Music Sampling And Copyright In India: An Examination OfLegal Ambiguities And Fair Dealing

by Kritika Gole

I. Introduction 

Sampling in music refers to selecting a certain section or fragments of an existing sound track and utilising it in a new composition. Reusing of soundtracks in such a manner has been a common practice for the past few decades, however the era of digital music has transformed the purpose, methodology and the scale at which sampling is practiced. While it is commonly associated with genres such as hip-hop, electronic music and film scores, it does not stay limited to and has recently been used in film scores, rock and pop music. In order to comprehend the practical application and legality of music sampling, understanding the two major methodologies becomes crucial - namely direct and interpolated. Direct sampling involves the reusage of the exact piece of an existing track, without alterations in the new soundtrack; direct lifting of original recording with minimum changes. Whereas, an interpolation involves the recreation of the original piece, but an altered version. The track contains the lyrical or melodic portion of an existing track, not as it is, but a re-performed recording. The distinction between the two is what determines the legality 

II. Legal Framework in India

A. Components of a musical piece 

Although there is no statutory provision expressly addressing music sampling, it largely falls under the purview of the Copyright Act, 1957 (“the Act”). The copyright provides for two sets of rights, which are pivotal to understanding ownership, necessary permissions and specific elements of the track that are protected. These rights are applicable to musical work and sound recording under sections 2(p) and 2(xx) of the Act respectively.

Section 2(p) describes musical work as “...means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music”. Musical components like the rhythm, melody, harmony, tuning and structuring of the song are protected as they compound to the make up of a musical composition. ‘Graphical notation’ refers to the written or visual representation of the composition, such as sheet music, background scores, digital notations and written scores. It is also inclusive of the Sargam - Indian classical notations. These notations should be clearly distinguished from the lyrics or words used in the soundtrack, as this section solely focuses on the protection of elements of musical composition; whereas, lyrics and wordings come within the ambit of literary work, protected under section 2(o), distinct from musical works. The creator of musical work is addressed as the composer, defined under section 2(ffa) and 2(d)(ii) of Copyright Act. Composers hold the rights of reproduction, adaptation, public performance, and other exclusive rights over their composition independent of the producer’s rights, unless limited by contractual terms. Therefore, sampling of such musical work would essentially need permissions and licensing from the original composers, which would otherwise amount to a copyright infringement.  

Sound recording is defined under section 2(xx) as, “…means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.” It covers the major characteristics of the recording of a piece, regardless of the medium in which it has been recorded – both digital and physical formats. Furthermore, it extends fixed audio, which could be categorised as music, speech, beats or any other sound as long as it possesses the ability to be played back and reproduced. The copyright for a sound recording is limited to the recorded audio itself, inclusive of the economic rights to reproduce, issue copies and communicate to the public, and does not extend to the musical arrangement or the lyrics of the audio; these rights, also known as master rights, are held by the producer who is defined as the author of the work under section 2(d)(v) of the Act. This right over sound recording places restrictions on direct sampling, as it includes the original recording itself. Therefore, such a sampling would require licensing and permissions from the producer. Nevertheless, these rights do not impose licensing requirements on interpolation, as the rights are limited to usage of the original audio note without alterations. However, interpolation may comprise altered and recreated version of the original, and would typically not use the original recording as it is. Since, interpolation uses the musical work, it is likely that it calls for a license from the composer, but not from the producer.

III. Doctrine of Fair Dealing

Fair use is not specifically recognised under Indian jurisprudence however Section 52(1) of the Copyright Act provides for certain exceptions to copyright infringement if they are within the limits of the principles of fair dealing. Fair dealing is limited in its scope and is narrow in comparison to fair use. It provides for usage of musical works for “private or personal use, criticism or reviewing purpose, reporting current events, research and education, and in judicial proceedings.” Generally, these exceptions are not applicable for commercial purposes,; however, it may be allowed only if it does not cause a disadvantage to or harm the market value of the original work. This provision does not explicitly provide guidance as to how music samples are to be treated. The test of transformative use is a key component of the fair use doctrine in US copyright law, which recognises and authorises the use of existing works if they are altered, modified in the way that adds value to original work, and thereby creates a new piece. This test is not given much importance or weightage in Indian copyright law, restricting its application only to certain cases. Thus, musical sampling can be done only to a limited extent and for specific purposes allowed under the doctrine of fair dealing. 

IV. Judicial Precedents 

One of the landmark judgements that discusses sampling of music and layered licensing is in the case of Gramophone Co. of India Ltd. v. Super Cassettes Industries Ltd., in which the court distinguished between the copyrights applicable on the musical composition, the sound recording and the lyrics of a particular audio. Super Cassettes had changed and recreated some of the copyrighted devotional songs, without obtaining a license from the Gramophone Company. The honourable supreme court reinforced the principle of layered rights and stated that each part of the song required specific license for its usage. It also clarified about ‘version recordings’ emphasising on modification of original recordings. The Supreme court in the case of Indian Performing Right Society Ltd. v. Aditya Pandey, held that broadcasting a sound recording requires them to pay royalties to the producer or the owner of the sound,; lyricists and composers cannot claim separate royalty rights beyond the copyright of the producer, when it is communicated to the public through sound recordings.  

The Copyright (Amendment) Act, 2012 subsequently noted that this decision did not safeguard the rights of the composer of a musical piece. Thus, it mandated that even the composer and other authors were entitled to royalties over the audio recordings and that these rights cannot be set aside.

Tips Industries Ltd. v. Wynk Ltd. & Anr. is a relevant case in which Wynk used Tips’ songs despite the expiry of their license, by applying Section 31D of the Copyright Act. The court held that this statutory provision cannot be used to circumvent licensing requirements, and that this section is not applicable to digital platform usage. It emphasised on the exclusive rights of the author, reinstating that unauthorised use, including streaming and sampling of copyrighted music without due license amounts to an infringement. 

Therefore, direct sampling mandates a license from the composer as well as the producer, for the musical work and sound recording respectively. Contrastingly, interpolation would necessitate a license from the composer alone and not from that of the producer. This is because, it presents a similarity with the musical arrangement and does not explicitly use the original audio. This is the conventional practice, which is subject to the discretion of the court depending upon the facts and circumstances of the specific case. The court may consider various aspects such as the length of the sample, melodic movement and patterns, frequency and commonness of the rhythm. Presence of ambiguity and vague provisions creates inconsistencies in cases of sampling, due to the gap in the existing laws and statutory provisions,; due to which they are broadly left to the discretion of the court. 

IV. Conclusion 

The concept of music sampling and principles underlying fair dealing find themselves at crossroads with each other. On one hand, sampling seeks to encourage creative use and application of existing soundtracks,; modifying various components of the track and adding own, innovative elements to create original music. Copyright framework in India, per contra, demonstrate more restrictive tendencies, prioritising the interests and rights of the authors of musical works, over creativity. Existing Indian laws do not sufficiently provide for ease in music sampling, as there persists a strong dependency on obtaining licenses from authors. Due to the narrow scope of doctrine of fair dealing and restrained application, sampling continues to be a niche field of artistic innovation. Developments in digital music and evolution of technology in music production calls for a more flexible nuanced approach of laws, which would balance interests of various stakeholders.  References:

1. Copyright Act, § 2(p), No. 14, Acts of Parliament, 1957 (India).

2. Copyright Act, § 2(xx), No. 14, Acts of Parliament, 1957 (India).

3. Copyright Act, § 2(d)(v), No. 14, Acts of Parliament, 1957 (India).

4. Copyright Act, § 52(1), No. 14, Acts of Parliament, 1957 (India).

5. Copyright Act, § 2(o), No. 14, Acts of Parliament, 1957 (India).

6. Copyright Act, § 2(ffa), No. 14, Acts of Parliament, 1957 (India).

7. Copyright Act, § 2(d)(ii), No. 14, Acts of Parliament, 1957 (India).

8. Gramophone Co. of India Ltd. v. Super Cassettes Industries Ltd., A.I.R. 2000 S.C. 2664 (India). 

9. Indian Performing Right Society Ltd. v. Aditya Pandey, A.I.R. 2012 S.C. 195 (India).

10. The Copyright (Amendment) Act, No. 27 of 2012, Acts of Parliament, 2012 (India).

11. Tips Industries Ltd. v. Wynk Ltd. & Anr., 2021 SCC OnLine Bom 1334 (India).

12. Prashanth S. Shivadass & Rachana Pise, Everything You Need to Know About Music Sampling: The Indian Perspective, SCC Times (Sept. 14, 2021), https://www.scconline.com/blog/post/2021/09/14/everything-you-need-to-know-about-music-sampling/.

13. W. Michael Schuster, David M. Mitchell & Kenneth Brown, Sampling Increases Music Sales: An Empirical Copyright Study, 56 Am. Bus. L.J. 177 (2019)

14. Yurii Havrylenko, What Is Sampling?, Pibox Resources (Jun 6, 2025), https://pibox.com/resources/glossary/what-is-sampling/

15.Anuja Saraswat, Music Sampling and the Defence of Doctrine of Fair Use, Mondaq (Dec. 18, 2020), https://www.mondaq.com/india/copyright/1158044/music-sampling-and-the-defence-of-doctrine-of-fair-use

16. Aditya Krishnan, Understanding Transformative Music Sampling as Fair Use: Developing a Framework that Promotes Artistic Expression, SSRN (Apr. 2, 2024)

17. Navin Kumar Jaggi, Music Industry Rights Under the Copyright Law, JJ & JA Attorneys (June 1, 2024), https://www.jjandjattorneys.com/post/music-industry-rights-under-the-copyright-law

18. Shrikanth R. Kashyap, A Critical Analysis of Digital Sampling of Music and the Need for a Change in Copyright Law in India, 18 Supremo Amicus 901 (2020)