Author: Keshav Narnolia
In the last post it was argued that folklores in India must be included within the protection of the IP regime. Various examples were cited of songs from the traditional folklore which were used by the bollywood film industry without duly crediting the original author(s) and more shamelessly defending a copied work as their own original creation. Taking the argument ahead, the current case and controversy surrounding the song ‘genda phool‘ will help us to analyse the problem with the new age of remix in a greater depth.
The Constroversy
On 26th March 2020, a bollywood rap singer who goes by the name Badshah relased a video of his new song ‘genda phool’ on You Tube. The song has some parts of it copied from an old Bengali song, “Boroloker biti lo”, written by veteran artiste Ratan Kahar in the 1970s. The song has been an intrinsic part of bengali folklore. Upon the relase of ‘genda phool‘, the video gave credits to “bengali folklore”. However, it didnot give any credits to Ratan Kahar, its author who is alive in grim poverty, neither was his permission sought by Badshah before using his work. This outraged many people who related to the bengali folklore. Stirring up the debate, people started slamming Badshah for plagarising works of other artists.
Two major problems which people have with the new song are: (1) It is plagarised and does not credit its originial creator; (2) The new song has altered the meaning of the original song and in a way mutilated it. Almost the entire discussion was lopsided unequivocally against Badshah for plagarising the work of Ratan Kahar. However whats interesting from the perspective of Intellectual Property is the second contention where the argument advanced by some people were, that such remixes (by giving due credit to its original creator) bring in to limelight the lost treasure of folklore with a touch of current times for the “new” generation. Well this argument could quite clearly be evidenced from the fact that the original composer of the song is living in poverty in a small town of Birbhum district of West Bengal, while the plagarist earn the riches with more than 250 million views on YouTube. This points us to discuss what are the remedies when: (1) A work of traditional art or folklore is put to another context and (2) Such work is mutilated subsequently. Mr. Kahar has already made headlines by coming front and asking monetary help from Badshah owing to the use of his work by the latter. The story of Mr. Kahar, shows the plight of the “folklores” in India which today can only lend a mercy bowl towards the gliterry life of cinema for its recognition.
Can the Song be Defended Legally?
This brings us to analyse, does Badshah has a claim to defend his rendition “genda phool“? Well the most basic defense to an infringement of copyright is ‘fair use’. Fair Use is dealt with u/s 52 of The Copyright Act, 1957. However, this protection cannot be accorded to Badshah as for the defense of fair-use the work must not be of a commercial nature. However, here the work is totally commercial. Therefore, statutorily there is no way that Badshah could defend his rendition. In the present case, neither did he defend. He accepted his fallibility to credit Mr. Kahar and paid him a sum of Rupees 5 Lakhs. But this and such other cases ask us to draw serious attention towards a rotten society where the works of traditional art and folklore has been carelessly used by the “new” generation, thereby altering the meaning of the original work or creating an apprehension of such altered meaning being attributed to the original work.
The Problem with Remixes
Such careless use of traditional art and folklore if done without the consent of the author (if alive) or scholars/societies who have an expertise and deal with that subject matter (if dead), such works are legible to be penalised. In the present case, the original song has been written from the point of view of a mother who becomes a prostitute when her lover (who is an effluent man) leaves her with a child in her womb. When the child grows, her mother say that I will put a red marigold flower around your braid of hair, like daughters of effluent men put. Now this emotion of motherhood has been seductively eroticized by Badshah which makes people who have not listened to the original song to speculate that the original song also have to so something with the same erotic emotion. This in my view is an extreme form of mutilation of one’s work. Since in this case the living author of the folksong does not have enough money to buy his son a harmonium, it is highly unusual of him to sue Badshah and others associated with the new song. Copyright laws in India gives moral rights to the author u/s 57 which stays with the author even when he is dead. It cannot be assigned by a contract. These moral rights are of two types: (1) Right of Paternity: It empowers the orginal author with the right to claim authorship in works; (2) Right to Integrity: It empowers the original author to object to any distortion, mutilation or other modification in relation to work which would be prejudicial to the author’s honour and reputation. Remixes like these often distorts the original meaning of the song thus hampering the moral rights. But in majority of cases if the author is alive, he/she is financially weak and if the author is dead, there is no one to care about plagarism of work, leave distortions, mutilations.
Can it be Cured?
Therefore it is the need of the hour that the practise of such acts of distortions must be cured. People have started to run out of ideas, and remixes : (1) Without crediting the original author and/or (2) Distorting the meaning of original work in the derivative work; has become the usual trend. With no checks on such practises and penalties on such plagarists, the traditional art and folklore would soon loose its existence to the glitters of the world of cinema. My arguments should not be construed to mean that Badshah has no right to his income from his song. He has every right to the money earned from his hard work. But he should have no right to what has not been “his hard work”. The original author should be recognized and monetarily rewarded. Aditionally, the act of plagiarism and mutilitaion must be penalised. The suggestions to cure this remains the same as discussed in the last post, that a digital library for folklores should be created so that the authorities could verify with such library before granting protection to monopolist forces of the market. If all these above parameters are achieved, we could very well protect folklores with a sui generis protection within the existing IP law regime without passing a completely new legislation for the same.
About The Law 