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Volume: II, Issue I, January-June 2011


MUSIC IN THE CLOUDS: ANALYZING THE IMPACT OF TECHNOLOGY ON THE RIGHTS OF THE USERS IN THE FIELD OF ONLINE MUSIC







Abstract

Internet and other digital technologies have created new opportunities for the resurgence of the Indian music industry. Mobile phones and broadband connections have facilitated consumption of online digital music among the Indian consumers. But the sustained growth of this new industry is dependent upon consumer confidence and trust. The legal rights and protections which consumers of music traditionally enjoyed in the form of first sale doctrine, consumer rights and fair use rights are presently being denied to them in the digital environment. By means of various technological protection measures and other means the music industry is controlling the fundamental right of an individual to listen to music as well as her ability to creatively deal with it. Such control mechanisms are having a chilling effect on individual freedom as well as on the cultural growth of a society. The need of the day is to confer the internet consumers with specific rights and freedoms which help to create a level playing field for both the consumers as well as the copyright holders.



Keywords Content

I.  Introduction

The advent of Internet and digital technology has revolutionized the way in which people enjoy and access different forms of entertainment. The traditional television, movies, music, radio and book industries have all undergone transformation in the past ten years through the process of digitization. Amongst all these industries, it is the music industry which has been in the forefront of adapting itself to the demands of the new technology. With the help of new technologies and through the process of new business models the online digital music business generated global revenue of USD 4.6 billion in the year 2010, which is 29 percent of the overall recorded music revenue. It is estimated that there is immense potential for further increase in the sale of digital music as the percentage of digital music consumers is still less than 17 percent worldwide [IFPI Report, 2011:6].      

Indian music industry is one of the largest entertainment industries of the world. The rich cultural heritage of the country puts India in the unique position where 94 percent of the market is based on sale of domestic and regional music. [Karaganis, 2011:340] The music industry in the year 2009 earned revenue of INR 7.8 billion, registering a growth of 7 percent increase from the previous year sales. [KPMG, 2010:57] This significant increase in revenue was despite the fall in the music sales of physical formats like audio cassettes and compact discs in the country.[i] The fundamental reason for the increase in the revenue was due to the development of online music market in the country. Innovative digital distribution models and increase in the sales of mobile handsets has facilitated the growth of the digital music sales in India. The KPMG-FICCI 2010 report on the music industry – ‘Digitization striking the Right Note’ predicts that the Indian digital music market will continue to make significant growth due to the ever expanding telecom market. Mobile phone and broadband penetration will facilitate increase in sales of ring tones, caller ring back tunes, full track downloads, streaming and music subscription sales. The increasing mobile phone subscriber base of 729.57 million will be the primary cause of digital music revolution in India.[ii] Keeping in view that 83 percent of the young Indians consider music as an integral part of their lives and 61 percent of them use mobile phones to access music, different mobile phone companies, internet service providers, telecom operators and the music companies are coming together to provide the Indian consumers a large variety of digital music services.[iii] In the year 2009 Nokia had launched its first online music store in India called the ‘Ovi store’ to help Indian consumers download a large variety of music by registering on its website. Airtel by launching its mobile entertainment divisions, Music Bharti, became the largest music company in India and surpassed the revenue of Saregama, the largest music company in India. Other instances of mobile music initiatives are the UTV music video channel on mobile, ‘Music Connect’ - music based social networking site by Aircel, ‘Music Box’ by Reliance Communications and ‘Mirchi Mobile’ by Radio Mirchi and Airtel. Thus it can be seen that access to digital music is on the rise in India. [PWC, 2010:82]

But in spite the growing popularity of online distribution of music, there is a critical gap in the legal regime applicable to consumers of such music. The traditional protections which consumers of music enjoyed in the form of first sale doctrine, consumer rights and fair use rights are denied to them in the digital environment. By means of various technological protection measures as well as fear of litigation the digital industries are controlling the fundamental right of an individual to listen to music as well as her ability to creatively deal with it. Such control mechanisms are having a chilling effect on individual freedom as well as on the cultural growth of a society.

In order to sustain the benefits of Internet and other advanced technologies, and promote the growth of online market it is necessary protect the interest of the copyright holders as well as internet consumers. It is important to confer certain rights and freedoms to the consumers so that they will have adequate confidence to take full advantage of the various benefits of online technology and participate fully in the online marketplace. Conferring the consumers with specific rights and freedoms would give them the authority to demand access to new technologies for better enjoyment of Internet without fear of litigations from the copyright holders. Such new legal regime would ensure better growth of online distribution of music.

In this paper it is being argued that music being part of the great Indian cultural heritage needs protection as well as promotion in the digital era. Music industry is primarily a consumer driven industry which will grow so long as the consumer is granted certain rights and is able to protect those rights through legal actions. In this new market place it is essential that the economic interests of the copyright holders are protected without compromising with the needs of the consumers.

The paper has been divided into five primary parts, in exclusion of the introduction and conclusion. The first part discusses the importance of music in human life and traces its transition from being an element of ancient Indian religious rituals to being an essential component social and cultural life in modern times. The second part traces the impact of technology on music. It discusses the propertization and commodification of music from a community art form due to the impact of recording technologies and the growth of music industry. It further discusses the impact of internet and other digital technologies on music and the development of music in the clouds. The third part of the paper discusses the various advantages and the disadvantages of online distribution of music and analyzes their impact on the different actors of the music industry including the musicians, recording companies and the consumers. The fourth part of the paper discusses the transformation of passive consumers to active users of the digital medium and frames the foundational arguments for recognizing the rights of the users in the digital environment. The fifth part of the paper analyzes the Indian Copyright Act 1957 and the Copyright Amendment Bill, 2010 and attempts to charter out a set of internet related user’s rights.  

I.  Music is a revelation of life

Music is an integral part of social and cultural life of mankind. In the course of history every human settlement had developed its own unique and individualistic music. It is a reflection of a society’s way of life and culture. Eminent ethnomusicologist Jeff T. Titon observed that “Music symbolizes a people’s way; it represents a distillation of cultural style.” [Titon, 1996: xxxvi–1]

The origin of music in India can be traced to the ancient Indian religious and cultural tradition. On one hand music was considered as a form of art for the purpose of human entertainment and on the other hand it was considered as a tool for spiritual development of man. In ancient India chanting of religious hymns in a melodic manner was considered essential to attain spiritual well being. It was believed that the ultimate goal of music was to help the individual achieve liberation or moksha from the endless cycles of life and death. The Upanishad states ‘Manayeva Manushyanaam Bandha Moksha Yoh Kaarnam’ that is ‘it is only music and nothing else can save the mind from bondage’. The history of Indian music is almost 4000 years old. Musicologists tracing the origin of Indian music generally locate them in the Vedas and other religious scriptures of ancient India. The earliest Indian treatise on musical works was written by Bharata in between 200 B.C. and 200 AD and was known as Natya shastra or the ‘Science of Theatre’. This treatise is deemed to be the primary source for the evolution of classical Indian music. The other important ancient texts on music are Naradiyasiksha or ‘the Phonetic Manuel of Narada’ written by Narada in the first century B.C. and Brihaddeshi or the Great Treatise on Desi’ written by Munni Bharata Matanga in the ninth century B.C. But the most important treatise on classical music - Sangeet Ratnakar or ‘the Jewel Mine of Music’ was written by Sarangadeva in the year 1240. This encyclopedic work dealt with a broad range of subjects including musical theories, singing techniques and different forms of talas.

The Indian classical music underwent a significant transformation during the medieval period. The invasion of Muslim infiltrators in the northern part of India had a profound impact on the existing musical tradition and over a period of time two distinct forms of music developed in the northern and southern regions of India. The northern school of music was deeply influenced by Persian and Arabian forms of music and came to be popularly known as Hindustani classical music whereas the southern musicians retained the traditional classical form of music and were referred to as the Karnataka sangeeta or Carnatic classical music. The two schools differed in their presentation and approach towards music while Karnataka sangeeta retained the purity of the original classical form, the Hindustani music blended in the spirit of Persian and Arabian music with the Indian traditional music. The distinction between these two schools of music continues till this day. [Sharma, 1997:8-9]

Indian classical music in spite of its rich tradition had limited popularity amongst the people. Both Hindustani and Karnataka sangeeta were patronized by the rulers and the nobility and were considered as an exclusive form of art protected by the system of guru-sishya parampara. The vast majority of the Indian population was exposed to other forms of popular music like devotional songs, folk music, life cycle songs and musical dance dramas. People living in different geographical areas had their own linguistic, ethnic and cultural identities, and music was an essential part of their lives. Each community had their own musical tradition and heritage. However these forms of music in spite of their popularity had not attained universality because of religious and linguistic differences amongst the people. [Arnold, 2000:1-2]

In the early twentieth century ‘cine music’ or the Indian film music was the first to assume popular acceptance across the whole country. Along with cine music, the other forms of popular music are bhajans, qawalli, ghazals, regional folk music and contemporary pop music. The growth of popular music in the twentieth century is primarily due to the development of audio recording technologies in the late nineteenth and twentieth century.

II. Impact of Technology on Music

a. Phase I : 1877 - 1990

The birth of audio recording technology started with the invention of the phonograph by Thomas Alva Edison in the year 1877. This instrument was capable of recording and reproducing sound, and it revolutionized people’s ability to listen to recorded music. All subsequent development in audio recording technologies facilitated the growth of mass consumption of music. In 1888 Emile Berliner had invented the first Long Playing (LP) record which was to be played in a machine called gramophone. The LP record was initially made up of hard rubber but by the end of 1940s it was replaced with more advanced plastic LP discs. In the 1950s magnetic tapes were developed to be played in an instrument called magnetphone. Further advancement took place in 1963 when Philips introduced the ‘compact cassette’ or audio cassette and initiated the growth of cheap, portable and compact music players, which brought music to the door steps of the common people. The further development of digital audio compact disc (CD) technology in the 1979 by Sony and Philips initiated the process of digitization of music. All these technological advancements in the past hundred years has not only made music a popular art form, but had three major impacts on the field of music – growth of music industry, commodification of music and propertization of music.

The first major impact of technology on music was the creation of a vibrant music industry worldwide. The US Gramophone Company was the first company to produce music records in 1894. The other early recording companies were Columbia Gramophone Company and Victor. These companies were in the business of finding new musical artists or performers and then recording, producing, distributing and marketing the recorded music in physical formats to music loving consumers. Over a period of time a number of other recording companies emerged like Capital, MGM, Mercury, Victor, Columbia and Decca. Presently there are five major music companies in the world – Universal Music Group, Sony Music Entertainment, Warner Music Group, Bertelsmann Music Group (BMG) and EMI. These five companies are known as Big Five and they together own over 80 percent of the world music. [Tschmuck, 2006:166]

The dynamic world of Indian music attracted the commercial interests of the western music companies from early times. In 1901 EMI, London started their first overseas branches in India. In 1946 the company was incorporated under the Indian laws and was known as ‘The Gramophone Company of India Limited.’ The company had a long period of monopoly domination in the country and the music records were produced under the brand name ‘His Master’s Voice’ (HMV). This monopoly was broken in the 1980s by the growth of indigenous recording industry in the country. The development of compact cassette technology facilitated the production of cheap audio cassettes and tape recorders which helped to locally record and produce music. Throughout the 1980s and 1990s a large number of music companies were established which challenged the hegemony of the Big Five recording companies in India. Today 94 percent of the music consumed in India is produced locally, with the international music market being merely 6 percent. In 1985 the Indian based company RPG Group took over the Gramophone Company of India and changed its name to ‘Saregama India Limited’, thereby ending the western domination of music. The leading Indian music recording companies are Saregama India Ltd., Tips, Venus, Crescendo, Magnasound, Milestone, Times Music and T-Series. These companies along with the All India Radio (AIR) have played a significant role in popularizing different forms of music, including cine music, amongst the common people living in nooks and corners of the country. [Manuel, 1993:22]

The second major impact of audio recording technologies was the commodification of music in India. Traditionally music was a performance based art and the knowledge of music was passed down from one generation to another. Regional folk songs and devotional songs were orally performed during religious ceremonies and cultural activities. Performance of classical music was generally patronized by the kings and noblemen or by the ancient Indian temples and other religious institutions. Mass production o