In this set of 4 posts- I shall be discussing my dilemmas from the Kacha Badam Controversy. The first post covered my thoughts on the delusion that this whole controversy has produced and the need to revamp its factual narrative. This second post covers my thoughts on the hard case that this factual narrative exposes- something I cannot really grapple with yet. The third post shall brainstorm thoughts on resolving this hard case. And finally, the fourth post will, in the backdrop of these three posts, discuss an amazing paper by Prof. Alpana Roy titled- “Copyright: a colonial doctrine in a post-colonial age” and how her thesis has an important role to play in figuring out/ or rather even further complicating this hard case.
PART – 2
To put the idea of the hard case (not in the Dworkinian sense of “principle” but rather qua policy) in context, I would refer to how I began thinking of it. While reading the wonderful Prof. Anjali Vats’s book- The color of creatorship, I came across an interesting narrative in the context of the Blurred Lines case in the US (Williams v. Bridgeport Music Inc. (2015)). What Vats mentions is that reading the Blurred Lines case is a complex negotiation in the backdrop of a legal system that consistently disenfranchises Black creators of the ability to come across as winners. The case was a historic instance, hailed by many, where, in a copyright infringement action, a Black creator was given a favorable judgment on infringement over, as Vats mentions, “white vultures” of the music industry. This was in a situation that was debatable from the lens of the infringement standards practiced in the US (given it involved ambient sounds). Now- there were two schools of thought that emerged after this case (both belonging to the larger roof of social justice scholars– however taking completely opposite stands on this issue):
The case was significantly hailed by a school of thought as a moment of reparation for black creators, who were significantly appropriated for a larger part of music history, without any sort of monetary compensation. It was an instance helping move toward a legal remedy for more than decades of appropriation of black artists. It was also appreciated as an instance that recognized the protectability of black musical practices.
HOWEVER
A set of critics of this judgment (the other school of thought) kept their focus on a rather structural argument concerning the colonial/western nature of Copyright policy, arguing that the said instance does nothing to repair concerns of equality and in effect reifies and attempts to normalize concepts outside black culture into black culture (in-contextual transposition). Hailing the judgment also estranges the fact that the verdict is extremely harmful to appropriative cultural practices like sampling, hip hop, reggaeton, etc. (mostly practiced by black musicians, or loosely non-western musicians). It reinforces racial capitalism, and a structural racial skew in legal interpretation, against normatively black practices which focus on re-use, and derivation rather than “original creation”. According to them, internalizing could never ever remedy/repair a copyright system that is racist to the core– and there was a need to structurally challenge it rather than supporting the expansion of the doctrine.
This brings us to the hard case. Prof. Vats, in her book, presents this hard case in an interesting manner by writing as to how this situation was a seemingly forced choice for individuals invested in social justice outcomes out of this case and IP in general. It was either (i) embracing nostalgia and reparation for Gaye or (ii) a commitment to the musical innovation of hip hop (a non-western, non-white, non-individualistic art form dissonant with traditional principles of copyright law).
It was essentially a hard case to choose between “more” copyrights supporting the interests of black artists within the system of copyright law that exists, or a structural change in copyright according to actual epistemological realities or non-white cultures.
Using this, she turned to the de-colonial notion of creatorship and protection, outside the romanticism of commodification and the racial capitalism that it produces. She argues in her last chapter: “Advocating for intellectual property egalitarianism in a way that is legally and politically legible, requires pushing back against accepted IP doctrines, which conceal racial (and colonial) logics.” It is basically a debate between- internalizing possessive individualism (and looking for a solution within) v. structural questioning, which of course may not be a binary, but could end up eroding each other’s territories. We shall get more into this in Part-4.
Against this backdrop, the motion essentially is – Does the celebration of a black artist (Plaintiff) getting a judgment in their favor on copyright infringement, reflect a vantage point in the estrangement of cultural practices, norms and tendencies, through the neo-colonial tool that is western copyright?
Coming to the Kacha Badam issue, and the relevance of this backdrop therein:
I completely subscribe to and endorse the need to ensure that Copyright policy allows Bhuban to protect/recoup his remunerative interest in this performance, given his economic state/ standing, and the surprising visibility that has only been made possible due to the virality provoked by the long tail of the internet. Even record labels nowadays take their investment decisions depending on this viral tendency and potential. Prior to the internet, there was effectively a grand denial to creators/artists from remote villages in India to a claim to participate in visible culture and to be able to exploit them economically- especially due to the need to satisfy the aesthetic preferences of record companies before getting any visibility. I also agree that given folk artists have been denied such protection for the longest time, such remunerative benefit and commodification would help Bhuban do economically better, and will also recognize the copyrightability claims of such artists (I am still unsure as to whether we can categorize Bhuban’s performance as folk, but the song’s tonality does reflect folkish tendencies). I also understand the intuitional trigger and reparational thought in favor of Bhuban due to the long denial of visibility to such artists, his economic state, and the just desserts philosophy that comes with it.
I further subscribe to the fact that – those remixing and using Bhuban’s performance, attributing it to themselves, and in some cases also claiming copyrights over them (exclusivity over exploitation) to market using social media platforms/reels and other mediums, ought to pay license charges to Bhuban and attribute him- given the realistic state of the capitalistic society we live in. The possibility of remixers (who enjoy a better capability to capitalize or better access to visibility) using copyright to claim monopolies on their derived output- and earn money without paying any license fee to Bhuban, can never be discounted. The possibility of them misappropriating something linked to Bhuban’s identity can also never be discounted.
These are some extremely important real-world issues and do effectively endorse this thought of addressing the remunerative and reparative interests of Bhuban and such artists using Copyright law and its possessive individualism– as due compensation for the years of denial of economic compensation over such output and a lack of equal visibility.
But…..here comes the hard case.
A non-internalist/structural critique of this whole controversy would be-
Isn’t the compensating mechanism, mentioned above, normalizing a legal system of exclusivity and possessive individualism -over cultural expressions? Isn’t this a purely western normative ideal, against the norm of sharing – practiced widely in Indian folk cultures, forms of music, musical tendencies, and practices? How does it reflect as a consequence on the idea of imitative musical learning as a mode of pedagogy- which is extremely prevalent in indigenous and alternate musical practices? How does it also reflect on the romanticism of individualistic IP policy and its transposition on dissonant communitarian cultural practices/societies?
In India, indigenous cultural expressions have never really aligned with property-based exclusivities. In fact, to the contrary, there has been explicit resistance to recognizing this possessive individualism (see here, here, here, here (accompanying note 16) and here), by practicing norms of anonymity while disseminating content, practicing imitation based learning as a core form of pedagogy (here, here, here and here) and by rather focussing on communitarian practice and performance of cultural expressions (here, here and here). For a general critique of the idea of possessive individualism – in the context of Indian culture and identity- see here (Chapter 8). Jaszi and Woodmansee have also, in detail, discussed the dissonance of individualistic norms of authorship and various cultures (which they refer to as “traditional” cultures, although I prefer- alternate cultures).
The problem with internalizing copyright norms, which are premised on exclusive possession, is that it often relegates ontologically non-commodifiable/ non-individualistic/ community outputs and expressions, to the verge of cultural estrangement and diminishing. Expressions like folktales, ballads, chants, proses, alternate musical practices, religious musical expressions, Indian Classical and Carnatic music, etc., which involve aural transmission or are derivative and collective/communitarian creations do not fall within this commodifiable idea of a creation that is copyrighted and economically transacted in a market setup. This often results in cultural freezing. I, not for once, propose to say that the law should rather commodify such communitarian perspectives as well (as it has been doing in the case of traditional knowledge lately). I rather contend that this normative dissonance ought to be realized in the law and should be remedied by tailoring the law to foster these cultural practices rather than impede them by commodifying and altering their ontological nature in the first place. Transcribing western copyright norms, and in fact romanticizing them (its expansion and role) in cases of completely dissonant expressions, as in the case of Bhuban’s work, ignores the incompatibility of cultural expressions with core principles of western copyright norms- (i) fixation, (ii) individuated authorship, (iii) romanticism of originality and non-derivation (iv) exclusive possession, (v) author performer divide. It also results in cultural alteration- merely for commercial advantage. In my opinion, such transposition of non-compliant norms takes the shape of a neo-colonial tool that does nothing but reflect the political economy of framing the law (in favor of western commercial interests by the neo-liberal tendencies of the western society). It also affects the political economy of culture and cultural practices. It shows a skew towards market fundamentalism, even in cases of cultures- which were never really supposed to be/ fit to be marketed in an industrial setup. We have to realize this and structurally challenge this.
Bhuban’s musical tone reflects a clear folk tonality, wherein it isn’t easy to assume originality, lest it shall devoid a majority of the members of a community, and dispossess them a claim to something that is normative to the community practice. Every possession results in dispossession. Even assuming the said musical work to be original, the social process of creation and the privilege of being able to access an audience can never be discounted. Romanticizing and transposing individualistic norms of this sort- denies many (who lack such access to showcase, get showcased, and receive) a participative claim to cultural exchange. Moreover, western copyright norms often seek justification on the idea of incentives- i.e., the assumption that unless such rights are granted- one might not be incentivized to create. Well, for starters, Bhuban had no idea he had these copyrights when he performed. The generalization of such a utilitarian conception, in cultural policy, dismisses the fact that for many – music is merely a source of communication and expression and not something which requires any incentive to be produced (some interesting scholarship on this facet here, here, here, here and here) However, this, of course, does not discount the fact that for many, who seek to practice music professionally and are not able to due to economic concerns forcing them to marginal sources of revenue (avenues which guarantee better economic condition), such incentives matter. What I seek to challenge is the generalization of these incentives as being the norm.
So, coming back, how do we resolve this hard case? To be honest, I don’t know. But it may not be an either/or situation as it seems to be. We shall be looking at this in the next post.
Part- 1 – here.
Part 3- here.
Part 4- here.
IP Musings 