Ah Goa!. Spectacular sunsets, beautiful beaches, fish curry and crumbling 16th century Catholic cathedrals deep in the jungle. I fondly recall a couple of visits in past years. While Goa has many attractions, it is the beaches that are the bread-and-butter of the tourist industry. A lot happens on those beaches, from sunbathing to windsurfing to…weddings. And with weddings, especially Indian weddings, comes music. (The recent $230 million Ambani wedding, was the epitome of the genre). All singing, all dancing, all the time. And that is where we take up our copyright story….
In what appears to be an overly zealous desire to promote tourism and economic activity, and perhaps to respond to complaints raised by some local musicians, the Goan state government in January issued a controversial declaration regarding music played or performed at wedding parties. No copyright would apply, no licence would be required and thus no royalties would be payable for the performance or playing of music at such events. Normally such royalties are collected by hotels from patrons organizing private functions and remitted to the relevant collective society. Moreover, according to the circular, any attempted enforcement of their rights by rights holders would result in police action to prevent collection.
My first reaction on reading reports of the case was, “how outlandish”. Why not issue an edict requiring hotels to rent their facilities for weddings at half price in order to promote tourism? Or pass a law insisting that wedding caterers provide free drinks for wedding guests to promote more weddings in Goa? A US comparison might be passage of a law by, say, Hawaii or Florida, forbidding the enforcement of copyright in music played at destination weddings in order to maintain the local tourism industry. In the US, we have seen several instances of state legislation that impinged on the federal copyright power being struck down by the courts. These had nothing to do with weddings (they related to the licensing of e-books), but you get the idea. A state level government cannot make or interpret law in an area of federal responsibility. It is the same principle in India. Yet as compelling as these arguments are (to me at least), there is some legal basis behind the reasoning of the circular, although the right of the Goan state government to interpret and enforce it is another matter.
The edict in Goa can be traced back to a Public Notice issued in July of 2023 by the Central Government’s Ministry of Industry and Commerce, in which it noted complaints from the public that copyright societies had allegedly been seeking to collect royalties for performance of music or playing of sound recordings at religious events, to wit, marriage ceremonies. That notice was based on an exception in the Indian Copyright Act, Section 52 (1) (za) that permits the playing or performance of copyrighted music without obtaining a licence at a ”bona fide religious ceremony”, including “marriage processions and other social festivities associated with marriage”. Does this include all singing, all dancing wedding parties spread over several days? I would have thought not.
Goa’s edict was challenged and adjudicated by the Bombay High Court. The Court accepted that the Section 52 exception applies to bona fide religious ceremonies including marriages, but challenged the wider interpretation encompassed in the circular issued by the Goan government. It also noted Goa had used the term “weddings” instead of “marriage”.
The Chennai-based intellectual property law firm, Selvam & Selvam, has published a good analysis of the case. After the collecting society Phonographic Performance Ltd (PPL) and another plaintiff brought suit, the Court ruled that the Goan government’s circular was ultra vires. Legal interpretation of what constitutes a “bona fide religious ceremony”, as enunciated Section 52 of the Copyright Act, depends on case-by-case circumstances, according to the Court. Such a determination must be made by the courts, not by a state government. Moreover, directing the police to take action against rights-holders seeking to enforce their rights impedes enforcement mechanisms available to rights-holders under the Copyright Act. A clear-headed decision, I would say.
But this is not the first time such issues have risen in India. As Selvam’s points out;
“there is a pressing need for clearer guidelines that can help figure out the boundaries of copyrights in celebratory contexts. Ultimately, a well-defined approach to copyright in social festivities will not only protect creators but will also support the vibrant culture of celebration that defines India.”
Back in 2022, in a case also brought by PPL, the Delhi High Court appointed an expert, Dr. Arul George Scaria, to look into the implications of Section 52 (1) (za) for copyright holders and families organizing weddings. His lengthy report was sympathetic to a broad interpretation of the exception, arguing that under Berne it amounts to a legitimate “minor exception” while also noting the importance of music and cultural practices to marriage ceremonies in India. However, since the case was settled out of court, his report has had no direct impact on Indian jurisprudence in this area. By contrast, others have argued that the use of music at weddings goes beyond private, religious use since the wedding industry in India is highly commercialized. Some wedding events are spread over a number of days, up to a week, and involve many more than just a few friends and family. In effect, they become public performances.
India is not the only country to provide a copyright exception for music and sound recordings when used for religious purposes. It also exists in Canada (Section 32. 2 (3) of the Copyright Act) and in the US (Section 110 (3) of the US Copyright Act), and probably in many other countries. I am not aware, however, of any attempt to extend this exception to wedding parties, except in India.
Marriage ceremonies and weddings (the two may not be synonymous these days) are an important part of any culture, in India as elsewhere. Whether it is Mendelssohn’s Wedding March (long in the public domain I should add), a couple’s choice of contemporary music for their big day, or the latest Bollywood songs played by a DJ, music is an integral part of such events. When one hires a band or a DJ for a wedding reception here, usually the last thing the parents-of-the-bride think about is licensing the music (speaking from personal experience). Yet, DJ’s who use recorded music at events like wedding receptions (and other public performances) require a licence. Often the licence is covered by the hotel venue or the event plannerso preoccupied parents or the couple themselves need not stress out too much. What is clear is that such music is not covered by the religious exception. This is where India seems to be a bit of an outlier.
But the law is the law and Section 52 (1) (za) is part of the Copyright Act of India. Defining where the limit between exercise of religion ends and pure entertainment begins should and will fall to the Indian courts, unless there is further legislation clarifying the intent of the Indian Parliament. The tourism promotion authorities at various sublevels of government should stay out of it. That seems to be the lesson learned in this case.
This article was first published on Hugh Stephens Blog