The Indian copyright arena has continued to witness controversy over royalties for songs played during wedding ceremonies and related social events. The root of the tussle between copyright collective management organizations such as PPL and Novex and end users lies in Section 52(1)(za) that exempts works performed or communicated to the public during bona fide religious ceremonies or official ceremonies held by government. The provision, along with the curious explanation (which forms the crux of contentions) is reproduced below:
(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;]
What’s been the centre of contention is the scope of the explanation to the provision. SpicyIP bloggers have extensively covered various judgments, government circulars and public notices (see here and here for instance) that form part of the controversy. Marriages however are not the only subject matter of this provision; other religious ceremonies are as well!
The Delhi HC came close to resolving the wedding question in PPL v Lookpart Exhibitions where Prof Arul George Scaria was appointed as amicus. He presented a detailed report (explainer here) arguing in favour of a broader interpretation of the provision considering the country’s socio-cultural context. However, no resolution came since the case got settled.
In this post I will discuss a recent Bombay HC order in PPL v Yashraj Satwara which, on the surface, is a simple and short copyright infringement order granting ad-interim relief in relation to PPL’s sound recordings. There is however a brief reference to Section 52(1)(za) defence. Let’s see what’s that about!
What Transpired in the Case:
The defendant ran a cafe and used to rent out the commercial premises for different events. PPL’s representative came to know of this Diwali event titled ‘Bollywood Diwali Tamasha’ that was being held there. Important to note that it was a ticketed event. The defendant was sent an email as well as a cease-and-desist notice. The defendant’s reply to the notice was that the event was a private gathering and therefore exempted under Section 52(1)(za) of Copyright Act. Another ground raised was that of the PPL not being a registered copyright society (see here and here for coverage of this controversy).
On the issue of PPL’s right in the sound recordings, the Court acknowledged the existence of assignment deeds in PPL’s favour and the copyright society argument failed. Remember that the BHC’s ruling in Novex v Trade Wings affirmed that registration as a copyright society was not necessary for carrying out licensing activities. The Court also held that the defendant had played PPL’s copyrighted sound recordings and a prima facie case of infringement was thus made out. On the Section 52(1)(za), the Court didn’t say much except that “the same has no application to the ticketed events held in the defendant’s premises” (para 7). And then the Court of course granted ad-interim relief. Since no one appeared on behalf of the defendant despite being served, not much argumentation transpired.
The Black Box that 52(1)(za) is:
I wish to mention that section 52(1)(za) has been a source of fascination for me, owing to the ‘balancing’ of copyright and socio-cultural imperatives that it seeks to achieve. What makes this case more interesting is that it didn’t involve the usage of songs during wedding-related festivities; rather it was a diwali party. As I flagged in the beginning, the mainstream invocation of the provision has been limited to marriages. Therefore I want to raise certain questions and also voice out my thoughts on how the term ‘bona fide religious ceremony’ would be interpreted.
I will get the legislative history out of the way. As Prof. Scaria has discussed in his earlier amicus brief that the exception didn’t see much discussion in the Parliament while it was being introduced through the 1994 Amendment Act (para 41 of submissions). The legislative note to the Copyright (Second Amendment) Bill 1992 states that the exception deals “with bona fide religious and official ceremonies, which it is inappropriate to make subject to copyright”. Well, this doesn’t help us much.
The Cambridge dictionary defines ceremony as “(a set of) formal acts, often fixed and traditional, performed on important social or religious occasions”. Add to it the qualifier religion, and the scope sort of becomes clearer. Basis this textual understanding, the provision seems to exempt a specific set of rituals/rites that partake of religious character. On top of my head I can think of aartis, bhajans, etc. to be paradigmatic illustrations. Then there’s the phrase ‘bona fide’. Black’s law dictionary defines it as “is or with good faith; honestly, openly, and sincerely; without deceit or fraud”. The implication seems to be that the ceremonies have to be conducted in actuality; it cannot be a sham/ruse for some other event. What about the size of the audience? I don’t consider it to be a relevant consideration since the provision already contemplates the usage to be ‘communication to the public’. Having more or less people won’t have a bearing on the provision’s invocation.
There however can be social gatherings/ events where a combination of religious ceremonies and non-religious/secular activities are taking place. Say, friends and family are dancing and vibing to music after they are done with observing their religious duties. Sound recordings both of religious and secular character may have been used. What will the law do then? A more crucial point lies here, in my opinion: the way people interact with religion and culture can evolve with time. If the wedding-centric component of the exception accommodates such socio-cultural imperatives, should the main provision do so as well? The text may say otherwise: the explanation that accompanies the main text aims to broaden the coverage in the marriage context; whereas the ‘bona fide’ religious ceremony term as a bigger family remains the same.
The other important facet here is the commercial angle. In Devendrakumar Ramchandra Dwivedi v. State of Gujarat, which is a 2009 Gujarat HC ruling, the HC had stated (in obiter since the petition was dismissed for lack of locus standi) that the basic thrust of exceptions like 52(1)(za) is to exempt performances of works “when there is no commercial purpose” and “when there is no admission charge” and/or “and/or when admission proceeds are used exclusively for educational, religious or charitable purpose and not for private personal financial gain”. Again going back to Prof. Scaria’s amicus submissions, s. 52(1)(za) falls in the scope of implied exceptions’/ ‘minor exceptions’/ ‘minor reservations’ recognised by both Brussels and Stockholm Conferences under Article 11 of the Berne Convention (para 25 of Scaria’s submissions). Von Lewinski opines that the economic impact of these exceptions have to be minimal for the author (para 26 of Scaria’s submissions). That may also give one way of understanding the bona fide nature of the activity: is the predominant purpose, commercial or religious?
Making Sense of the ‘Tamasha’:
As to our ticketed Diwali party, the BHC order doesn’t have enough facts to discern its nature. All it says is that it was a ticketed Diwali event named ‘‘Bollywood Diwali Tamasha”. While doing some curious internet surfing, I came across instagram reels and posts that most likely seem to be promotional material of that exact party. I don’t want to link them because no one can be 100% certain. But to describe what I saw, it was your normal social gathering/party where people are having food and drinks, dancing to music, and fun activities (like Bollywood games) are being held. It didn’t seem like the bona fide religious ceremony the provision contemplates. Consequently, if this is what the facts reflected, the BHC’s refusal to entertain the 52(1)(za) plea seems a reasonable take in my opinion.
Yet, a more crucial observation about the licensing industry and this exception’s working needs a mention. There can be social gatherings/ events where a combination of religious ceremonies and non-religious/secular activities are taking place. There’s bollywood music being played, as well as religious rites also conducted where devotional music was utilized. Ideally, the utilization of copyrighted music for the ‘party’ segment would be chargeable while the religious segment would be covered by the religious ceremony exception, instead of taking that whole event as one unit. This is the easy way, no issue of interpretation; the party just has to prove that the particular activity was of the nature of a bona fide religious ceremony. As the tariff scheme of organizations like PPL stands now, the license fee structure is of a lump sum nature (per event) with different brackets based on the average attendance. The business model doesn’t seem to contemplate a distinction amongst activities of different nature happening within the same event that is sought to be charged. One can say this amounts to an overreach of the copyright holder’s rights and a constriction of the fair dealing domain. Combine this with the existing storm over these organizations’ ability to undertake licensing business without copyright society status (see here), a bigger resolution on these questions is long overdue.
Thanks to Swaraj sir for his detailed comments on the post!