It is necessary to refer the relevant provisions under the Copyright Act, 1957, relating to the sound recordings, as provided under the Copyright Act, 1957, before retorting to the above query:
Section 2 (xx) of the Copyright Act, 1957 defines sound recording, as under:
"sound recording" means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced;
Section 13 of the Copyright Act, 1957 states the works in which copyright subsists. The relevant extract of section 13 is as under:
(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording.
Section 14 of the Copyright Act, 1957
Meaning of copyright.-For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(a).....
(e) in the case of a sound recording,-
(i) to make any other sound recording embodying it 1 [including storing of it in any medium by electronic or other means];
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;
(iii) to communicate the sound recording to the public.
Under Section 27 of the Copyright Act, 1957, a copyright in sound recordings shall subsist until sixty years from the beginning of the calendar year next following the year in which the sound recording is published.
Section 51 of the Copyright Act, 1957 defines the situations when copyright is considered to be infringed.
Copyright in a work shall be deemed to be infringed-
- when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
- does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
- permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or]
- when any person-
- makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
- distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
- by way of trade exhibits in public, or
- imports into India,
any infringing copies of the work:
Section 52 of the Copyright Act, 1957 enlists certain acts which do not constitute an infringement of Copyright. Specifically, Sub-section (1) (za) of the aforementioned section, states that:
"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."
That Registrar of Copyright vide Notification No. 10-26/2019-CO, dated 27/08/2019, after taking the above provisions in consideration and has clarified that the playing of sound recordings in the course of religious ceremonies, including marriage procession and other festivities associated with a marriage, are permitted under Section 52(1) (za) of the Copyright Act, 1957, and such use does not amount to infringement of copyright and hence no license is required to be obtained for the said purpose.
The said notification can be accessed at the link given below:
http://copyright.gov.in/Documents/PublicNotice37.pdf
Interestingly, the issue does not end here.
In the case of Phonographic Performance vs. State Of Punjab, (Civil Writ Petition No.7772 of 2011 (O&M))(https://indiankanoon.org/doc/1370731/ ), the Hon'ble Punjab and Haryana High Court while deciding a quashing petition held that in any event (including a marriage ceremony) a sound recording is reproduced without license from the copyrights society would be copyright violation and further narrowly interpreted the words "in the course of any bona fide religious ceremony(marriage)", as under:
"..A sound reproduction by a DJ performing at such an event is surely a function that is connected to marriage. It is not as if a DJ's performance amounts to conducting the marriage. Marriage is definitely different from the functions connected to the marriage.."
Furthermore, in the case of Devendrakumar Ramchandra Dwivedi vs. State of Gujarat and Ors. (24.09.2009 - GUJHC), MANU/GJ/0440/2009, the Hon'ble Gujarat High Court has observed that 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 and held as under:
"The Central Government State Government or any local authority can arrange the performance of a literary, dramatic or musical work, officially which will not amount to infringement of copyright or also in connection with a bonafide religious ceremony like Navratri Pooja, Arati etc. so also marriage procession or other social festivities associated with a marriage, would not amount to infringement of copyright."
The Hon'ble Court in a way has limited the applicability of Section 52(1)(za) only to Central Government, State Government and local authority and to non-commercial purpose.
However, the aforesaid judgments are prior to the Notification No. 10-26/2019-CO, dated 27/08/2019 issued by Registrar of Copyright wherein these aspects have been clarified. Pursuant to the Notification, the Copyright societies have stopped objecting to the use of the sound recordings in the marriage function. But there is still ambiguity on the other functions like Mehandi, Sangeet, engagement, wedding anniversary and reception parties etc., and as per Copyright societies, license is required for using the sound recording in such functions.
In view of the on-going ambiguity and conflicts between the copyright societies and hotels, banquets, etc., it is much required for the Copyright Office to issue clarification regarding the scope of the other festivities associated with a marriage to put an end on such ambiguity.
BY
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
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And
Rajat Jain, Advocate
Email id: rajatjain@vaishlaw.com
Mobile No. 9953887311
LinkedIn: https://www.linkedin.com/in/rajat-jain-75772398/
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