Balancing the rights of Copyright Owners of Sound Recordings and fair use principles enshrined in The Copyright Act,1957

First published in APAA e-Newsletter (Issue No. 45, February 2025)

PRELUDE

The Copyright Act,1957 recognises and protects the Copyright of the owner of a sound recording. It is one such work that touches our daily lives through every phase, every emotion and every memorable moment. Colloquially referred to as ‘Music’, it is common knowledge, that Music has been in use across centuries at public and private events, ceremonies and more recently at movie theatres, restaurants, clubs, hotels and even aeroplanes. Music is known to uplift, soothe, pacify humans and even to set the tone for any gathering where it is played.

Music holds an incredibly vital role in today’s world. It serves as a universal language, crossing cultural and linguistic barriers to bring people together. It offers emotional solace, motivates us during challenging times, and enhances celebrations and joyous moments. Importantly, music plays a significant role in the economy, contributing to various industries such as entertainment, advertising, and technology. The rise of streaming services has revolutionized how we access and consume music, making it more accessible than ever before. In India Brides, Grooms and their families now expect their marriages to be celebrated with similar pomp where music in the form of sound recording of popular Bollywood chart busters are an absolute must for the enjoyment of the guests at such marriages.

Section 52(1)(za) of The Copyright Act, 1957(the “Act”) recognises the fair use principles surrounding sound recordings at marriages but leaves much to interpretation.

CASE STUDY

The Respondent Authority, Govt. of Goa, Department of Home had issued a Circular on January 30,2024, which was intended to bring to public notice and the police the fair use provisions enshrined in Section 52(1)(za) of the Act which concerns fair use of a literary, dramatic, musical work or a sound recording or communication to the public of such work in the course of a bona fide religious ceremony which includes a marriage procession and other social festivities associated with a marriage and that it would not amount to infringement of Copyright. This was intended to advise copyright societies/assignees of copyrights from abstaining from raising illegal demands of royalties/any fees from the users and to sensitize the police not to cause undue harassment to the public.

The said Circular interpreted the provisions of Section 52(1)(za) of the Act and inter alia said that “…is very clear which states that such performance of musical works, etc, at religious ceremonies, including weddings does not amount to violation of the Copyright Act 1957.”. The Circular further observed that the said Section applies to” religious ceremonies/festivals including wedding/marriage events and other social festivities associated with marriage…”

The afore stated Circular was based on the DPIIT issued “Public Notice” dated July 24, 2023, clarifying that the definition of the term “Religious Ceremony” (as mentioned in Section 52 (1) (za) of the Copyright Act, 1957 (Act)) includes “marriage procession and other social festivities associated with marriage”.

The aforesaid circular of the Government of Goa, was challenged by the Petitioner, Phonographic Performance Limited (PPL) by way of a writ petition[1] on the following grounds:

• Respondent No.1 being the Home Ministry of Goa, does not have jurisdiction to interpret law, as the impugned Circular demonstrates, Respondent No.1, as an executive arm of the Government cannot assume legislative functions and interpret the law. Respondent No.1 by way of the Circular has expanded the scope of Section 52(1) (za) of the Act.
• The impugned Circular impinges on the petitioner’s right to initiate civil/criminal proceedings for infringement of its copyright.
• The question whether certain acts would fall under Section 52(1) (za) would have to be seen on a case-by-case basis. A general interpretation cannot be given to the same.

The Hon’ble High Court while quashing and setting aside the said Circular on August 13,2024 inter alia held

• The circular in expanding the scope of Section 52(1)(za) is bound to have consequences disturbing the balance which the Copyright Act seeks to achieve between the interest of the rights of the author/owner of the copyright and those claiming protection of Section 52(1)(za). As to what shall not constitute infringement of copyright is provided by Section 52(1) (za). We are afraid that the circular, though claimed to be informatory in nature to make the citizens aware about the provisions of Section 52(1) (za), according to us, such information has the effect of distorting the provisions of Section 52(1) (za).
• If the Circular is perused, the same covers religious ceremonies/festivals including weddings/marriage events and other social festivities associated with marriage. No doubt, reading of the Circular shows that the same is issued to prevent undue harassment to the general public. However, in the process, the respondents have undertaken an interpretative exercise of adding words in the circular which are not part of Section 52 (1) (za). For instance, the Section uses the term ‘marriage’ whereas the Circular uses the word ‘wedding’ in addition to the ’marriage’ and that too in the context of an event. Again the question is whether the term ‘marriage’ in Section 52(1) (za) has the same meaning as the term ‘wedding’. The impugned circular uses the term ‘wedding’. The purport of Section 52(1) (za) appears to be that the act in respect of which it is claimed that there is no infringement of copyright Act must be strictly within the umbrella of the expression ‘bona fide religious ceremony’.
• There is a difference between informing the public at large the provisions of Section 52(1) (za) as it stands to safeguard their interests; with that of informing the public by distorting the provisions of Section 52(1) (za).
• the question as to what act is not an infringement of a copyright is best left for adjudication by the competent forum which accords with the mechanism provided under the Act. Hence the question whether the act does not constitute an infringement of copyright needs to be decided on a case to case basis.
• the Circular puts fetters on the copyright societies from exercising their rights under the Act. The Circular saying that insistence by certain organizations, hotels for getting permission from the copyright society for performance of musical works, communication to the public sound recording is in violation of Section 52 (1) (za), interferes with the mechanism provided under the Act for exercise or enforcing rights of copyright societies under the Act.

CONCLUSION

Since, the Act does not explain what ‘social festivities associated with a marriage’ include, one wonders, if events such as bachelor/hen party or separate musical events spanning over several days of festivities as has become the norm in high budget marriages which are becoming the flavour of our times, would be covered under fair use and would not call for licenses from the Copyright owners of sound recordings used therein.

The author argues that it would be prudent to expect a marriage event planner to obtain licenses from the owners of copyrights in such sound recordings to be played at such events, especially when any such event is not a part of a marriage procession and other social festivities associated with a marriage in the ‘traditional sense’. The need for a license has to be looked into a case to case basis.

The judgement reaffirms the view that that the interpretation of a statute should be left to the Judiciary. It is also a shot in the arm of Copyright owners and licensors to find that their interests are being recognised and protected by the various High Courts in India. The author hopes not to have unmindfully tread into the domain of interpretation.

[1] 2024 SCC OnLine Bom 271

Debjyoti Sarkar

Having been a part of the firm for over 8 years, Mr. Sarkar handles large trade mark portfolios for clients in sectors of engineering, healthcare, fast moving consumer goods, food and beverages, clothing and footwear, among others. He advises on all aspects of trade mark laws ranging from availability searches the pre-filing stages through trade mark clearance phases, applications, prosecution, oppositions, maintenance of registrations to other post registration activities. He also advises on trade mark licensing and assignments. Also dealing with contentious matters concerning our clients’ foreign trade marks’ portfolios, Mr Sarkar is actively involved in matters concerning passing off and infringement actions before the courts and domain name disputes before the World Intellectual Property Organization (WIPO) and the .IN Registry. He engages in enforcement actions before the Customs Office. He is also an active member of the Copyright team. He is currently chairing the MEASA Sub- Committee of INTA Legislation and Regulation Committee. He is a member of INTA and APAA.

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