Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India
To find the answer of the above query, it is important to first refer the relevant provisions under the Copyright Act, 1957, relating to the literary work, musical work and sound recordings, as provided under the Copyright Act, 1957, before retorting to the above query:
The Copyright Act, 1957 defines musical work and sound recording, as under:
Section 2 (p) "musical work" 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;]
For the purpose of this Article, Literary work means the lyrics of a song.
WORKS IN WHICH COPYRIGHT SUBSIST
Section 13 of the Copyright Act, 1957 states about the works in which copyright subsist. The relevant extract of section 13 is as under:
- Subject to the provisions of this section and the other
provisions of this Act, copyright shall subsist throughout
India in the following classes of works, that is to
- original literary, dramatic, musical and artistic works;
- cinematograph films; and
- sound recording.
EXCLUSIVE RIGHTS OF COPYRIGHT OWNER
Section 14 of the Copyright Act, 1957
Meaning of copyright.—For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:—
(a) in the case of a literary, dramatic or musical work, not being a computer programme,—
- to perform the work in public, or communicate it to the public;
(e) in the case of a sound recording,—
- to make any other sound recording embodying it 1 [including storing of it in any medium by electronic or other means];
- to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;
- to communicate the sound recording to the public.
TERM OF COPYRIGHT
Under Section 23 of the Copyright Act, 1957, a copyright in literary and musical work subsist until 60 years from the beginning of the calendar year next following the year in which the author dies and Section 27 of the Copyright Act, 1957, a copyright in sound recordings shall subsist until sixty years from the beginning of the calendar year next following the year in which the sound recording is published.
WHEN COPYRIGHT IS INFRINGED
Section 51 of the Copyright Act, 1957 defines the situations when copyright is considered to be infringed.
Copyright in a work shall be deemed to be infringed—
- when any person, without a licence granted by the owner of the
copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a licence so granted or of any
condition imposed by a competent authority under this Act—
- does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
- permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]
- when any person—
- makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
- distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
- by way of trade exhibits in public, or
- imports into India,
any infringing copies of the work:
FAIR USE EXEMPTION AND ITS APPLICABILITY
Section 52 of the Copyright Act, 1957 enlists certain acts which do not constitute an infringement of Copyright. Specifically, Sub-section (1) (za) of the aforementioned section, states that:
"the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.
Explanation- For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage."
In the case of Devendrakumar Ramchandra Dwivedi vs. State of Gujarat and Ors. (24.09.2009 - GUJHC), MANU/GJ/0440/2009, the Hon'ble Gujarat High Court has observed that the main thrust of Section 52(1) of the Copyright Act, 1957 is to exempt live performance of such works when there is no commercial purpose and when there is no admission charge and/or when admission proceeds are used exclusively for educational, religious or charitable purpose and not for private personal financial gain. Above principle is generally called fair or honest use doctrine which constitutes the most significant limitation on the exclusive rights held by a copyright owner and held as under:
"The Central Government State Government or any local authority can arrange the performance of a literary, dramatic or musical work, officially which will not amount to infringement of copyright or also in connection with a bonafide religious ceremony like Navratri Pooja, Arati etc. so also marriage procession or other social festivities associated with a marriage, would not amount to infringement of copyright."
The Hon'ble Court in a way has limited the applicability of Section 52(1)(za) only to Central Government, State Government and local authority and to non-commercial purpose.
Further, in the case of Phonographic Performance vs. State Of Punjab, (Civil Writ Petition No.7772 of 2011 (O&M))(https://indiankanoon.org/doc/1370731/ ), the Hon'ble Punjab and Haryana High Court while deciding a quashing petition held that in any event (including a marriage ceremony) a sound recording is reproduced without license from the copyrights society would be copyright violation and further narrowly interpreted the words "in the course of any bona fide religious ceremony(marriage)", as under:
"....A sound reproduction by a DJ performing at such an event is surely a function that is connected to marriage. It is not as if a DJ's performance amounts to conducting the marriage. Marriage is definitely different from the functions connected to the marriage...."
The scope of the aforesaid provision has been very strictly and narrowly interpreted by the Hon'ble Courts and restricted the exemption only to Central Government, State Government and local authority.
That Registrar of Copyright vide Notification No. 10-26/2019-CO, dated 27/08/2019, after taking the above provision of Section 52 (1)(za) of the Copyright Act, 1957 in consideration, has clarified that the playing of sound recordings in the course of religious ceremonies, including marriage procession and other festivities associated with a marriage, are permitted under Section 52(1) (za) of the Copyright Act, 1957, and such use does not amount to infringement of copyright and hence no license is required to be obtained for the said purpose. The Notification ends the ambiguity regarding the need of the licenses for playing of sound recordings in marriage procession and other festivities associated with a marriage.
The said notification can be accessed at the link given below:
However, the issue does not end here. The life of the aforesaid Notification was not much and the same has been set aside by the Hon'ble Punjab and Haryana High Court vide its judgment 19.05.2022 in the case titled as "Novex Communications Private Limited vs. Union of India and Ors.", CWP No. 28758 of 2019 (O&M), MANU/PH/1091/2022, and now the position stands as it stood before the issuance of the Notification.
The controversy does not end here.
Considering Section 52 (1) (za) of Copyright Act 1957, the Government of India again issued a public notice no. No. P-24029/56/2023-IPR-VII dated 24thJuly 2023, wherein it has been clarified that marriage procession and other social festivities associated with marriage fall within the ambit of Section 52 (1)(za) of the Copyright Act, 1957 and directed the Copyright Societies to refrain from entering into acts which are in contravention to Section 52 (1) (za) of Copyright Act 1957, in order to avoid any legal action.
The said notification can be accessed at the link given below:
In view of the public notice no. No. P-24029/56/2023-IPR-VII dated 24thJuly 2023, playing of sound recordings or live performance of songs in marriages and other social festivities associated with marriage without obtaining licenses should not be considered as copyright infringement.
However, what qualifies as social festivities associated with marriage is still not clear. While dealing with the aforesaid question, the Delhi High Court in the case of Ten Events and Entertainment vs. Novex Communications Private Limited & Ors. (Neutral Citation Number 2023:DHC:3269) observed as under:
"What celebrations, and what festivities, would qualify as ?social festivities associated with the marriage? is clearly a pure question of fact, to be decided on a case to case basis. There cannot, in my view, be any strict yardstick by which one could definitively regard a particular function, or ceremony, as a ?social festivity associated with the marriage. One of the questions that was raised during arguments was whether, for example, a 25th wedding anniversary would qualify as a ?social festivity associated with the marriage?. The question, in my view, is not capable of an easy resolution. If and when a Court is seized with the issue on merits, the Court would have to expound on the nature and extent of ?association which would suffice for the festivity to be regarded as associated with a marriage. Should festivities associated with the marriage be limited to the festivities which take place immediately prior to a marriage or immediately pursuant thereto? Would they, for example, include a reception which is held a month after the marriage has taken place? Would the silver, or gold, or diamond wedding anniversary, qualify as a social festivity associated with the marriage? What is the difference between ?social festivities and other festivities associated with the marriage? I highlight these issues only to underscore the position that the application of the Explanation to Section 52(1)(za) may involve consideration of various factors, which would, in turn, depend on the facts of the case before the Court, including the nature of the event, the nature of the festivity, and the extent and nature of the association between the festivity and the marriage.
In the said case, the Hon'ble Court held that in order to play the recordings in festivities associated with the wedding without copyright infringement, it needs to be demonstrated that
- the festivity in question is a ?social festivity
- the festivity is associated with the marriage and
- the festivity is bona fide."
It is obvious that this saga of dispute will not end here. It is likely that the Copyright Societies will again approach the Courts challenging the public notice no. No. P-24029/56/2023-IPR-VII dated 24thJuly 2023. Further, what all functions are covered under the aforesaid public notice is still not clear.
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Mobile No.: +91 9810081079
Rajat Jain, Advocate
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Mobile No. 9953887311
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