Scope of Section 52 of the Copyright Act, 1957
The Copyright Law in India enumerates certain set of acts which constitutes fair dealing/ fair use of the copyrighted works, as mentioned under Section 52 of the Copyright Act 1957 (hereinafter “the Act”). Various situations mentioned under Section 52 of the Act, include use of work in educational institutions, residential buildings for its residents, in clubs and similar organizations for non-commercial audiences etc. However, one such circumstance which even though clearly mentioned but was open to confusion is sub-clause (za) which states:
(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 including a marriage procession and other social festivities associated with a marriage;]
The explanation clearly mentions that marriage procession and other social festivities associated with marriage is included in the definition of religious ceremony under sub-clause (za). However, the obscurity over the claim persists with the incessant use of multiple copyrighted works in a ceremony without payment of any royalty for the use. In order to address this issue, various representations by the stakeholders seeking clarification on whether use of sound recordings in course of marriage and related functions, will require license from the respective copyright societies, was made to the Ministry of Commerce and Industry (Government of India) and Copyright Office.
In light of the above, a Public Notice, dated August 27, 2019 has been issued by Copyright Office, providing a clarification as under:
“In view of the provision contained in Section 52(1) (za) of the Act, read with the explanation thereto, it is evident that the utilization of any sound recording in the course of religious ceremony including a marriage procession and other social festivities associated with a marriage does not amount to infringement of copyrights and hence no license is required to be obtained for the said purpose.”
Hence, the Government has now clarified that use of sound recording for marriage and related functions, is a non-infringing activity under Section 52 of the Act and therefore, there is no requirement for obtaining license from Copyright Owner or the Copyright Society. The public notice brings a clarity and tries to remove any confusion that existed with reference to the said provision.
However, this clarification gives rise to another issue i.e., Whether the utilization of sound recording in course of any marriage or related functions, organized in a hotel or commercial premises, will require to obtain a license? In order to understand the intention behind this question, reference to Section 52(k) is made, which states:
(k) the causing of a recording to be heard in public by utilising it,—
(i) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or
(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit;
Thus, in view of the aforesaid provision under clause (k), the recording to be heard in public must be done in an enclosed room or hall for common use of resident, or as part of activities of club or similar organizations, provided that it is not a hotel or commercial establishment or organization established/ conducted for profit. Therefore, the above provision excludes hotels and other commercial establishments like banquet halls wherein ceremonies like marriage and other gatherings are run for profit, from the ambit of fair act of recording being heard in public. Hence, in light of the provision under the present public notice clarifying that the no license is required for use of sound recording for marriage and related functions, still does not address the contentious issue entirely. Even though the public notice clearly mentions that in marriage and related functions, the use of sound recording is protected under Section 52, then whether such protection will also extend to such use for the marriage and related function being organized in a hotel or any related commercial establishment is still uncertain.
An opinion in this regard may be concluded that where there is an express exclusion of hotels and commercial establishments from the use of recording to be heard in public, then such restriction may also extend to marriage and related ceremonies. Since the public notice does not render a clarification about the premises where such recordings will be accepted as fair act, playing of sound recordings in marriage and related functions in hotels and commercial establishments may be a cause of concern for the copyright holders.