The Department for Promotion of Industry and Internal Trade (DPIIT) held a stakeholder consultation meeting on August 23, 2023, to discuss the following issues related to copyright societies:
The list of stakeholders who were invited for the meeting included:
Readers may recollect that the Government had called for similar stakeholder meetings earlier on issues such as registration of multiple copyright societies as opposed to single copyright society in a single class of work, single window licensing, details of which were captured by us here, here and here.
The event management and hotel industry has been pushing for some of these issues since a while.
The current framework of the Copyright Act, 1957 does not have any provision which would make single window licensing possible. Section 33 of the Act currently requires that the Central Government shall not ordinarily register more than one copyright society to do business in respect of the same class of works. Further Section 33 also permits for owner of copyright in his individual capacity to continue to have the right to grant licenses in respect of his own works consistent with his obligations as a member of the registered copyright society.
It is therefore unclear as to how would such single window licensing work in the existing legislative framework. It is further unclear as to how would owners of copyright continue to carry out voluntary licensing activities if such single window licensing system comes into place. Further, to what extent would such single window licensing be applicable? Will it only be for public performance or also extend to other licensing such as radio, television, digital, etc. and if it does what would be the point of having compulsory and statutory licensing provisions in place for tariff / royalty determination? The Government would need to bring about an amendment to the Copyright Act to make such a mechanism permissible and at the same time be mindful of the rights of the owners of copyright.
No clarity has been provided on the agenda behind inclusion of single equitable remuneration as a discussion pointer. An inference to ‘equitable remuneration’ could be drawn with the UK Copyright Designs and Patents Act, 1988 where a performer is entitled to equitable remuneration from the owner of the copyright in the sound recording as per the provisions of the Act.
It will have to be seen as to what the objective is behind adding this as a discussion pointer in the Indian legislative framework.
The Government recently issued a clarification vide public notice dated 24th July, 2023 reiterating that in accordance with Section 52(1)(za) of the Copyright Act, 1957, performance or communication of any literary, dramatic, musical or sound recording work at any religious ceremony which includes marriage ceremony and social festivities associated with marriage shall not amount to copyright infringement. Earlier, the Copyright Office had issued a similar notification dated 27th August 2019, clarifying that utilization of any sound recording in the course of a religious ceremony including a marriage procession and other social festivities associated with a marriage does not amount to infringement. However, this notice was quashed by P&H High Court on 19 May 2022 in Novex Communications Private Limited v. Union of India being violative of the doctrine of Separation of Powers. A surge of various other petitions also followed, including the Delhi High Court case of Phonographic Performance Limited (PPL) v. Lookpart Exhibitions and Events Private Limited, wherein an expert report was submitted favoring the exception, however, the matter was withdrawn by PPL in view of an amicable settlement reached between the parties. It is pertinent to note that the Delhi High Court has recently in Ten Events and Entertainment v. Novex Communications Pvt. Ltd., observed that the question of what celebrations or festivities would qualify as “social festivities associated with the marriage” is a question of fact and has to be decided on case to case basis. Read our post on this issue here.
This issue has been a bone of contention between the hotel/ event management industry and music labels. The main issue of concern pertains to whether all celebrations and festivities associated with weddings especially where DJs, sangeet etc. are held in five-star hotels and not directly linked to the wedding ceremonies, would those fall within the ambit of Section 52. A balanced approach is required on this issue. The Government ought to bring about a proper legislative amendment to bring about absolute clarity and not adopt backdoor mechanism of issuing clarifications vide public notices which in all likelihood will be quashed similar to the earlier notification.
The interplay between Section 30 and 33 of the Copyright Act has been well settled right from Bombay High Court’s decision in Leopold Café & Stores vs Novex Communications Pvt. Ltd. [2014 SCC OnLine Bom 4801], where Justice Patel has interpreted Section 30 and 33(1) to hold that it is legally permissible for companies like Novex to issue licenses and carry on the business of granting licenses on behalf of copyright owners but it must not do so “in its own name” and must clearly represent to the licensees that it is acting “as an agent” on behalf of the owner. Alternatively, it can always act as the “assignee” of the works. This was further upheld by the Delhi High Court in the writ petition filed by Event and Entertainment Management Association (EEMA) in 2016 against IPRS & PPL & Novex. The Delhi High Court in the case of Novex Communications Private Limited v. Lemon Tree Hotels Limited had further held that second Proviso to Section 33(1) talks of issuing or granting of license with respect to the musical work in sound recordings, it is only for the musical work in the sound recording and not the sound recording itself. The Delhi High Court had ruled that if second proviso is to apply to sound recording and cinematographic films and not just underlying works therein, it would nullify or render otiose the first proviso to Section 33(1). However, the Madras High Court in the case of Novex Communications Pvt. Ltd vs DXC Technology Pvt. Ltd & Anr disagreed with the Delhi HC decision and has held that the business of issuing licenses in any work in which copyright subsists can only be done by a registered copyright society if the work is incorporated in a cinematograph film or a sound recording. The Madras HC had held that “once the grant of license moves from the owner in his individual capacity, and transcends into the realm of a business, Section 33(1) and/or the second proviso applies. The legislative intent is manifestly clear that the business of licensing must be routed only through a copyright society.”
In view of these contradictory judgements, it would indeed be better for absolute clarity on the interplay between Section 30 and 33 of the Copyright Act.
It is high time the Government relooks at the Copyright Act and brings about a robust amendment to revamp all the ambiguous provisions introduced vide the Copyright Amendment Act of 2012 and upgrades the Act to meet the requirements of the current day and age. While the 2012 amendments had its heart in the right place, the ambiguous drafting of the 2012 amendments have resulted into plethora of disputes on its interpretation. Resultantly, the 2012 Amendments failed to achieve the very objective which was intended by the legislature.
This article was first published on IPRMENTLAW