Recently, the issue of using sound recordings during wedding festivities popped up again before the Delhi High Court in Canvas Communications v. PPL. SpicyIP intern Reva Satish Makhija discusses the dispute and gives a nuanced understanding of the oscillating debate between the executive and judiciary on this issue. Reva Satish Makhija is a 3rd Year law student at Jindal Global Law School, Sonipat. In her free time, she enjoys collecting old Bollywood movie posters.
Wedding Bells or Warning Bells? PPL Refuses to Provide NOC to Play Sound Recordings at Sangeet, Cocktail Party
By Reva Satish Makhija
While the wedding season in India has come to a close, the long-drawn copyright issues in using sound recordings during wedding ceremonies (see here, here and here) are still as dynamic as ever. The latest order by the Delhi High Court in Canvas Communication vs Phonographic Performance Limited on 25 January, 2024, is another addition to the aforementioned saga and has the potential to once again stir the debate on the extent of the exemption under Section 52(1)(za) of the Copyright Act, 1957 concerning the use of sound recordings during wedding ceremonies.
The Order
In this case, the plaintiff, an event management company, was hired to organise three functions in February 2024 in Delhi, namely- (a) the pre-wedding Sangeet, (b) the marriage solemnization ceremony and (c) the post-wedding cocktail party. Therefore, the plaintiff requested the defendant to hand over a No Objection Certificate (NOC) for the use of its sound recordings in each of the three ceremonies; the defendant consequently refused this request. Subsequently, the plaintiff moved the court for a decree of declaration for the use of the sound recordings, primarily relying on the notification dated 24th July, 2023 issued by the Department for Promotion of Industry and Internal Trade (DPIIT). The plaintiff argued that the notification clarifies that the definition of “religious ceremony” as exempted under Section 52(1)(za), also includes within its ambit “a marriage procession and other social festivities associated with marriage”. The plaintiffs have further asserted that the ‘Sangeet’ and ‘Cocktail Party’, are well within the scope of “social festivities associated with a marriage”, and are hence protected by the exception.
Opposing this, the defendant referred to a 2022 judgement by a Single Judge of the High Court of Punjab & Haryana in Novex Communications Private Limited v. Union of India and Anr., arguing that the order quashed an exactly similar 2019 notification by the Copyright Board (read Devika’s take on it here) as the DPIIT one. They argued that the exception extends only to bonafide religious ceremonies, such as the actual solemnization of marriage- and not the associated wedding festivities conducted by the plaintiff in commercial premises. (You can find Devika’s take on whether the location of the festivity and derivation of profit affects the requirement of a license for the use of a sound recording, here.)
Though the court did not issue a finding on the merits of the case, it directed the plaintiff to deposit 1 lakh with the defendant to balance “the equities”. The defendant on the other hand submitted that it shall pay back the deposit along with the interest in case the plaintiff succeeds in the suit.
The Shifting Courtroom Saga: A Brief Chronology
While the order in and of itself may not seem significant, since it does not delve into deciding the merits of the case, it seems to be an important one with the potential to finally settle the dispute once and for all.
Readers will recall that the scope of Section 52(1)(za) has been a subject matter of many disputes over the last 4 years. As early on in 2019, a public notice (discussed by Devika in her post linked above) by the Copyright Office, reiterated the exception provided for in Section 52(1)(za), indicating that despite statutory “clarity”, the increasing rise of infringement claims may have necessitated the release of this notice. However, the 2022 judgement by the Punjab and Haryana High Court invalidated the public notice for being ultra vires.
Then, in May 2022, in a suit before the Delhi High Court, once again involving Phonographic Performance Limited, the court appointed Prof. Scaria an “expert” under Rule 31 of the Intellectual Property Rights Division Rules, 2022 to assist in the interpretation of the impugned provision. While Prof. Scaria filed his comments (which have been made public, see here) since the dispute was eventually amicably settled between the parties, the court could not pass a judgement on merits incorporating his findings.
The issue came to limelight again in December 2022, when a circular issued by the Police Commissionerate, Jaipur offered some respite to wedding planners and all concerned petitioners. The circular communicated that Section 52(1)(za) validly exempted the need for a license for the use of sound recordings in marriage ceremonies and connected events. A detailed post analysing the impact of this communication may be found here. Interestingly though, Rajasthan High Court, in January 2023 taking note of the aforementioned order of the Punjab and Haryana High Court quashing the 2019 notification, stayed the operation of the 2022 circular as well.
A Delhi High Court verdict was pronounced in June last year on a similar issue, which Anjali argues (here) as an erroneous and problematic interpretation of the provision since the judgement had overtones of moral policing. The order mainly focused on the apparent, inappropriate use of Bollywood music in marriage functions and also included a flawed conflation of the term ‘bonafide’ with the absence of fraud or deceit. Eventually, the bench refused to arrive at a conclusive finding on how Section 52(1)(za) should be read, once again placing the matter at a point of stagnation.
The matter of interpreting Section 52(1)(za) is up for adjudication once again and this time includes the question of differences between the Copyright Board’s 2019 Notification and DPIIT’s 2023 Notification for consideration. One difference that may be found between the two notifications, is that where the Copyright Board’s 2019 notification merely reiterates the provision, the 2023 DPIIT’s notification directs Copyright Societies to not contravene the provisions of Section 52(1)(za), and also encourages general public to refrain from “acceding to any uncalled demands from such individual/organisation/copyright society which violate Section 52(1)(za)”. In my view, this is reflective of the government attempting to reiterate its stance in the 2019 notification and explicitly state its disagreement with the 2022 judgement by the Punjab and Haryana High Court. Hopefully, the necessary clarity on this issue will follow on the next day of hearing – the 1st of April, 2024.
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- Source: https://spicyip.com/2024/02/wedding-bells-or-warning-bells-phonographic-performance-limited-refuses-to-provide-noc-to-play-sound-recordings-at-sangeet-cocktail-party.html
