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Fair Use of Music in Marriage Ceremonies in larger public interest: Expert Opinion Sought by Delhi High Court

June 22, 2022
Dancing-people

By Vikrant Rana and Priya Adlakha

Brief Background

Songs being played at religious ceremonies including wedding and other associated ceremonies such as Sangeet or Mehndi, have become a recurring theme and a trend across the country. The same has from time to time, given rise to an issue pertaining to the rights of the artists in the music industry, such as lyricists, music composers, singers, sound recording producers and owners. The Indian Courts have previously given narrow interpretation of explanation given in Section 52(1)(za) of the Copyright Act, 1957[1] which pertains to ‘fair use’, in the cases titled as Phonographic Performance vs. State Of Punjab[2] and Devendrakumar Ramchandra Dwivedi vs. State of Gujarat and Ors.[3].

Lately, it was also clarified in the Public Notice[4] issued by the Copyright Office in 2019, 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.’

The issue was again brought up before the Hon’ble Delhi High Court for its consideration in the commercial suit titled “Phonographic Performance Limited vs LookPart Exhibitions and Events Pvt. Ltd.[5]

Brief Facts of the Case

The Plaintiff, Phonographic Performance Limited, in the present suit was engaged in the business of issuing licenses for public performance and communication to the public of sound recordings on the basis of assignments that had been granted to it by its member record labels, the copyright owners of the sound recordings.

Whereas, the Defendant, Lookpart Exhibitions and Events Pvt. Ltd., is an event management company, providing services, including DJ services for various social events such as weddings.

The Plaintiff sought an interim injunction in the present suit, stating that the Defendant ought to have obtained a license for playing music at various social events that are managed and organized at commercial venues, whereas the Defendant relied upon the Explanation as given under Section 52(1) (za) to argue that it was not required to do so.

At the first hearing of the injunction application in March 2022, Hon’ble Ms. Justice Prathiba M. Singh, IP Division, Delhi High Court, subject to Defendant depositing a sum of Rs. 1,00,000, with the Registrar General of the High Court in a fixed deposit, did not grant an ad-interim injunction in favour of PPL at this stage, and granted time to the parties to complete the pleadings.

Appointment of an Expert

When the application came up for arguments on May 11, 2022, the Plaintiffs and Defendants relied upon certain judgments in their favour, The Hon’ble Court was of the opinion that in the Indian context, music is an integral part of any wedding or marriage ceremony. The kind of music played typically ranges from devotional or spiritual music for the purposes of the marriage ceremony to popular music in various languages. Apart from the actual marriage ceremony itself, there are other ceremonies such as tilak, sagan, cocktail parties, dinner, mehndi, sangeet, etc., which have become an integral part of the wedding festivities. In all such ceremonies also music is played.

The learned Judge while keeping in mind the importance of the issue at hand and the fact that it shall affect the society at large, invoked the Rule 31 of the newly introduced Delhi High Court Intellectual Property Rights Division Rules, 2021, which reads as follows:

31. Panel of Experts

The Court may, in any IPR subject matter, seek assistance of expert(s) (including individuals and institutions) relating to the subject matter of the dispute as may be necessary. The opinion of the expert shall be persuasive in nature and shall not be binding on the Court. The IPD may maintain a panel of experts to assist the Court which panel may be reviewed from time to time. The remuneration of the expert(s) shall be decided by the IPD. Prior to appointment, a declaration will be provided by the expert that he or she has no conflict of interest with the subject matter of the dispute and will assist the Court fairly and impartially.

Provided that the protocol to be followed by such expert(s) shall be prescribed by the IPD, from time to time.”

 

And appointed Dr. Arul George Scaria, Associate Professor of Law and Co-Director, Centre for Innovation, IP and Competition, National Law University, Delhi, as an expert to assist the Court and file a written note of submissions on the issue, keeping in mind the legislative history of Section 52 (1) (za) of the Copyright Act, 1957, and the relevant law from India and abroad pertaining to the question of fair use and fair dealing.

Recently, Indian Performing Rights Society Ltd. (IPRS) which is another stakeholder in this issue, being a registered copyright society under the Copyright Act, 1957 to collect royalties for the use of the licensed music on behalf of its members, filed an application under Order 1 Rule 8A in the captioned suit, as an intervenor. The aforesaid application along with the injunction application is now listed for hearing before the Hon’ble Court on July 06, 2022 for hearing.

 

Author’s Comment:

Particularly, to identify one of the key issues, one needs to look at Section 52(1) (k) which excludes hotels and other commercial establishments from the ambit of fair use. Therefore, the question at hand would be whether the use of music under Section 52 (1) (za) also fall under this restriction or would it be exempt from this restriction as long as it is being used for a bonafide religious ceremony? This issue has also been briefly discussed in the article titled “does playing music in marriages and religious ceremonies amount to copyright infringement[6]”.

It will be interesting to see whether the provisions can be construed in a manner to balance out both the public interest as well as the interest of the stakeholders, especially keeping in mind the Indian Context.

With the ever increasing complexities and technicalities in IP disputes, having a subject matter expert as an aide to the Hon’ble Court is crucial for proper adjudication as well as to ensure that the adequate technical and subject matter knowledge is at the disposal of the Hon’ble Court.

[1] The Copyright Act, 1957 (Inserted into the statute by virtue of The Copyright Amendment Act 1994 w.e.f.10th May 1995)

[2] MANU/PH/2110/2011

[3] MANU/GJ/0440/2009

[4] https://copyright.gov.in/Latest_Notice37.aspx

[5] CS(COMM) 188/2022

[6] https://ssrana.in/articles/does-playing-music-in-marriages-and-religious-ceremonies-amount-to-copyright-infringement/

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Shivam Issar, Intern at S.S. Rana & Co. has assisted in the research of this article.

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