WEDDING SANGEET: FAIR USE OR COPYRIGHT
Author: Akanksha, II year of B.A.,LL.B.(Hons.) from Amity University, Jharkhand
Music being an essential ingredient of Indian culture and none of the wedding can get completed without music. Being this as an exception of fair use of music at social festivities and marriage which are associated with marriage is expressly being mentioned under Section 52(1)(za) of The Copyright Act, 1957 and further an amendment of the same that is The Copyright Act, 2014 which was being effective from the year 2015. Even though, when the management team of the event management companies are being hired to look after the ceremony and thus, are earning commercial profits for organising social festivities and marriage ceremony which use music inclusion of DJs services and that too without obtaining license for such kind of use, thus under the exception of fair use does the same qualify for? It is the need of the of the hour that particular establishments should be made to more aware about the facts, figures and the procedures of the law regarding the use of copyrighted music in the marriage ceremony. In the matter of Phonographic Performance Limited v. Lookpart Exhibitions and Events Pvt. Ltd. this interesting question was being raised before the Hon’ble High Court of Delhi.
In the recent case of Phonographic Performance Limited (PPL) v. Lookpart Exhibitions and Events (LEE) the question arised that whether playing music at weddings whichis not licensed pertains to copyright infringement. This very issue came up in the Delhi High Court and thus Jurisprudence can be examined in this issue and to pinpoint the accurate rule which needs to be followed, under the help of The Copyright Act, 1957 with some of the important case laws.
What is being said by the Precedents and Statutes
Under Section 52 of The Copyright Act, 1957 it is mentioned that the unlicensed use of the copyright of the owners work is to be considered under copyright infringement. The Section 52 is an extensive section which mentions the anomalyto the infringement rule (fair use), and the sub section (1)(za) mentions that “the performance of dramatic, musical or literary work or the communication to the public of this type of work or even of sound recording in the term of any bona fide religious ceremony” is the one which will not be same.
The clarification to the sub section directly says that marriage is a religious ceremony, and therefore at the first look, there should not be any issue playing unlicensed music, but it’s not so simple at all. Since, law is specifically fact dependent and thereby each and every case of “fair use” should be judged on a case – to - case basis.While trying to answer all the above questions completely, the statute (Copyright Act) turns out to be scanty, pertinent precedents, even though it is limited but still it provides help to a broader extent.
There should not be any need to get any license as in the tradition of Gujrat of Garba/Dandiya and even it was celebrated before the Copyright Act existed, as stated by the petitioner. The petitioner also mentioned that these types of celebrations and folk dance did summed up together to form a part of religious heritage of the state and therefore all the action by the respondent was contrary to law as his demands were infringed by Section 52(1)(za)[i].
It was held by the court in the above case that the Section 52(1) of The Copyright Act, 1957 which basically indicates the non – dramatic works and non – profit performances of music. To exempt the live performances of this type of work when there is no commercial intent, no entry fee as they are being utilised for educational, religious, or philanthropic purposes and not for the personal cause or any financial benefit is the basic idea.
The broader portion of the circumstances falling within the scope of the doctrine of fair use, in the Section 52(1), and therefore whether any act is exempted from the copyright infringement, laying special emphasis on the facts of each case, needs to be adjusted on a case–to–case basis. As the petitioner could not represent any clue which showed that his rights were infringed or affected by any anticipated action by the respondent and thus the petition was ultimately dismissed.
In the very next recent case of Novex Communications Pvt. Ltd. v. Union of India & Ors., the government (respondent) issued public notices, before the Punjab and Haryana High Court, interpreting Section 52(1)(za) of The Copyright Act, 1957 and notified that no license would be required for utilising the sound recordings in the religious ceremonies like marriage and even the different social festivities which are associated with marriage.
Through a writ petition the petitioner challenged the above notices that the government do not hold any authority to manipulate the law as it is specifically a legislative function, which needs to be performed by the parliament and in rare cases the courts. Whether the playing of music by DJs in a marriage and that too without a license was a case of copyright infringement is a secondary question which arose. Therefore, what is the exact position of this type of performances in a marriage via Section 52(1)?
To answer the above question, the court said that and also followed the ratio in the very famous case of Phonographic Performance Ltd. v. State of Punjab (2011), in which it was held that “Marriage is entirely a different entity from those functions which are connected to the marriage and also the tariff regime applies to the performances at those functions and even it is having a religious overtone”.[ii]
The court also mentioned that the notices which is being issued by the government is having a broad interpretation of the Section 52 of The Copyright Act, 1957 can be easily manipulated for the purpose of the commercial gain which is under Section 54 of The Copyright Act, 1957 and thus it will lead to the infringement of copyright owner’s rights which is under the Section 55 of The Copyright Act, 1957 which will initiate the civil proceedings. In the Phonographic Performance case apart from being a violation of the doctrine of “separation of powers”, the notices were in contravention to the judgement which was issued by the same court in the case.
For the interpretation of Section 52 of The Copyright Act, 1957even the Courts have remained vague to some extent in regard to the interpretation. No interpretation had been established for the Section 52(1) of The Copyright Act, 1957. DJ performances and the other similar events in a marriage are not covered under Section 52(1)(za) of The Copyright Act, 1957 in the case of Phonographic. To establish all what all are the allied acts to a religious event or the ceremony will be included as the exception for the copyright infringement and for thatguidelines to be made, preferably by the legislature rather than of the courts.
Whether it would fall under Section 52(1) of The Copyright Act, 1957 the courts are stuck with an inefficient test of commerciality of the performance and this is ineffective. Let’s take an instance, according to Phonographic Performance, almost all marriages contain performances of unlicensed music in form that, is commercial in nature.
Under Section 52(1)(za), performance of unlicensed music at the common events can be considered as fair use. The Indian Copyright Office has recently clarified the fact in a Public Notice which is numbered 10–26/2019-CO that clarifies that fact, licenses are not being required for the utilisation of sound recordings in the cases like of social festivities or marriage ceremony. The Notice further clarifies the fact that utilisation of any sound recording in a religious ceremony like of marriage and also the other social festivities which are being associated with that of marriage does not amount to the copyright infringement and thus, as a result it does not require a copyright license. For the further time being, the Delhi High Court actually did a prudent thing in the case of Phonographic Performance Limited v. Lookpart Exhibitions and Events by appointing Dr. George Scaria as the expert to help it adjudicate, in the process to clarify the issue.
Later, a noticewhich was by the Ministry of Commerce and Industry and cleared that any of the sound recording which is made during religious ceremonies including marriage and also the other festivities which is associated with that of marriage does not refer to the infringements of copyright and therefore no license is needed to be there for the said purpose.