In Phonographic Performance Limited^[i] and Sonotek Cassettes Company^[ii] v. State of Goa, the Bombay High Court heard a petition filed by Phonographic Performance Limited and Sonotek (collectively, for ease, “PPL”) under Article 226 of the Constitution, seeking to quash and set aside a circular issued on 30^th January 2024 by the State of Goa (“Circular”). The Circular stated that playing songs at religious ceremonies, including weddings and related social festivities, falls under fair dealing, meaning no one can demand compensation for such use.

The Division Bench comprising Justice M.S. Karnik and Justice Valmiki Menezes observed that the State of Goa had ventured into interpreting Section 52(1)(za) of the Copyright Act 1957, a matter that should only be determined by the Judiciary based on the facts and circumstances of each case. The Court declared the Circular illegal and invalid, and it was quashed and set aside.

Background

Founded in 1941, Phonographic Performance Limited, also known as PPL India, is a performance rights organization that licenses its members’ sound recordings for public performance and broadcast. Between 7^th May 1996 and 21^st June 2014, PPL was a registered copyright society under Section 33 of the Copyright Act. Following an amendment in 2012 to the Copyright Act (second proviso to Sub Section 3-A of Section 33), PPL surrendered its registration as a Copyright Society and had to re-register under the Copyright Act.

Although PPL was no longer registered as a copyright society, due to not being registered, it continued to receive assignments of public performance rights from music labels and issued licenses for these rights under Section 30 of the Act as an “owner”. PPL provides licenses for accessing over 4 million songs, holding public performance rights for various sound recordings.

On 30 January 2024, the State of Goa issued a Circular (seen below). PPL challenged this Circular through a legal notice on 27 February 2024, demanding its withdrawal. There was no response given by the State of Goa to PPL’s legal notice.

PPL argued that the Circular unlawfully restricted its right to pursue legal action for copyright infringement. Additionally, PPL contended that the Circular improperly expanded the scope of Section 52(1)(za) of the Act.

The bare text of the Circular dated 30 January 2024 can be seen in the images of the Court Order below:

Arguments by the Parties

Plaintiff, PPL, argued on the following points:

• Jurisdiction: PPL argued that the State of Goa, specifically the Home Ministry, do not have the jurisdiction to interpret the law, and as an executive arm of the Government, cannot assume legislative functions or interpret the law. PPL cited the decision of the Punjab & Haryana High Court in Novex Communications Private Limited vs. Union of India,[iii] which held that the Registrar of Copyrights had no authority to clarify or interpret the applicability of the law. The judgment also stated that a public notice cannot impact the statutory rights of a copyright owner under Section 55 of the Copyright Act.
• Scope of the Circular: PPL also argued that the impugned Circular unlawfully expands the scope of Section 52(1)(za) of the Copyright Act, which is impermissible, and fails to disclose the statutory authority under which it was issued.
• Obstructing Right to take action: PPL contended that the impugned Circular infringes on their right to initiate civil or criminal proceedings for copyright infringement. By sending the Circular to the police and encouraging action against the legitimate collection of royalties by PPL, the State of Goa is obstructing PPL’s statutory right to take criminal action against infringers.
• Interpretation of Section 52(1)(za): PPL argued that Section 52(1)(za) should be interpreted in line with other exceptions, limiting it to bona fide religious ceremonies with non-commercial use of copyrighted works. They stated that the words “Social festivities associated with marriage” should be read together with “bona fide religious ceremony,” and that the Explanation to Section 52(1)(za) cannot broaden the meaning of the main provision. PPL emphasized that whether certain acts fall under Section 52(1)(za) should be determined on a case-by-case basis, rather than through a general interpretation.

Respondents, State of Goa, argued on the following points:

• Executive Power: The State of Goa argued that the Circular was issued under the State Government’s executive powers as provided by Article 162 of the Constitution of India. The purpose of the Circular is to guide officers of the State, to prevent abuse of police machinery, and to inform the public about statutory provisions.
• Challenge to Executive Instructions: The State of Goa contended that a Circular or executive instruction can only be challenged if it takes away a statutory right. Since the impugned Circular does not remove any rights but instead safeguards against the abuse of power, it should not be interfered with.
• Interpretation of Section 52(1)(za): The Circular clarifies that under Section 52(1)(za) playing sound recordings during bona fide religious ceremonies, including marriage processions and related social festivities is not copyright infringement. The Circular merely stated the legal position and aimed to sensitize police to prevent undue harassment and ensure action against illegal demands for royalties/fees in such cases. The State of Goa argued that the statutory language is clear and does not require interpretation.
• Civil and Criminal Remedies: The State of Goa asserted that the Circular does not remove PPL’s ability to pursue civil or criminal remedies. The Circular simply acknowledges that events falling under Section 52(1)(za) do not constitute copyright infringement. If the police do not register an FIR due to this, PPL may still approach the Court.
• Commercial Use: The State of Goa argued that Section 52(1)(za) is not limited to non-commercial use, and applying such a limitation would mean reading additional words into the statute, which is not permissible. The provision covers bona fide religious ceremonies, including marriage processions and social festivities associated with marriage.
• Parliamentary Intent: The State of Goa pointed out that the Parliament intended to exclude marriage processions and related social festivities from copyright infringement.
• Judicial Interference: The State of Goa argued that unless the Court finds the interpretation in the Circular to be arbitrary or perverse, it should not interfere. Even if it does, the doctrine of severability would apply, and only the offending part would be affected.
• Right to Charge Fees/Royalties: The State of Goa concluded that if PPL believes they are entitled to charge fees or royalties, they can file a suit under Section 55 or pursue criminal prosecution. However, using the police machinery for events excluded from copyright infringement would contradict the statute and harm public interest.

Analysis of the Court

The Court reviewed the previous public notice issued by the Central Government on July 24, 2023, which led the State of Goa to issue a Circular on January 30, 2024. This Circular stated that performing musical works at religious ceremonies, including weddings, does not violate the Copyright Act. The Circular also claimed that requiring permissions or NOCs from copyright societies infringes Section 52(1)(za) of the Act and negatively impacts citizens and the State’s economic and tourism activities. Consequently, the Circular directed that hotels and copyright societies should not demand permissions or NOCs for musical performances at religious and social marriage-related events.

Observations on Copyright Law

The Court at the outset referred to the Supreme Court case Eastern Book Company v. D.B. Modak,[iv] where it was established that works created through an individual’s skill and labor belong to that individual, and others should not profit from the original author’s work. The Copyright Act grants authors exclusive rights to protect their works from unauthorized use, emphasizing the importance of originality to safeguard the interests of authors and the public.

Regarding copyright infringement, the Court noted that Section 55 of the Act provides civil remedies, allowing copyright owners to seek injunctions, damages, and other legal remedies. The Court emphasized that copyright law seeks to balance the rights of the author with the public’s interest in protecting the public domain. Additionally, the Court noted the close connection between copyright issues and commercial viability, including the commercial consequences and implications of such rights.

Observations on the Circular

The Court examined Section 52, which outlines acts that do not constitute copyright infringement, including the term “bona fide religious ceremony” in Section 52(1)(za). The explanation to this section clarified that “religious ceremony” includes marriage processions and other social festivities associated with marriage.

The Court noted that if a sound recording is communicated to the public during a bona fide religious ceremony, which includes a marriage procession and other social activities related to a marriage, there may be disputes about what constitutes a “bona fide religious ceremony” or related social festivities. But in any case, according to Section 52(1)(za) of the Copyright Act, the communication to the public of a sound recording of musical work or of a sound recording in the course of any bonafide religious ceremony including a marriage procession and other social festivities associated with a marriage cannot be construed to be an act infringing the copyright.

The Court noted that the Circular issued by the State of Goa expanded the scope of Section 52(1)(za) beyond what the law intended. While the Circular claimed to inform the public about Section 52(1)(za), it distorted its provisions, disrupting the balance between the rights of copyright owners and those protected under Section 52(1)(za). The Circular included additional terms, such as “wedding“, not present in Section 52(1)(za), which only mentioned “marriage” in the context of bona fide religious ceremonies.

On the question of whether the term ‘marriage’ in Section 52(1)(za) has the same meaning as the term ‘wedding’, the Court observed that the Circular used the term ‘wedding’. The purport of Section 52(1)(za) appeared to be that there is no infringement of the Copyright Act within the umbrella of the expression ‘bonafide religious ceremony’.[v]

The Court found that the Circular went beyond merely informing the public and interfered with the enforcement of copyright laws. It instructed authorities to take strict action against any hotel or copyright society demanding royalties for musical performances at religious ceremonies/festivals including weddings/marriage events and other social festivities associated with marriage, which was outside the scope of Section 52(1)(za).

Judgement

The Court concluded that the Circular was not simply informational but involved an interpretation of Section 52(1)(za), a matter for the courts to decide. Improperly broadening the interpretation of Section 52(1)(za) infringed upon PPL’s rights under the copyright law.

It was held that the Circular warranted interference by the exercise of writ jurisdiction of the High Court under Article 226 of the Constitution of India, and the Circular was quashed as illegal and bad in law, being in the teeth of (meaning directly against) the provisions of the Copyright Act, 1957.

Prior Discussions and Cases

The question about, whether circulars in relation to playing music at religious festivals and marriage ceremonies, keeping in mind the exception given under Section 52 (1) (za), has been debated since a long time in the Indian Courts.

Back in 2011, (Phonographic Performance Ltd. v. State of Punjab),^[vi] the Punjab and Haryana High Court ruled that reproducing a sound recording without a license from the copyright society, even during events like marriage ceremonies, constitutes a copyright violation. PPL sought to quash a 2011 order from the Additional Director of Police. The question was if performing musical works by DJ’s in marriage ceremonies was exempted from licensing. The Court determined that performances by DJs at marriage-related functions, even those with religious aspects, are not exempt from licensing requirements.

In 2019, a notification was issued,[vii] which was subsequently invalidated in 2022 by the Punjab and Haryana High Court in Novex Communications Private Limited v. Union of India,[viii] on the grounds of being ultra vires. The High Court struck down the public notice and held that the executive had no power under the Act to “clarify or interpret applicability of law in the manner suggested in the impugned public notice/letter”. The Court observed that the issuance of such public notice also violated the doctrine of separation of powers as “an attempt has been made by Respondent no. 2 (the Copyright Office) to usurp the legislative power of enactment and judicial power of interpretation”.

The Delhi High Court had in 2019 appointed Professor Arul Scaria as an expert in the case of Phonographic Performance Limited v. Lookpart Exhibitions and Events Private Ltd.,[ix] where a dispute occurred between PPL and an event management company for payment of royalties in marriages. However, the parties ultimately settled the dispute out of court, leaving the issue unresolved. Dr. Scaria’s report, inter alia, laid down a list of 66 countries which had provisions similar to Section 52(1)(za) of the Copyright Act.

The Delhi High Court’s recent interpretation in 2023 is worth noting. In Ten Events and Entertainment v. Novex Communications Pvt. Ltd.,[x] an event management services company had filed a lawsuit against Novex, because they had asked hotels playing songs in wedding ceremonies to obtain a license or a no objection certificate. According to the event management company, no such license or NOC was required, in view of Section 52(1)(za) of the Copyright Act. The Court observed that the question of which celebrations and/or festivities would qualify as “social festivities associated with marriage” had to be decided on a case to case basis as it was a question of fact.

This view was also reiterated in the present case, where the Court held that the question of what festivals or acts qualified as exceptions “within the meaning of Section 52(1)(za) is a question of fact which will depend upon the facts and circumstances of each case”.[xi]

Conclusion

In my view, this decision was very much required to clarify for the public which events are exempt from copyright infringement. As noted by the Court, only bona fide religious ceremonies including a marriage procession and other social festivities associated with a marriage, are granted immunity for the use of any songs during their events. Exactly what events are covered under this exception is something that is to be decided on case to case basis. This is already well established in Ten Events. The Circular, by expanding the scope, undermined the interests of copyright owners and disrupted the balance between those interests and public rights that the Copyright Act had already adequately established.

I also, however, believe that when a song is being played at a wedding event, which may or may not fall within the exception provided under the Copyright Act, the copyright society officers can exercise discretion and avoid interrupting the procession or issuing threats of legal action while the wedding or ceremony is ongoing. The State has pointed out instances where such actions have occurred.

There are already remedies available where, once an infringing act has been committed, damages may be sought. Therefore, providing a simple notice to the organizer could serve as a sufficient warning, rather than resorting to disruptive and threatening actions such as shutting down the ceremony or wedding, as pointed out by the State of Goa in their order. Such conduct not only creates unnecessary commotion but may also contribute to a negative perception of copyright societies among the public. This may lead to resistance of the general populace in purchasing performance licenses and may also decrease tourism activities, as pointed out by the State.

This article was first published on IPRMENTLAW