Introduction
Have you ever pondered over the fact that why any YouTube channel while reviewing any movie mutes that portion of the video where the music or song is played? Along with muting the whole song they display a message stating that the portion has been muted to avoid copyright infringement.
What exactly is this copyright infringement? Before answering this question, we need to first understand the concept of copyright. Copyright is a type of intellectual property that provides an extraordinary right to the authors over their original literary and artistic work. The only two criteria are that, the work should be original not copied and should be tangible meaning it should be present in a physical state1.
Music is also covered under the Copyright Act, providing protection to singers, producers and composers against unauthorized use of their original work.
Copyright infringement of music means the use of copyrighted music (inter-alia, songs) by anyone without the consent or permission of the copyright owner. If there is found to be an infringement of copyright by any person, then the copyright holder can sue the said person and demand compensation for the same.
For the purposes of this blog, we will be restricting ourselves to such seemingly innocuous infringements of copyrights in two distinct aspects. Firstly, commercial use of copyright material such as clubs, pubs or restaurants and secondly, household uses such as those of marriage ceremonies.
Commercial Use of Copyrighted material- legal or illegal?
It is a common practice for clubs and restaurants to use music in their ambience to entertain their customers. However, it is unknown to many that playing music that is copyrighted in clubs and restaurants is illegal since it is an infringement of copyright and can attract liability. According to the Copyrights Act, if any pre-recorded song or music is being used for commercial purposes, in public space, then it attracts liability for copyright infringement2.
So, does this mean that clubs and restaurants can never play music for the entertainment purposes of their customers? The answer to this question is more nuanced than meets the eye at first glance. In order to avoid liability for infringement of copyright, it is imperative for them to have obtained a licence called the public performance licence before using any copyrighted song. This licence is an agreement between the user and the owner to grant users the right to authorized use of music (including songs) in public spaces3. It is for this purpose that, copyright societies are formed which apart from issuing licences, collect royalties from users for the use of the author's work and allocate the same to the copyright holders. It is mandatory under section 334 of the Act, that the societies must be registered, after which they have the authority to issue licences. At present, there are 3 copyright societies in India -
- Indian Performing Rights Society (IPRS) – It is a union of artists, singers, composers and producers of copyrighted music and acts as their representative. It collects royalties on behalf of its members and then distributes it among its members after the expenses of administration are subtracted5.
- Phonographic Performance Limited (PPL) – It is the largest organisation of the country that grants radio broadcasting rights and public performance rights to various music labels including Sony Music Entertainment, T-series, etc. It grants licences to commercial establishments like restaurants, bars, clubs, etc. for any public performance by obtaining royalty for the same purpose6.
- Indian Singers' Rights Association (ISRA) – obtains royalty on behalf of Indian singers as a registered copyright society and grants licences to users for using the work in commercial space7.
With the help of these societies, the club and restaurant owners can get a valid licence that is the authorization to play the music for which permission has been obtained. This step is going to save them from falling into the pit of copyright infringement suits and avoid hefty penalties. If multiple tracks are being used, then a licence should be paid for each of the songs by paying the royalty fees. The importance of obtaining a licence for copyrighted songs can be seen through the case of Range Road Music, Inc. v. East Coast Foods, Inc.8, where several music companies sued a restaurant for copyright infringement for playing their songs without a licence. Initially, the restaurant refused an offer of licence from the American Society of Composers, Authors, and Publishers (ASCAP), but it was later found out by an independent investigator hired by ASCAP that eight of their songs were being performed at the restaurant. As a result which, a suit was brought against the restaurant where the court found the restaurant guilty leading to paying damages and the music company's attorney's fees9.
This case underlines the importance of obtaining a licence for copyrighted music before playing the same at any commercial establishment. In the context of this case, it points to the fact that even if the owners of commercial establishments are unaware of infringing anybody's work, they will be still held liable since ignorance is not a defence to avoid copyright infringement. The case clearly establishes the fact that you can play music publicly after obtaining a licence for the same in order to avoid legal repercussions. We also see that ASCAP appointed an independent investigator pointing to the fact that these licencing organizations actively monitor and enforce their member's right. Therefore, businesses should be cautious that their non-compliance can be detected and can involve them in litigation. The ruling also highlights the financial risks associated with infringement where the restaurant had to pay not only damages but also the fees of the music companies' attorney and this amount could be significantly higher than obtaining a licence by paying royalty fees in the first place. Moreover, this case serves as a reminder to everybody to comply with the Copyright laws for the commercial use of music.
Similarly, in December 2023, the Bombay High Court restrained around 100 commercial establishments including bars, pubs and hotels for playing copyrighted songs without obtaining a licence or permission from PPL owing to the apprehension of massive copyright infringement on New Year's Eve10.
This case points to the legal compliance of establishments to obtain permission for public performance of music that is copyrighted and that its failure would result in legal consequences and potential penalties. It also highlights the need for awareness among establishments about copyright laws and licencing requirements so that they are aware of their responsibility and avoid unintentional infringement. This action by the High Court sends a clear message to all the commercial establishments across the country that non-adherence to copyright laws will be met with legal consequences.
Both cases point out to the fact that how important it is for commercial establishments like clubs, restaurants or pubs to gain a licence giving them the permission to play music that is copyrighted in order to avoid copyright infringement else it would be illegal for them to play music in absence of a licence.
Therefore, playing of copyrighted music in clubs and restaurants is an infringement of copyrights if the same is being used for commercial purposes without obtaining a licence from a credible source.
Household use of copyrighted material (such as in weddings) – legal or illegal?
Earlier playing copyrighted music in non-commercial settings such as weddings and such was also brought under the umbrella of copyright infringement even though the Copyright Act stated that such functions are exempted. However, the copyright societies still kept on demanding licence fees for the copyrighted songs. This issue was clarified by the Department of Promotion of Industry and Internal Trade (DPIIT) by issuing a public notice. The notice pointed towards Section 52 (1) (za) of the Act11 which states that use of copyrighted songs in religious ceremonies or any official ceremony conducted by any local body or any government whether central or state, would not be regarded as an infringement of copyright. The notice stated that marriages and other functions associated with marriages come under the ambit of religious ceremonies. Therefore, the use of copyrighted music in marriages and other associated functions will not amount to the infringement of copyright12.
Moreover, the court in the case of Copyright Societies vs. Wedding Planners Association, held that under section 52 (1) (za) of the Act13, the term religious ceremony would also extend to wedding ceremonies and other festivals related to marriage, thereby exempting the users from paying royalties to the copyright societies14.
The court's decision of encompassing weddings and related festivities under religious ceremony highlights the acknowledgement of cultural and societal significance of wedding in the context of religious and social customs. By exempting wedding ceremonies from copyright restrictions, the court has considered the public interest in facilitating and preserving cultural practices associated with weddings. The court recognizes that such events involve the use of copyrighted music and that restricting them may hinder customary practices. The ruling has implications for both copyright societies and wedding planners. On one hand, copyright societies may lose potential royalties from performances at marriage while on the other hand, the wedding planners and couples can get an exemption from paying royalty fees required for obtaining a licence.
So, after the clarification from DPIIT, playing music in wedding ceremonies is not illegal and does not attract copyright infringement, thereby protecting individuals, wedding planners, etc. from getting exploited at the hands of the copyright societies.
Conclusion
Even though music is used as a source of entertainment, it must be noted that unauthorized use of music in the public domain should not undermine the rights and livelihood of the authors, depriving them of their fair compensation. That is when the role of the Copyright Act comes into the picture safeguarding the interests of the authors. There is an urgent need to spread awareness among a vast majority of citizens since many of them are unaware of copyright infringement in public spaces. It is important to guide them as to when obtaining a licence for playing a piece of music is required and when is it not required.
If we look at the use of copyrighted music in commercial establishments like clubs, restaurants and hotels, it would amount to copyright infringement if a licence has not been obtained. Whereas, in the case of religious ceremonies, marriages and other associated ceremonies, any official ceremony conducted by any local body or government either central or state does not require a licence to play copyrighted music and would not attract copyright infringement. This awareness is required to protect individuals and commercial entities from unnecessarily falling into the pit of copyright infringement.
References
'Bollywood Songs Copyright: Playing Bollywood Songs at Wedding Ceremonies Not a Copyright Infringement, Clarifies Govt - The Economic Times' (https://m.economictimes.com/news/india/playing-bollywood-songs-at-wedding-ceremonies-not-a-copyright-infringement-clarifies-govt/amp_articleshow/102162124.cms) accessed 14 May 2024
'Bombay HC Restrains Playing Songs from over 400 Labels in PPL Repertoire at New Year Event' The Times of India (24 December 2023) (https://timesofindia.indiatimes.com/city/mumbai/bombay-hc-restrains-playing-songs-from-over-400-labels-in-ppl-repertoire-at-new-year-event/articleshow/106254383.cms) accessed 14 May 2024
'License To Play Music' (cleartax) (https://cleartax.in/s/license-play-music) accessed 14 May 2024
Muradyan WTCCGLC-D, 'Restaurants and Bars Beware: Failure to Obtain a License to Play a Copyrighted Music May Expose You to Substantial Damages' (Lexology, 16 March 2012) (https://www.lexology.com/library/detail.aspx?g=6d520b0f-60c0-459a-875c-a30ac3eb0f59) accessed 14 May 2024
NETWORK LN, 'Are The Exemptions Prescribed Under Copyright Law Really Being Enforced? Here's What You Need To Know!' (30 July 2023) (https://www.livelaw.in/law-firms/law-firm-articles-/dpiit-copyright-act-society-for-copyright-regulation-of-indian-producers-for-film-and-television-phonographic-performance-limited-ipr-233950) accessed 14 May 2024
Sonal S, 'Music Industry and Indian Laws' (2022) 2.3 JCLJ 1010
'What Is Copyright? Everything You Need to Know – Forbes Advisor' (https://www.forbes.com/advisor/business/what-is-copyright/#what_is_copyright_section) accessed 14 May 2024
'What Is Copyright for Public Performing Right - Vakilsearch' (https://vakilsearch.com/ipindia/copyright-registration/public-performing-rights) accessed 14 May 2024
'Who Are We – IPRS' (https://iprs.org/about-iprs/) accessed 14 May 2024
Footnotes
1. 'What Is Copyright? Everything You Need to Know – Forbes Advisor' (https://www.forbes.com/advisor/business/what-is-copyright/#what_is_copyright_section) accessed 14 May 2024.
2. 'Licence To Play Music' (cleartax) (https://cleartax.in/s/licence-play-music) accessed 14 May 2024.
3. 'What Is Copyright for Public Performing Right - Vakilsearch' (https://vakilsearch.com/ipindia/copyright-registration/public-performing-rights) accessed 14 May 2024.
4. The Copyright Act 1957, s 33
5. 'Who Are We – IPRS' (https://iprs.org/about-iprs/) accessed 14 May 2024.
6. Shreya Sonal, 'Music Industry and Indian Laws' (2022) 2.3 JCLJ 1010.
7. ibid.
8. Range Road Music, Inc v. East Coast Foods, Inc, 668 F 3d 1148 (9th Cir 2012).
9. Weintraub Tobin Chediak Coleman Grodin Law Corporation-David Muradyan, 'Restaurants and Bars Beware: Failure to Obtain a Licence to Play a Copyrighted Music May Expose You to Substantial Damages' (Lexology, 16 March 2012) (https://www.lexology.com/library/detail.aspx?g=6d520b0f-60c0-459a-875c-a30ac3eb0f59) accessed 14 May 2024.
10. 'Bombay HC Restrains Playing Songs from over 400 Labels in PPL Repertoire at New Year Event' The Times of India (24 December 2023) (https://timesofindia.indiatimes.com/city/mumbai/bombay-hc-restrains-playing-songs-from-over-400-labels-in-ppl-repertoire-at-new-year-event/articleshow/106254383.cms) accessed 14 May 2024.
11. The Copyright Act 1957, s 52 (1) (za)
12. 'Bollywood Songs Copyright: Playing Bollywood Songs at Wedding Ceremonies Not a Copyright Infringement, Clarifies Govt - The Economic Times' (https://m.economictimes.com/news/india/playing-bollywood-songs-at-wedding-ceremonies-not-a-copyright-infringement-clarifies-govt/amp_articleshow/102162124.cms) accessed 14 May 2024.
13. The Copyright Act 1957, s 52 (1) (za)
14. LIVELAW NEWS NETWORK, 'Are The Exemptions Prescribed Under Copyright Law Really Being Enforced? Here's What You Need To Know!' (30 July 2023) (https://www.livelaw.in/law-firms/law-firm-articles-/dpiit-copyright-act-society-for-copyright-regulation-of-indian-producers-for-film-and-television-phonographic-performance-limited-ipr-233950) accessed 14 May 2024.
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