Dancing to the Tune of Garba and Dandiya: Gujarat High Court says "No Fair"?

A recent decision of the Gujarat High Court has caught the attention of the SpicyIP team, which appears to be capable of sparking off a rather lively debate. The decision is the one that has been reached in the case of Devendrakumar Ramchandra Dwivedi v State of Gujarat and Others (Special Civil Application No. 9979 of 2009). This was an example of a unsuccessful public interest litigation that the Petitioner had filed, apprehending disruption of Navaratri Garba and Dandiya Mahotsav by law enforcement authorities after one of the Respondents, viz. the Indian Performing Rights Society Ltd. (IPRS) had complained of the proceedings of the said festivals being violative of the provisions of the Copyright Act, 1957. A society established under Section 33(3) of the said Act, IPRS has been established to monitor, protect and enforce the rights, interest and privileges of its members, viz. the authors, composers and music publishers, who in turn have assigned to IPRS the ownership or administrative authority of copyrights in a vast repertoire of literary and musical works created by them. Amongst the various rights possessed by the owners of copyright of a literary/musical work as per Section 14(a) of the Copyright Act, the right to perform the work in public or communicate the same to the public is the one under contention in this case. As per the claim put forth by IPRS, exploitation of any of the aforesaid work within IPRS’s repertoire without having obtained license from IPRS amounts to infringement of copyright as per the statutory provisions of Section 51 of the 1957 Act, read with Section 14(a)(iii) thereof. According to IPRS, playing of music in course of the aforesaid festivals consist of such infringement as well.

The Petitioner, who is a resident of Ahmedabad and is engaged in the business of serving Sharbat and drinking water in course of festivals, had denied of any personal interest associated with any organizer of Garba or Dandiya festivals. He claimed to be acting out of general public interest only. While referring to the article dated September 12, 2009, published in a local daily newspaper named ‘Sandesh’, which had reported IPRS having sent notices to hotels, clubs and restaurants emphasizing upon the necessity to obtain license from IPRS at the tariff rates applicable to the Public Performance of Music by way of Live Performance, DJ Music and Live with the DJ (Recorded Music), the Petitioner took on the stance that there could not be any necessity of obtaining such license for conducting performance and religious ceremony of Garba/Dandiya, festivals which have been an integral part of the Gujarati culture since long before the Copyright Act had been enacted and hence belongs solely to the public domain. He also contended that many folk dance, musical work and other dramatic work or action intended to be sung, spoken or performed with music work were gradually forming part of the cultural heritage of the state, which was an art also adopted in several movies. From that perspective, IPRS’s action had been challenged to be contrary to the public interest and capable of creating serious law and order problems since these festivals are celebrated all over the state with religious fervor and any disruption in the same can cause wide-scale unrest.

IPRS, however, contended that the Petitioner had failed to provide any evidence suggesting that the organizers of such performances and festivals belong to the category of religious organization or amateur club. Again, while it is true that Section 52(1)(za) of the Copyright Act exempts “bona fide religious ceremonies” from copyright infringements, IPRS sought to indicate that the events under consideration were ones where music was played and entry fee was charged and hence could by no stretch of imagination whatsoever be construed to fall within the purview of what the legislature had intended to be “bona fide religious ceremonies”. IPRS also contended that it had till date never charged license fees for folk music or music which is in public domain, only for exploitation of those works which fall within its repertoire. In fact, mention had also been made of past instances, wherein several organizers of Garba/Dandiya festivals had played such music in the form of public performance and also obtained prior licenses for the same from IPRS. The Petitioner’s locus standi had also been challenged by IPRS, who argued that its actions to safeguard the interests of its members did not infringe any of the Petitioner’s statutory or fundamental rights, nor had general public interest been adversely affected as a result. Another technical contention raised by IPRS was that any grievance of the Petitioner ought to have been expressed by way of a civil suit under Section 60 of the Copyright Act, instead of filing a writ petition against a private body like IPRS!

The petitioner had sought reliefs against IPRS’s publication requiring licenses to be sought for public performance of any of the musical works within its repertoire during the Garba/Dandiya festivals. The judiciary, however, comprising of the Hon’ble Chief Justice of Gujarat High Court, Mr. K.S. Radhakrishnan, C. J. and Anant S. Dave, J., opined that the Petitioner had in this case been driven solely by a motive to obtain publicity instead of any genuine concern for public interest. The Court also recognized the legitimacy of IPRS’s concern about safeguarding the interests of its members by preventing the aforementioned copyright infringement as well as the fact that any unauthorized exploitation of the musical works within IPRS’s repertoire by way of public performance would amount to such infringement.

One of the grievances voiced by the Petitioner had been that the notice issued by IPRS had been in contravention of the Sections 52(1)(za), 52(1)(k) and 52(1)(l), read with Section 2(p) of the 1957 Act. Following is the text of the relevant provisions:

Section 52. Certain acts not to be infringement of copyright. -(1) The following acts shall not constitute an infringement of copyright, namely:

(k) the causing of a recording to be heard in public by utilising it,-

(i) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or

(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit; or

(iii) as part of the activities of a club, society or other organisation which is not established or conducted for profit;

(l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution;

(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 including a marriage procession and other social festivities associated with a marriage.

The judiciary went on to say that the Petitioner had failed to produce any evidence whatsoever of IPRS or law enforcement machinery having taken any action against activities falling within the purview of the aforesaid provisions or of Section 52(2) of the Act, which states that “The provisions of sub-section (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself.”. The Court further held that the basic thrust of the aforementioned sub-clauses of Section 52(1) is to exempt live performances of such works when there is no commercial purpose or admission charge involved, nor any private financial gain and/or when the admission proceeds are exclusively used for educational, religious or charitable purposes. Thus music recording to be heard in public or Garba/Dandiya dance performance in an enclosed room or hall for the common use of the residents in any residential premise as part of the amenities provided exclusively or mainly for the residents therein would not consist of infringement, nor would the activities of a club/organisation not established for profit. Among the other activities that the judiciary indicated to be beyond the purview of copyright infringement, the following deserve mention, viz.

(a) the performance of a literary, dramatic or musical work by an amateur club or society if the performance is given for a non-paying audience or for the benefit of a religious institution;

(b) in the case of Folk music or public domain music; and

(c) the performance of a literary, dramatic or musical work arranged by the government or by any local authority or also in connection with a bona fide religious ceremony or social festivities associated with marriage.

The judiciary then proceeded to trace the origin and evolution of the Fair/Honest Use Doctrine, citing cases such as Folsom v. Marsh [9 F. Cas. 342 (1841)] [wherein the Doctrine was first articulated], Sony corporation of America v. Universal City Studios [464 U.S. 417 (1984)] [wherein the Court had sustained a claim of fair use for home videotaping of copyrighted television programme, despite the said use being clearly beyond the enumerated categories] and Harper and Row Publishers v. Nation Enterprises [471 U.S. 539 (1985)] [wherein the Court had rejected the claim of fair use regarding a news magazine’s quotation from the soon-to-be published memories of President Ford regarding his pardoning of President Nixon, despite the use falling clearly within the enumerated categories]. The last two decisions indicate the degree of judicial activism bordering on judicial legislation that has time and again been involved in deciding the limits of this doctrine that constitutes the most significant restriction on the exclusive rights granted to a copyright owner. The present judgement under consideration also emphasized that the doctrine comes into play when a too literal enforcement of the copyright owner’s rights would operate to the detriment of the public interest in access to and dissemination of knowledge and unauthorized copying can be tolerated without the owner suffering from significant economic injury. Involving a mixed question of law and fact, the doctrine seeks to presume unauthorized commercial use as unfair and having an adverse impact on the market of the copyright owner, with the burden lying upon the alleged ‘infringer’ to prove otherwise.

Although the judiciary in the present case dismissed the petition on the ground that none of the Petitioner’s statutory or fundamental rights appeared to have been violated, they significantly refrained from commenting on whether the performance during Garba/Dandiya festivals that was under popular scrutiny in this matter, constituted infringement of IPRS’s copyrights. Instead, a rather general comment illustrated the ending lines of the judgement, to the effect that whether a use is ‘fair’ or not has to be decided based on the facts and circumstances of each and every case.

Before concluding this post, perhaps mention ought to be made of a rather interesting development that had taken place some time back in a related context. On May 14-15, 2009, the Cochin University for Science and Technology (CUSAT) had organized a national conference on Exceptions and Limitations to the Copyright Act, 1957, wherein G.R. Raghavender, the Registrar of Copyrights, had presented his views on The Use of Works for Social and Cultural Purposes in the Copyright Act, 1957. Therein, he appeared to have favoured a much wider interpretation of the term “bona fide religious ceremonies” as it has been used in Section 52 of the Act. He carefully considered whether the exceptions provided under the said provision is in accordance with the standards prescribed by Article 9(2) of the Berne Convention of 1886 and the three-step test envisioned therein. For a detailed version of his analysis, see here. Among the socio-cultural exceptions envisioned under the Brussels Revision Conference of 1948, mention had been made of “limited exceptions…allowed for religious ceremonies, divine worship and military bands, charitable performances, public concerts organized on the occasion of particular festivals or holidays.”

A comparative perusal of such exceptions allowed by the copyright law regimes under different jurisdictions will reveal that social exceptions include basically playing of musical works or sound recordings for benefit of club, society or other charitable organisation or these works played by an amateur club or orchestra or a music group performing popular music at social gatherings for non-commercial or non-profit purposes. While USA and Canada have provided exceptions for agricultural, horticultural and industrial fairs, Hungary for example, allows exceptions for use of works by shops for entertaining customers and for increasing income.

A divergence in the different approaches can be perceived as far as religious exceptions are concerned. In Austria and Iceland, for example, the author is entitled for remuneration when his works are used for religious purposes such as official church functions. On the other hand, countries like India have provided exceptions for the use of works for religious assembly and for divine worship, provided such performance is only for non-profit or non-commercial purposes. According to Mr. Raghavender, exceptions for use of works for social and cultural purposes owe their origin to the diverse social or cultural background, local customs and traditions and circumstances which are unique to each country of their origin. He went on to say that as far as the Indian legislative provisions are concerned, to qualify as an exception u/s 52, the concerned clubs, societies or other organizations had to be not established or conducted for profit and the main objectives of the performance have to be charitable & concerned with the advancement of religion, education and social welfare. However, sound recording may not be played by anyone with a view to gain, e.g. disc jockeys and performers are not paid any remuneration for such performance. Moreover, no profit must be made from any events where such sound recordings are played, any proceeds from charges for admission have to be ploughed back into the organization which solely for the benefit of the organization and any proceeds made from any goods or services sold at events where sound recordings are played have to be similarly used. Mr. Raghavender also raised a few incisive questions as to whether the different marriage ceremonies under the Hindu, Muslim and Christian laws can be considered to be a “bonafide religious ceremony”, especially in a country like India, where culture and marriage traditions are intertwined and music adds to that culture, thereby qualifying as an avenue for personal and group expression and associated with ceremony and ritual. He continued to apply the Berne Convention’s three-step test to such ceremonies and concluded that they pass the same in most cases. [Step 1: ‘certain special cases’, Step 2: “does not conflict with a normal exploitation of the work”, Step 3: “does not unreasonably prejudice to the legitimate interests of the right holder”]. While dubbing Section 52(1)(za) similar to the doctrine of ‘minor exceptions’ or de minimis exceptions, he concluded that “there is a need for making a distinction between normal music performance during wedding reception and performance by disc jockeys or VJs or film actors and popular singers engaged through event managers after paying substantial amount of remuneration as the latter is in conflict with normal exploitation of the work by the author or right holder.” The perspective offered by him thus indicates a much broader interpretation of “religious ceremonies” than the one that the Gujarat High Court had indirectly favoured in this case.