Copyright And Classical Music - Analysis Of Delhi HC Decision

In light of the recent Delhi High Court decision in Ustad Faiyaz Wasifuddin Dagar v.A.R. Rahman this article examines the extent of copyright protection that must be afforded to compositions rooted in Indian classical music, considering its unique traditional fabric. The challenge lies in the test for 'originality' in copyright laws as we understand today.

The case involved the popular composition Veera Raja Veera, which the Court found to have infringed upon the earlier Siva Stuti by the Junior Dagar brothers. The Court applied the “substantial similarity” test and held that the 'soul' of Siva Stuti had been copied — viewed from the perspective of a layperson.

This article argues that viewing originality in classical compositions from the prism of the substantial similarity test or layman is reductionist and does not do justice to the profundity of the art form.

Introduction

From 1^st January 1958 to 10^th May 1995, the law recognised and protected musical works only when they were “printed, reduced to writing or otherwise graphically produced or reproduced.” An idea fundamentally at odds with the tradition of Indian classical music which had little reliance on notations and was inherited primarily through the guru-shishya parampara. From 1977, the Supreme Court in a series of judgements urged for legislative exploration to protect un-notated original musical works, and to afford performers with their exclusive and moral rights which form the fabric of Indian classical music (Pg. 11 – 17). In 1995, the legislature passed an amendment to the definition of musical works in the Copyright Act, 1957 to do away with the requirement of notations. However, this watershed moment of rediscovery of Indian copyright law has also opened a Pandora's box in terms of copyright protection in Indian classical music.

“Originality” - A Shifting Scale

The requirement of originality requires that copyright subsists in original literary, dramatic, musical and artistic works. There is yet to be a judicial/legislative interpretation in India, of the expanse of “originality” in the specific context of Indian classical music.

Carnatic compositions are based on Ragas or specific combinations of notes which act as an identifier for the listener. Ragas have specific rules of ascent (Aroha) and descent (Avaroha) and are also associated with emotions/moods that they evoke. It is important that the prescription of a Raga is part of the public domain, and no copyright can be claimed on it in entirety. While a Raga is limited in terms of the notes (Swara), and their placement (Swarasthana), it presents a canvas for infinite imaginative possibilities in the form of drags, ornamentations (Gamakas), rhythmic variations (Tala), expounding the raga (Aalap), and aural impact. This magnificent potential for creativity poses difficult questions to the law on copyright protection as it stands today. The vexed question this piece discusses is the extent to which compositions in particular Ragas - despite being in the public domain - are protected as original music works.

The need for Originality in interpreting 'Original Musical Works' in Indian Classical Music

Recently, the Delhi High Court (2025) was tasked to determine whether Veera Raja Veera by AR Rahman was infringing the Junior Dagar Brothers' copyright on the Shiva Stuti. The Delhi High Court prima facie held that Raga Adana on which the two compositions were allegedly based] was part of the public domain, but the compositions were identical to each other, and therefore Veera Raja Veera infringed the Junior Dagar Brothers' copyright. This finding is based on the fact that “the manner in which the swaras are picked, the combination of swaras with different swaras in Aroha and Avroha, the repetition of some swaras, the Aalaap, the dragging of some swaras, the transition and the merger are all unique to the composition and differ from the prescribed notations for Raga Adana.” (Para. 139).

This reasoning appears to be in line with the Supreme Court's exposition of “originality” in Eastern Book Company & Ors. vs. D.B. Modak & Anr. (Para. 40), where either substantive variation, original expression, or a result of skill and judgement of the author were considered “original”. It is necessary to contextualize that the definition of “originality” as interpreted in the Eastern Book Company case was in the context of publishing copy-edited versions of judgments, and whether they were original or derivative work. Transposing this interpretation while deciding issues on Indian classical music may be misplaced.

Such an interpretation is unworkable in the classical music context for two primary reasons. First, the aesthetic essence of the Raga lies in few unique phrases, and the stylistic renditions of the composer. Therefore, a forceful search for 'originality' in phrases/combinations that are inorganic to a Raga is antithetical and akin to its death. Second, classical pieces are often shaped by the performer's personal interpretation, stylistic differences, and emotive expression which may seem identical in several instances yet fall within the definition of originality. Thirdly, even a single oscillation, pause of a microsecond, an anuswara, or tonal differences albeit not discernible to a layman, require 'original expression' and are a 'result of skill and judgement' - this will lead to a juggernaut of applications for copyright protection/infringement. The lakshman rekha on the degree of similarity is the single most crucial determination that must be made to ensure clarity in the law governing musical works in the classical context.

Comparing the test for originality as evolved in the USA that is reliant on the 'modicum of creativity' and 'sweat of the brow' doctrines is redundant in the Indian context since a precise categorization of protected and unprotected elements is non-existent. While the rules governing the Raga or the entire Raga itself, cannot be copyrighted, there is ambiguity when it comes to the “catchphrases”, “hook part” and rhythmic variations. There is no defined list of such phrases, and it is impossible for the layman to discern the unprotectable parts. This requires that “originality” must be redefined in Indian classical music to afford copyright protection without shackling creativity.

What is “Fixation” in Indian Classical Music?

A recording satisfies the fixation requirement in copyright infringement (Para. 161). This raises a question of whether the manodharma of a raga, a tanam, or a neraval etc. which are intrinsically not fixed, become protected. If a recording is deemed to satisfy fixation, then, the improvisation itself appears to be eligible for copyright protection since it is an original work, with substantive variations, which are fixed by virtue of the recording. Therefore, in the improvisation segment of another performer, if “substantial similarity” is found, it threatens infringement of copyright. Therefore, the improvisational aspects in a recording must have no legs to stand on, independently, and must remain outside the scope of copyright law, otherwise it will have a chilling effect of stifling creativity.

Substantial Similarity vs. Virtual Identity – Finding the Right Balance

How does one determine substantial similarity between two compositions that admittedly have phrases that are part of the public domain, and essential to the aesthetic identity of the Raga itself? The Delhi High Court has gone a step further to find that such a test must be applied from the viewpoint of a layman (Para. 182).

While determining the substantial similarity between compositions, the ultimate determinant cannot be merely arithmetic i.e., a greater overlap of phrases cannot prove infringement. At the same time, it cannot be a question of aural/emotive impact - which is again a unique function of the Raga itself. The substantial similarity test, particularly as applied from the perspective of a lay listener, may risk equating raga-based resemblance with infringement, hampering legitimate creative expression within a shared musical tradition.

We ought to recognize either through judicial decisions/legislative amendments, that the test must be that of 'virtual identity' in the context of Indian classical music. While the Delhi High Court has categorically refused to apply the said test, it found the suit composition to be 'identical' to that of the Shiva Stuti composition by the Junior Dagar brothers (Para. 192). Hence, it is yet to be seen how Courts will determine 'substantial similarity' in the Indian classical music context.

A Harmonious Solution - Safeguarding the Traditions of Indian Classical Music

In view of the legal and practical challenges in granting copyright protection to classical music, the most appropriate approach would be for courts to undertake a technical analysis with the assistance of expert listeners. This analysis should distinguish between protectable original expressions and unprotectable elements such as ragas, talas, or standard swara arrangements. Crucially, the virtual identity test should be applied to the protectable elements, to determine infringement. Applying the conventional threshold for copyright infringement in classical music will lead to an erosion of the elements in public domain and undermine the cultural ethos of Indian classical music.

Smriti R Saroja is practising at High Court of Madras & Sunand Subramaniam is practicing in Bombay High Court. Views Are Personal.