Executive Can't Exempt Use Of Copyrighted Sound Recordings In Marriage Functions, "Fair Use" To Be Decided In Facts Of Each Case: Punjab & Haryana HC

Justice Raj Mohan Singh was dealing with a challenge made against a public notice issued by the government interpreting the provision contained in Section 52(1)(za) of the Copyright Act 1957 in a manner that utilization of any sound recording in the course of the religious ceremony including a marriage procession and other social festivities associated with marriage, does not amount to infringement of copyrights and hence no license is required to be obtained for the said purpose.

The impugned notice interprets Section 52(1)(za) of the act. Section 52(1)(za) of the Act reads as under:

(za) 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 includes a marriage procession and other social festivities associated with a marriage;]

The court observed that such public notice is also violative of the Doctrine of Separation of Power as it would lead to the executive usurping the legislative power of enactment and the judicial power of interpretation. The public notice also infringes the right of a copyright holder under Articles 13, 14 and Article 19(1) (g) of the Constitution of India. It seeks to abridge the protection granted by the copyright Act which is unsustainable, the Court said.

The court also highlighted that there was a possibility that the impugned notice/letter may be misused by notorious elements to enrich themselves. It may further limit action by the police authorities in case of infringement which is otherwise an offence under Section 63 of the Act.

The court stated that the issue of requirement of obtaining a license for playing the sound recording in social functions organized during marriages was no longer res integra. The court relied on the decision of the court in M/s Phonographic Performance Limited v. State of Punjab (2011) where the court had held that even though sound reproduction by a DJ in a religious ceremony was a function associated with marriage, it cannot be said that the performance amounts to conducting the marriage. The court observed that marriage is different from the functions connected with marriage. Thus, the tariff regime was applied to the performance of such functions connected to marriage even if it has a religious undertone.

The court also discussed the decision of the Gujarat High Court in Devendrakumar Ramachandra Dwivedi v. State of Gujarat and others (2009) where the court while explaining the fair use doctrine under the Act held that when the use is for non-commercial purposes, the same can be exempted from liability under the Act. The court had observed as under:

"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."

Thus, the court observed that whether a use of copyrighted work falls within the exceptions under the act has to be decided according to the facts of the case and a general interpretation as provided by the respondent through the impugned notice was impermissible.

Also Read: Delhi High Court Appoints Expert To Assist On Fair Use Of Sound Recordings In Marriage Ceremonies U/S 52(1)(za) Of Copyright Act

Case Title: Novex Communications Private Limited v. Union of India and another

Case No: CWP No. 28758 of 2019

Citation: 2022 LiveLaw (PH) 115 

Counsel for Petitioner: Senior Advocate Mr Gaurav Chopra, Mr HDS Bains, Mr J.S Dhillon

Counsel for Respondent: Mr Sudhir Nar, Senior Panel Counsel for Union of India

Click here to read/download the judgment