Highlighting the controversy surrounding demands for royalties for songs played during weddings, despite Section 52(1)(za), Rajesh Kumar and Akanksha Badika, using various principles of statutory interpretation, examine the legislative intent behind this provision and explain why such demands are not justified under the Copyright Act. Rajesh Kumar works as the Head of Legal and Akanksha Badika works as the Senior Legal Manager at Bhansali Productions, Mumbai (a film production house). Their practice predominantly revolves around copyright law, litigation and advising on all matters related to films emanating from script to screen. They write on varied aspects of copyright law including on films and music. Though the authors principally deal with copyright and music related matters, the thoughts and opinions expressed here are personal.
Tying the Knot and Testing the Law: Musical Fair Use or Judicial Constraints?
By Rajesh Kumar and Akanksha Badika
A traditional Indian wedding often encompasses rituals such as “roka, haldi, mehndi, sangeet, and of course, the wedding ceremony followed by a wedding reception” and all these events are filled with celebratory music from the rhythmic beats of the thavil and nadaswaram in the South to the reverberating sounds of shehnais and dhols in North India. Marriage, along with the social festivities associated with it, being one of the most important social institutions, is incomplete without music. While the classical instruments of earlier times have largely been replaced by DJs, the underlying purpose of the music remains unchanged, which is celebrating and sanctifying a holy union.
By virtue of this post, we will discuss whether such licenses are legally tenable or not in light of what is mentioned under section 52 (1)(za) of the Copyright Act.
52(1)(za): The Rhythmic Controversy
In 1994, when Section 52(1) (za) was inserted to the Copyright Act, it clearly took into account these widespread, diverse, and socially vital practices across India where it specifically exempts from copyright infringement “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”. Through its explanation, it further extends the meaning of “religious ceremony” to include “marriage procession and other social festivities associated with a marriage”.
This necessitates a broad reading of the clause, one that takes into account not just the religious ceremonies signifying the official solemnization but also any social celebrations associated with a marriage.
The controversy at hand has arisen when, despite the clear and unambiguous provision provided under the Act, certain labels and licensing entities have crashed wedding festivities and started asserting their right to claim royalties for utilization of sound recordings stating that it infringes upon their rights.
The legislature has previously stated that it intends to exempt marriage-related rituals and celebrations from copyright violations. As a result, the Court may choose an interpretation that supports the aforementioned goals and is consistent with the stance chosen by the legislature. However, the courts have chosen the route of narrow interpretation and failed to read the provision in congruence with its explanation.
Celebration to Litigation: The Judicial Perspective
The controversy over the use of music by DJs licensing at weddings persists despite repeated government clarifications which were sadly struck down by courts.
In PPL v. State of Punjab (2011), the Punjab & Haryana High Court held that a license is required when music is played during activities “connected” with marriage, distinguishing it from the actual wedding ceremony. Section 52(1)(z)(a) does not specifically mention such terms as its purpose is clear and unambiguous, which is to exempt licenses for playing sound recordings at weddings. In Novex Communications v. Union of India, as discussed here, and PPL v. State of Goa, as discussed here, circulars exempting weddings from licensing were invalidated for lacking authority and restricting copyright holders’ rights. In PPL v. Lookpart, an expert submission suggesting a broader reading of the provision was submitted before the Court, but the case was settled by the parties. Overall, courts have taken a very narrow view and failed to appreciate Section 52(1)(za)’s true purposive intent This issue remains undecided till date, with courts not having dealt with the contentious issue on merit to ascertain if the performance of DJ in a wedding would qualify for a public performance or a private performance in view of what is stated under section 52(1)(za).
Navigating the Legislative Intent
Purposive Rule of Construction
The purposive rule of construction specifically entails that the true meaning must be given to the purpose and legislative intent of a provision.
The four interrogatives for applying the purposive rule are: (i) law before amendment, (ii)mischief sought to be remedied and (iv) the reason thereof. The use of music in marriage ceremonies was not specifically covered by law prior to the 1994 Amendment to the Copyright Act. This use was therefore interpreted as a violation of copyright. The problem that the law did not address was that wedding music had to be licensed, which prevented it from being freely enjoyed as part of the festivities. By creating an exception, the 1994 Amendment resolved this problem and made it legal to use music in marriage ceremonies without violating copyright. The legislative note to the Copyright (Second Amendment) Bill, 1992, explains why this remedy is necessary. It made clear that the explanation of Section 52(1)(za) was intended to prevent copyright infringement from being applied to music used in “marriage processions and other social festivities” related to the ceremony.
The authors had filed an RTI report to obtain the draft committee report for the 1994 Amendment to deduce the legislative intent, however the document was deemed “untraceable” by the authorities.
The Supreme Court laid down in S. Sundaram Pillai v Pattabhiraman that an explanation explains the intendment of the Act, making it consistent with the objective thereby suppressing the mischief and advancing the true meaning of the provision.. 52(1) (za) of the Act is limited to the acts of performance or communication to the public of a work in the course of a bona-fide religious ceremony or an official ceremony.
The legislature has added the explanation to that clause, taking into due consideration the social, cultural and legal situation in the country. S. 52(1)(za), as it stands today, comes clearly within the ambit of ‘minor exceptions’/ ‘implied exceptions’. Two important aspects of the provision need to be highlighted – First, the statute uses the word “including” in the context of marriage related activities, suggesting that the scope of religious ceremonies is not restricted or exhaustive and the same is inclusive to also include pre/post ceremonies. Second, the word “social festivities associated with marriage” is used explicitly by the Act’s crafters in 52(1)(za) rather than “ceremonies” or “rituals.” The same was noted by Prof. Arul Scaria in his submission to the Delhi High Court in PPL v Lookpart, which is discussed in detail here.
Explanation would not have been included if not to provide an exception. It is of hybrid nature as it not only aids the interpretation of the section but also expands its meaning. The language of the explanation leads to suggest there is no disharmony whatsoever between the explanation and the section. The explanation was specifically carved out to ensure there is no misunderstanding of section 52(1)(za) The range of actions allowed under S. 52(1)(za) would have been restricted if the legislators had referred to them as rituals or ceremonies.
Literal Rule of Interpretation
Before we proceed, let us break down the key words used in Section 52(1)(za) down to their literal meanings to derive the intent behind the provision.
“Bona fide” was defined by the Supreme Court inShiv Sarup Gupta v. Mahesh Chand Gupta, referring to Chambers 20th Century Dictionary to mean “natural, not spurious, real, pure, sincere.”
“Festivities” as defined by Cambridge Dictionary, means “parties, meals, and other social activities celebrating a special occasion.” This suggests a broad interpretation, encompassing both pre-wedding and post-wedding events like haldi, mehndi, sangeet, sagai, and reception parties.
“Marriage ceremony”, according to Black’s Law Dictionary, refers to “the religious or civil proceeding that solemnizes a marriage.” The explanation under Section 52(1) (za) extends this concept to include marriage processions and associated social festivities.
Thus, Section 52(1)(za) ensures that all social festivities associated with a marriage procession have a legitimate connection to a marriage and is not merely a pretext to bypass copyright regulations, and therefore, any such event should fall under the scope of the exception.
It is a well-established facet of the interpretation of statutes that, first and foremost, the literary rule of construction is to be followed, and then the purposive rule. However, as we can see, the literal rule of interpretation and the purposive rule of interpretation go hand in hand and convey the same meaning for this provision, and hence any interpretation to the contrary would be bad in law. Even the literal rule of interpretation implies a broader meaning instead of being restrictive by the use of the word “including”. Therefore, both the literal and purposive rules can in no manner suggest that pre-wedding and post-wedding ceremonies are not included within the ambit of 52(1)(za). Therefore, any reading of the provision of the statute would be far-fetched and unconstitutional.
Marriage Functions: A Private Event or Public Celebration?
Wedding guests are invited to attend the different ceremonies that take place during a wedding free of admission charges, and there is no commercial gain for the families hosting the wedding. Marriage festivities, such as the baraat, in many communities, occur in public spaces but are generally limited to the couple’s family and social circles. In other words, utilization of sound recording for a private function/gathering, such as a marriage and associated social festivities, would not attract a license and should be kept out of the purview of copyright infringement, for the reason that the character of the audience is private and not public, as held in Devendrakumar Ramchandra Dwivedi v State of Gujarat. The utilization of sound recordings during a marriage procession, per se, including all associated festivities, would constitute private use under Section 52(1)(a)(i) of the Act, which falls under the scope of the fair dealing doctrine and no tariff regime would apply. Any interpretation to the contrary, either to seek or apply a tariff regime to marriage and all associated festivities, would be far-fetched and unconstitutional.
In Devendrakumar Ramchandra Dwivedi v. State of Gujarat, the Gujarat High Court held that non-profit musical performances and other non-dramatic works are covered under the Copyright Act’s Section 52(1)(za) exception. In addition to not having any commercial intent, generating private financial gain, or being performed for profit, such performances must be free to attend.
Interestingly, as reported here, IPRS and EEMA and DIPP (now DPIIT) held a meeting in 2018 and came to an understanding that “IPRS and PPL licences are not needed for wedding events; this includes all wedding-related events. The IPRS team shared that they specifically clarified the same with DIPP and confirmed the same.”
Conclusion
According to our deduced opinion, the people invited to a marriage cannot be regarded as “public” under the Act for the purposes of determining whether the public’s right to communication or public performance has been violated. Section 52(1)(za) stands as a testament to the Indian legislature’s recognition of music’s integral place in marriage and its associated social festivities, protecting the deep-rooted cultural practices that make such occasions unique and meaningful.
Both the literal rule (which looks to the ordinary, straightforward meaning of the provision) and the purposive rule (which seeks to effectuate the legislative intent) work in tandem to safeguard the spirit of celebration in Indian marriages. The literal wording reinforces an expansive interpretation, and the purposive approach further clarifies that the intention of legislation was to shield marriage festivities from unnecessary commercial and legal hurdles. Any attempt to impose a restrictive reading or additional burdens not intended by the legislature is not only contrary to the text and spirit of the law, but also undermines the cultural fabric the provision was meant to protect. Licenses cannot be collected unless we rewrite the section to bar the use of music without license. Therefore, there exists no room for interpretation/construction in section 52(1)(za) to the contrary since the law remains unambiguous.
We thank Swaraj and Praharsh for their valuable inputs. We also acknowledge the efforts of Mr. Himanshu MJ and Advit Shrivastav.