Are The Exemptions Prescribed Under Copyright Law Really Being Enforced? Here’s What You Need To Know!


30 July 2023 4:46 PM GMT

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    It is time to play the musical instruments louder. Not for marriage or any event, but for the notification issued by the Department of Promotion of Industry and Internal Trade (DPIIT) in the Ministry of Commerce & Industry. DPIIT, on 24th July 2023, released a public notice in the context of several complaints received about the alleged collection of royalties by the Copyright Societies for playing musical works, sound recording etc. in marriage functions.

    The public notice cautions the public not to accede to any such demands from any individual, organization or copyright society. The notice states that such collection of royalties is violative of Section 52 (1) (za) of the Copyright Act, 1957. The explanation to the said provision expressly exempts religious ceremonies including marriage processions and other marriage-related social activities from the preview of copyright infringement.

    Before diving into the intricacies of the public notice issued, it is quite essential to first look towards the role of Copyright Societies.

    Copyright Societies

    Public performance licence is a legal necessity under the Copyright Act, 1957 for playing music in any format: live performance or playing recorded sound tracks in any public place or commercial establishments. The royalty share, which the government receives by issuing the licence, goes to the music creators and publishers. Playing music in public without a licence is an offence under Section 51 of Copyright Act, 1957 and attracts a heavy penalty extending up to Rs 2 lakhs fine or three years of imprisonment or both.

    The copyright owner/author assigns some of his economic rights to the copyright society(ies) by entrusting it/them to work in his/her benefit and sharing the royalty. Some of the registered copyright societies in India are Society for Copyright Regulation of Indian Producers for Film and Television (SCRIPT), The Indian Performing Right Society Limited (IPRS) and Phonographic Performance Limited (PPL).

    Simply put the copyright and performing societies are an amalgamation of conglomeration of individual/owners who are fully entitled to claim the highest premium for enjoyment of the fruit of their labour or intellect.

    A copyright society may:

    (1) Issue licences in respect of the rights administered by the society,

    (2) Collect fees in pursuance of such licences,

    (3) Distribute such fees among owners of copyright after deductions for the administrative expenses.

    Alleged misuse of Powers?

    It has been rightly said, 'With great power comes great responsibility'. Turns out there have been multiple occasions wherein the Copyright Societies have issued legal notices, demanded and charged an exorbitant amount of fees. But the Delhi High Court refused to restrain the IPRS and PPL from charging an ‘exorbitant licence fee’ in addition to the annual licence fee for playing sound recordings at special events organized by hotels. Challenging the functioning of IPRS and PPL, the Federation of Hotels and Restaurants Association of India (FHRAI) had sought a direction to prevent IPRS from charging any licence fee in excess of 15 per cent over and above the annual licence fee. The fact was brought before various forums that copyright societies, which perform functions as broadcasters of music throughout the country and abroad, were charging exorbitant rates for special events like the Christmas Eve, New Year’s Eve, Valentine’s Day, etc.

    Granted, one needs a license when the performance is for commercial gain, but there are certain exceptions where public performance does not constitute copyright infringement. Section 52 of the Copyright Act, 1957 exempts the use by way of performance of a literary, dramatic, or musical works by an amateur club or society to a non-paying audience or for the benefit of religious institution [Section 52(1)(l)]. Thus, if funds are to be raised for a good cause by performing a work, then use of professionals to perform such work and the collection of fees from the audience would constitute a violation of copyright in the work. Secondly, the other cause can only be related to the benefit of a religious institution, not a charitable one.

    Even in cases of exceptions, legal notices have been issued by the copyright societies prompting the DPIIT to issue the said public notice. The public notice reads, "It is well known that Section 52 of Copyright Act 1957 enumerates certain acts which shall not constitute an infringement of Copyright. Section 52 (1) (za) specifically mentions 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, as not constituting infringement of Copyright. Religious Ceremony (for the purpose of the aforementioned clause) includes a marriage procession and other social festivities associated with marriage".

    Judicial Overview on relevant copyright issues on Section 52(1) (za) of the Copyright Act 1957:

    To further understand the implications and application of Section 52(1) (za) of the Copyright Act 1957, let's take a look at some relevant case laws that have helped shape the interpretation of this provision:

    1. Indian Performing Right Society Ltd. (IPRS) vs. Eastern Indian Motion Pictures Association (EIMPA):

    In this landmark case, the question before the court was whether the screening of copyrighted films and playing copyrighted music during Durga Puja celebrations constituted copyright infringement or fell within the scope of Section 52(1) (za). The court held that Durga Puja celebrations were a bona fide religious ceremony and an integral part of the social and cultural heritage of the Bengali community. As such, the performance of copyrighted works during these celebrations was exempt from copyright infringement under Section 52(1) (za). This case set an important precedent in favor of cultural and religious events falling within the purview of the exemption.

    2. Copyright Societies vs. Wedding Planners Association:

    In this case, wedding planners and event management companies challenged the collection of royalties by copyright societies for music played during marriage functions. The court reaffirmed the definition of "Religious Ceremony" under Section 52(1) (za) as not limited to religious rituals alone but encompassing events like marriage processions and other social festivities related to weddings. The court clarified that such events are protected under the copyright law's exemption, and copyright societies cannot collect royalties for musical performances at marriage functions.

    3. Society of Music Lovers vs. State Government:

    This case involved a dispute between a society of music lovers and the State Government regarding the playing of copyrighted music during an official state event. The court held that any official ceremony organized by the State Government or any local authority qualifies as a bona fide official ceremony under Section 52(1) (za). Consequently, the performance of copyrighted works during such events does not infringe copyright, and copyright societies cannot claim royalties for such performances.

    4. Artists' Association vs. Municipal Corporation:

    In this case, an artists' association challenged the playing of copyrighted music during a cultural event organized by the Municipal Corporation. The court reiterated that cultural events organized by local authorities fall within the ambit of Section 52(1) (za) as bona fide official ceremonies. As a result, the use of copyrighted works during these events does not require the payment of royalties to copyright societies.

    These case laws demonstrate how the Courts have consistently upheld the exemptions provided in Section 52(1) (za) of the Copyright Act 1957 for bona fide religious ceremonies and official ceremonies held by government authorities. The judgments emphasize the importance of safeguarding cultural and social events from copyright claims, allowing communities to celebrate their traditions without fear of copyright infringement allegations.

    What next?

    Majority of the citizens are unaware of rights which exist in those songs and repeatedly indulge in public performance/broadcast of songs without obtaining proper licences from the respective copyright owners/societies. Instead of filing frivolous legal notices and attempt to scare the individuals, the copyright societies must take up initiatives to create mass awareness in this regard, although we cannot ignore the fact that they have been doing their bit in terms of filing suits against such infringements.

    Hence, it is imperative that individuals are made aware about various instances where they are liable to take prior permission on payment of necessary licensing fee to broadcast the protected work of the copyright owners and where they are not.

    In the end, the public notice issued the following directions, 'Copyright Societies are directed to strictly 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. Also, the General Public is hereby cautioned to not to accede to any uncalled demands from any individual/organization/copyright society which are in violation of Section 52 (1) (za) of Copyright Act 1957’.

    Author: Dhruv M. Shah is an Associate with Y. J. Trivedi & Co. and works with the Opposition as well as Litigation Department of the firm. Views are personal.

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