.youtube.com/watch?v=9J3lwZjHenA
Ø Afrika Bambaataa performing in the mid-1970s: would play
Rolling Stones records, Aerosmith, Dizzy Gillespie. Jazz records,
rock records….. It didn't matter if you were listening to a white
artist or a black artist, it was any record he could find that had a
beat on. As Bambaataa explains:
“I used to like to catch the people who'd say, "I don't like rock. I
don't like Latin." I'd throw on Mick Jagger -you'd see the blacks
and Spanish just throwing down, dancing crazy. I'd say, "I thought
you said you didn't like rock." They'd say, "Get out of here." I’d
say, "Well, you just danced to the Rolling Stones." "You're kid-
ding!”.

22. The Sample
Ø “The sampler is an instrument that I play” – Rapper RZA from the Wu Tang Clan
Ø Upheaval of use of samples- 1989- only 8 out of top 100 Billboard albums had sample usage. In
1999, the number changed to almost 1/3rd number of albums incorporating use of samples.
Ø Cultural origins and artistic motivation of sampling trace back to the genres of music primarily
practiced in Jamaica and Africa
Ø Sampling was not used for expediency or to pass off another’s creativity as one’s own. On the
contrary, sampling was another way of arranging and performing sounds (musical notations) –
the ‘stock in trade’ of music – in the creative process.- “Do my thing over it” model of music
practice.
Ø Use of Rhythmic blocks as a “skeleton” over which melody/ lyrics were added non-technically
on the basis of how the artist felt, and what in the artist’s opinion worked.
Ø The oral tradition of Africa known as the “tradition of quoting”

23. Copyright Policy’s Dissonance
Ø The decision of the 2nd Circuit District Court of New York District, in the case of Grand Upright Music Ltd.
v. Warner Bros Records – prominently involving two record labels- was the decider of the fate of Sampling
artists for years to come.
Ø The Court in a dispute between rapper Biz Markie, and Gilbert O’ Sulivan’s authored works, where Biz had
sampled Sulivans track “Alone Again (Naturally) – 10 seconds, recognized the sample to be infringing. The
court stated: - “Thou shalt not steal” – equating sampling to theft.
Ø Importance of the metaphor and its usage in the context of a case involving a Black Artist and their
culture v. a White Artist and the romantic conceptions of art – structural racism in IP
Ø Anjali Vats in Color Of Creatorship –
“Imagination and culture is racialized through characteristics of originality and creativity , which label
people of color, and their normative practices, as imitators and lazy thieves, presumptively lacking the
capability of groundbreaking thought, or anything but rote reproduction”…….. “IP is a legal system that
is invested in Euro-American conceptions of creatorship and offers people of color only tools that pit them
against one another, and is structured not to produce racial justice but to shore up protection for whiteness
itself as (intellectual) property.”

24. Copyright Policy’s Dissonance
Ø Grant Upright led to a huge transgression in the practice of sampling in rap works and normalized the
aspect of pre-licensing as being a pre-requisite to use. The samples were often not licensed by Music
Companies, and there the corpus, out of which, an artist could sample considerably reduced (curbing
creative practice), only works with lower/affordable prices, for already minority groups, were capable of
being licensed, and well known works could not easily be sampled, and therefore only obscure-art was to
be chosen from.
Ø Up and coming artists could not pay the exorbitant license fees posed, and either had to not sample, or
starve and pay, or not release new music. But wait! Wasn’t copyright there to promote and stimulate
creativity? Cultural Environmentalism? Or are we back to flawed ideas of “property”, which Locke himself
opposed?
Ø Licensing benefitted music publishers/ record labels, who licensed both the underlying works as also the
sound recordings, and made it another source of income streams qua their transferred monopolies.
Incentive-access paradigm?
Ø Most importantly, this practice undervalued relationality in art produce and labelled samplers as “pirates”
unless they fulfilled the economic transaction. Note: A pirate is a term used in context of criminal law,
not merely economically curable offences!!

25. Years of Appropriation
Ø Siva Vaidyanathan has argued that by sampling portions of classic (and obscure) jazz and funk recordings,
black artists in some ways reclaim a part of their collective African-American identity from the white
establishment that appropriated and exploited it years earlier. In this sense, it may be said that some artists
are simply reclaiming cultural property that was effectively stolen in the first place.
Ø Copyright in the US, allowed for appropriation for years, prior to effectively protecting foreign works.
Ø Further the fixation requirement ensured that Art, belonging to the more vulnerable social groups, who
weren’t represented at all in the legislative corridors, weren’t kept averse to the idea of protection – calling
them “folk” or as in today’s parlance “traditional knowledge”.
Ø Black approaches to rhythm, being a function of the greater oral approach to time, is more difficult to
define in writing. “Capturing the rhythms of African or modem Afro- American music with Western notation is a lot like
trying to capture the sea with a fishnet .... the complexity of this rhythmic approach is in large part due to the value placed on
spontaneity and the inherently communal nature of oral improvisation.”
Ø Social status and copyright law replicated Inequality, and alienated black artists from years of royalty, due to
non-recognition of their “mode” of cultural practice; interestingly yet, the output component was huge,
completely questioning the “incentive” rationale of Copyright Policy

26. Copyright’s Racism
Ø Persistence of white superiority led to cultural devaluation of works by minority artists as a class, and the
Copyright policy depicted this by not protecting them, as also treating them as infringers/ pirates. Further,
because Black artists were not considered acceptable to mainstream (white) audiences, "covers" of black
recordings by white artists become commonplace in the recording industry. – KJ Greene
Ø Further only known productions being appropriated were infringing, and the obscurity and non-visibility
due to the social placement of black artists, barely gave the any accessibility beyond their community. The
capability to showcase and control access, as a privilege, dictated Copyright’s reach, especially in the
absence of a Registration requirement, therefore needing no proof of “originality” or “creatorship” apart
from a recording/ notations. Who could be the first mover?
Ø A law may seem to be facially neutral but within the technicalities, there are operational difficulties which
jeopardize minorities – what can it be in the Indian context? – the distributive effects of Copyright are
highly unequal and favour the white and individualistic- sort of coercing that norm of creation
subconsciously within our societies
Ø Why this narrative? As Anjali Vats recognizes – “Telling legal stories about the personhood of people of
color, in IP terms, pushes back against the foundational racism of copyright laws."

27. Copyright’s Racism
Richa Nagar in Hungry Translations: Relearning the world through Radical
Vulnerability:
“For each one of us, who is afforded the means or tools (social or
legal) to step in with an authority to make knowledge claims,
there are millions of others whose words and knowledges we
stand on, but who have been systemically erased from or made
invisible, on the pages and spaces of formal learning….!”

28. Need for “Discursive” Copyright
Ø Speech as a tool to fight back- alternate perspective -“principle of fixity”
Ø Keith Aoki- “Need for more cultural space for ‘talking back’ at, or through, the pervasive and dense media
languages which constitute much of our social environment.”
Ø Rosemary Coombe: “What meaning does dialogue have when we are bombarded with messages to which we
cannot respond, signs and images whose significations cannot be challenged, and connotations we cannot contest?”
Ø Madhavi Sundar: Rewriting the popular narrative is not only an act of understanding, but also of self
empowerment. Signifyin can also be employed to reverse or undermine pretense or even one’s opinion of one’s own
status.
Ø Resignifications can never be substitutes- they have their individual meanings, individual
recipients, individual markets. A claim to a license merely restricts such meanings, perspectives,
and builds on the “rich getting richer aphorism
Ø Post-modern art barely uses explicit satire or parody or critique- its all the more conceptual. Even
replications convey different meaning, and using copyright law to curb them, is simply ignorant
of its purpose. We need to remember, the law is to ensure one is not de-motivated, and not
“motivated, because the law can never motivate. (See- Dianne Zimmerman and Jessica Sibley)

29. Need for “Discursive” Copyright
Ø Amy Adler in Fair Use and the Future of Art compares these 2
pictures, one which is a picture of the picture and discusses the
non-visual meaning of art. She interprets the second meaning
to give a contextual; message, in relation to the person clicking
it. She reads it from a Feminist Lens, as also from the lens of
author lessness of photography.
Ø The point is even cosmetic changes, or extremely subtle, minor
changes, and sometimes even none at all, can change the
whole design, meaning and feeling of a work, completely
changing its expressive output. She accordingly argues that
contextual reading ought to be done, if at all, when holding a
work as a copy of the other, as it can directly impinge
alternate, discursive and sometimes, artistically subtle, but
critical speech. We, lawyers and them judges, are not art/
music experts after all. Every tonal change could evoke a
different emotion, every singer sings it differently.
Pic by Walter Evans depicting
a woman ravaged by poverty-
art’s power to reveal suffering
Pic by Sherrie Levine,
of the photo

30. Some cases to think of :
Ø Newton v. Diamond
Ø Bridgeport Music v. Dimension Films (in Prof. Vishwas slides) – the difference between Musical
Works and Sound Recordings, qua De-Minimis use, in substantial similarity analysis (6th Circuit)
“Take a license or don’t sample’
Ø Cf : VMG Salsoul v. Ciccone – vehement disagreement qua scope of derivative right protection as also
no difference contemplated in legislative debates
Ø Cf: Saregama India Ltd. v. Mosley, 687 F.Supp.2d 1325
Ø In the Indian Context: - India TV v. Yash Raj Films (Division Bench- Delhi HC) –Cf. Bridgeport
Ø Can investment get higher protection that original creation?
Ø Difference in stand India and the US qua Derivative Works
Ø Cariou v. Prince (need not comment for transformativeness) v. Warholl Foundation v. Goldsmith
(Derivative works v. Transformative Use). Need to look at - market as a whole, not just licensing market
qua incentive based revenue for corporations, at the cost of speech, especially minority speech
Ø Argument: Interpret Derivative Rights as Adaptations, and not beyond (in light of Seltzer v. Sunbrook)

31. Gray v. Perry (C.D. Cal - 16/3/2020)
Songs in question- Joyful Noise v. Dark Horse
“Many if not most of the elements that appear in popular music are
not individually protectable.”
“Music, perhaps more than any other work of art, borrows, and must
necessarily borrow, and use much which was well known and used
before.”
“A relatively common 8-note combination of unprotected elements that
happens to be played in a timbre common to a particular genre of
music cannot be so original as to warrant copyright protection.”
“A chord “progression” is not protectable”

32. THANK
YOU!