The act of copying has been central to the ways in which culture has flowed through various parts of the world, transcending the limitations set by space and time. Thus a Polish folk song, “Szla dzieweczka do gajeczka”, becomes a part of Indian popular consciousness through its adaptation as Salil Chaudhury’s “Dil Tadap Tadap Ke” from Madhumati. Secondly, the creation of music has always relied on adaptations, influences and inspirations, whether conscious or unconscious. It would be unfortunate if as a result of aggressive copyright suits, we reach a situation like the United States where even subconscious copying is held to be infringement. In a case brought by a band, The Chiffons, against former Beatle George Harrison, the court held that Harrison’s “My Sweet Lord” was in infringement of The Chiffons’ “He’s so fine”, even though the judge believed that Harrison did not intentionally copy the song and had only been inspired by it subconsciously.

The history of creativity has been marked with a certain generosity in drawing the line between inspiration and mala fide copying, a line better guarded by the ethics of aesthetic practices than by strict penal laws of property. Music scholars have argued, for instance, that hip-hop, which relies on sampling existing tunes, has become less exciting as a result of the chilling effect that copyright has had on the ability to sample. Music has always posed a challenge to traditional ideas of copyright, and while it is well known that copyright merely protects ideas and not expressions, music complicates the idea-expression distinction further. Noted copyright scholar Siva Vaidyanathan asks: Is the six-string note of “Happy Birthday To You” an idea or an expression? Would playing the same note at different tempos constitute a new expression of the same idea? Would playing it differently on a different key constitute a new expression of the same idea?

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