FAIR USE IN CONTEXT OF MASHUPS: COMPARATIVE ANALYSIS OF US, UK AND INDIA

Abstract

This paper analyzes evolution of copyright act along with development of mashups industry. I have tried to compare the rights of mashup’s artists with the right original artists in various countries like India, US and UK. I have focused on various exceptions that they can use in case of any infringement of rights of original artists. In the end, I have emphasized on the need of special laws to protect the interest of mashup artists 

Framers or creator of copyright have tried to maintain a balance between monopolization and protection of an artist’s right. Copyright plays a key role in encouraging people to explore the field of creativity. However, one needs to make sure that such protection do not create monopoly which restricts others from exploring any other ideas of creativity. Legislators and courts have evolved the principal of fair use to maintain the balance. 

However, the concept of fair use has been applied differently in various countries. In US, the courts have laid down various tests to justify the use of protected piece that was within the ambit of fair use. Some of the tests are: nature of work, purpose of use, and many more. However, India and UK have an exhaustive list that lays down the scope of fair use. Courts have evolved some tests to determine scope of fair use in these countries, however, when compared with US, the scope is still restrictive.  

Music has evolved with technology. There have been multiple innovations that have resulted in modern music. A very common practice of making mashups, which includes using and combining music or lyrics of different songs to create a new music, has evolved over time. This style of music is very much similar to sampling. These practices have raised multiple questions regarding copyright infringement of the original artist.  

Such infringement can be defended on two grounds. One of them is de Minimis, which means insignificant copying. In copyright, principal of de Minimis stands for minimal copying for which no infringement can be claimed. Second ground for such defense is fair use. If copying is within the ambit of fair use, then no infringement can be claimed.  

In this paper, we have analyzed evolution of copyright act along with development of mashups. In the first part we have tried to introduce and define the concept of mashups highlighting differences between mashups and remix, along with the history of mashups. In the second part we have analyzed the scope of copyright and infringement of rights of original artist that happens through mashups. In the third part we have discussed the principal of de Minimis as defense of copyright infringement including the minimal limit of copying that would constitute infringement in various countries. In the fourth part we have discussed fair use and have compared distinction of the fair use principal in various countries like US, UK and India. Finally, we have concluded this paper by analyzing the impact of inefficient copyright laws on music industries and how it has restricted the creativity of various artists, which is against the spirit of copyright. The spirit of copyright entails to encourage creativity by providing some rights and protection to the artist that must not result in monopoly.