[This guest post is authored by Anjali Baskar. Anjali is a fourth-year student pursuing B.B.A. LL.B. (Hons.) from School of Law, Christ University, Bengaluru. She is keenly interested in exploring various fields in law, especially IP, Media & Entertainment.]
(Unsatisfactory) Track Record vis-à-vis Section 52(1)(za)
Last time the court tried to interpret Section 52(1)(za) regarding playing of copyrighted sound recordings (back in October 2022), it resulted in an ‘amicable’ settlement between the parties, being PPL (Plaintiff) and an event management company (Defendant) (para 7).
As mentioned in an earlier post here, prior to the settlement, the Court had asked for a ‘written note of submission’ on the issue. The 85-page written submission by appointed expert Dr. Arul George Scaria, arguably one of the most comprehensive analysis of the intent behind Section 52(1)(za), was taken on record (para 11) despite the settlement. Nevertheless, when the issue popped up before the Court again in Ten Events and Entertainment v. Novex Communications Pvt. Ltd. it appears the Delhi High Court has not considered it, while dismissing the application against the alleged threat of legal proceedings.
Though the central issue of this case arose by virtue of Section 60 conjointly with Section 52(1)(za), this piece will be restricted to the Del HC’s observations on Section 52(1)(za) (para 182 onwards) and not on the other issues as I think it is necessary to highlight what I believe is a problematic or erroneous interpretation of the exception.
In Part I of this Post, I will summarise the material facts and arguments in the dispute which led to the Court’s deliberation on Section 52(1)(za). In Part II, I will analyse the Court’s observations on this relevant fair dealing provision, their interpretations of various phrases therein and the precedents they have analysed to decide against the plaintiff. In Part III, I will assess the future implications of the judgement and determine whether the Court’s reasoning was faulty.
Part I – Material Facts and Arguments
The plaintiff, Ten Events, is an event management company that organizes private extravaganzas and wedding ceremonies in luxury hotels, for which they often hire DJs to play songs. The dispute arose when these hotels received calls from Defendants 1 to 3, including PPL (Note: Novex & IPRS were intervenors in the October 2022 case), which led them to write to the plaintiff, asking them to obtain a NOC/license from these defendants. This in turn led to the plaintiff suing the defendants for their alleged groundless threat of legal proceedings under Section 60.
The Court concluded that as per the requirements of Section 60 the plaintiff is neither a “person aggrieved” (as wording of letter indicate liability to hotel/DJ and does not constitute “infringement threat”) nor was there any “acts which have already been communicated” (asked to obtain NOC before these events occur/songs are played (para 72)) and thus dismissed the application. Interestingly, in doing so, the Court decided to venture deeply into the interpretation of Section 52(1)(za), since the plaintiff sought ‘omnibus application’ of the exceptions under the provision over use of sound recordings in all the marriage-related events.
|Refused to obtain a license despite the correspondence from the hotels since Section 52(1)(za) exempts “any person…bonafide religious ceremony” from the liability of Section 51. (para 15)||Plaintiff does not satisfy Section 52(1)(za)’s Explanation for “wedding ceremonies” as the copyrighted songs in question are for entertainment purposes, being film songs and thus of non-religious colour. (para 29) Such religious ‘undertone’ is required even for social festivities, as they do not include any celebrations or extravaganzas before or after the marriage. (para 30)|
|Relied on public notice which clarified that “utilization of any sound recording…including a marriage procession and other social festivities associated… no license is required.” (para 26)||Such functions should satisfy the ‘bonafide’ test, which would be decided on a case-to-case basis/question of fact. (cited Novex Communications v. Union of India, which quashed the public notice – para 6 of the October 2022 order)|
|Section 52(1)(za)’s Explanation applies to both: “including a marriage procession AND other social festivities…” (para 15)||Playing songs for a marriage procession has different implications from playing at the social festivities associated therewith and that the plaintiff was only objecting to paying license fee for the latter. (para 62)|
Part II – Court’s (Narrow) View of “Bonafide (Marriages)” and “Social (Festivities)”
A. Court’s Identification of Section 52(1)(za) Terms and Requirements
- Three Tests: Court laid down that claimant needs to satisfy the following to claim exemption from liability under Section 52(1)(za):
“the festivity in question is a social festivity; the festivity is associated with the marriage; and the festivity is bona fide” (para 189)
- Festivities [Section 52(1)(za), Explanation]: Court claimed that a blanket exemption to allow “all marriages and associated ceremonies” would be an ‘omnibus declaration’ and should instead only ipso facto apply to those festivities, processions and/or ceremonies which are social and bonafide. (paras 190-192)
- Bonafide [Section 52(1)(za), Main Content]: Court did not exactly define what ‘social’ meant beyond the bonafide requirement (para 188), but relied on Devendrakumar Ramchandra Dwivedi v. State of Gujarat to reiterate that it means non-profit performances, devoid of any commercial purpose or private financial gain.(paras 194-195) However, social festivities do not require the presence of any religious character. (paras 186, 188)
B. An Order of Contradictions and Convolutions
The Court has not explained how to satisfy the tests they laid down [Part II, A(a)] as they have ignored the following factors:
- Placement of Words
Court claims that the bonafide condition is for all marriage-related ceremonies (para 188), but “bonafide” is written before “religious ceremony” in the ‘Main Content’ and not before “marriage (procession)” in the ‘Explanation’ of Section 52(1)(za), which states that religious ceremonies include all marriage ceremonies and its accompanying social festivities. This implies that the requirement to be bonafide is only for “religious ceremonies” and that all genuine marriage-related ceremonies are per se “religious ceremonies” even if they don’t have a religious aspect.
“Social festivities” is used in the explanation of Section 52(1)(za) (“For the purpose of this clause, religious ceremony including a marriage procession and other social festivities associated with a marriage.”) in lieu of other words, such as “rituals”, “ceremonies”, “traditions”, “rite”, “customary”, “solemnization”. This indicates that these festivities are NOT required to be in the nature of marriage, i.e. required in furtherance/performance thereof or only during the marriage (rebutting Part I – Defendant’s Arguments, para 30 – “not include any celebrations before or after marriage”).
Legislative notes on 1992 2nd Amendment Bill (pg. 157)and Section 17(7) of 1994 Amendment Act indicate that “all” or “any” social festivities associated with marriage in light of the ‘socio-cultural’ context, thus intending a ‘broad reading’ of the provision (paras 39-42 of Prof. Scaria’s written submission), but at the same time, obviously not including any celebratory events after the completion of the wedding functions, such as anniversaries or ‘silver jubilees’.
- Wrongly Applying Previous Decisions
To explain the ‘non-profit’ requirement of Section 52(1)(za) [Part II, A(c)], the Court quotes para 12 of Devendrakumar (supra) in para 194, which does not even deal with Section 52(1)(za), as the para speaks about other sub-clauses: ‘performance in an enclosed room or hall…for the common use of the residents in any residential premises’ [Section 52(1))(k)] and ‘performances…in an amateur club or society’ [Section 52(1)(l)].
Further, para 14 was quoted by the Court to weaken the plaintiff’s case though it actually benefits it, because the para states that all sub-clauses of Section 52(1) talk about exemptions for educational, religious and charitable reasons and not for private and/or financial gain. Coupling this logic with Section 52(1)(za)’s result in conclusion that marriage festivities are free from liability, because they fall under the religious category above. (para 197)
- No Bollywood Songs?
The Bench initially states that social festivity does not require a religious element character [paras 186-188] and that “all religious ceremonies, as also marriage processions, are always non-profit/non-commercial events…” (para 196). However, they later erroneously applied the golden rule of interpretation, as laid down by the Supreme Court in Shailesh Dhairyawan v. Mohan Balkrishna Lulla and Richa Mishra v. State of Chhattisgarh, to make a ‘qualitative distinction’ for social festivities between a copyrighted song playing in marriage occasions AND ‘hit Bollywood’ songs being played for remuneration, claiming that the latter is not exempted from liability as it is for a profit motive (thereby agreeing with Part I, Defendant’s Arguments, para 29). The Court then states that it is refraining from returning a final opinion on whether ‘such commercial exploitation of copyright recordings, in extravagant wedding celebrations would be entitled to the explanation to Section 52(1)(za). This leaves a number of questions. What is the relevance of the word ‘extravagant’ here? And without a clear ruling on this playing entertainment music, does this not mean that license fees will continue to be demanded, as there is no remedy for those in the defendants’ shoes?
This leads to the absurd implication that in order to be clearly exempted under Section 52(1)(za), one must not organize/hire anyone at all to play the music [Part II, B(e)]. This in turn implies that one should stick to playing songs which are not for ‘commercial/entertainment-like’ consumption (NON-film/commercial/popular), but also says these songs don’t need to have a ‘religious flavour’, which leaves major confusion as to which ‘marriage songs’ are left to be exempted.
Thus, Del HC also contradicted their own acknowledgment in the 11th May 2022 Lookpart order (para 8; also quoted in para 4 of October 2022 order) that “kind of music played [at marriages] typically ranges from devotional or spiritual music for the purposes of the marriage ceremony to popular music in various languages” and that ”apart from the actual marriage ceremony itself, there are other ceremonies such as…cocktail parties (rebuts the ‘extravaganza’ point in Part I, Defendant’s Arguments, para 30), dinner, mehndi, sangeet…” It thus holds no logic to consider the privilege of the provision to be limited to the part of marriage ceremony where only religious ‘hymns’ and ‘bhajans’ are played.
- Fate of Facilitators
Marriage parties hire and pay for professional services, including event managers (such as Ten Events) and DJs who are hired by the parties themselves or in turn hired by these event management companies on behalf thereof (para 2). The Court in their ‘qualitative distinction’ [Part II, B(d)] implies that since a hired professional DJ for a marriage ceremony would obviously not agree to perform for free, the marriage parties should arrange for someone within their social circle to professionally curate music playlists gratuitously for the entire marriage event.
The Del HC also ignored PPL v. Punjab, which clearly stated that “hiring a DJ to perform at any marriage-related event is surely a function that is connected to marriage, as the DJ does not contribute to conducting of the marriage.” (paras 65-66 of Prof. Scaria’s written submission). Legislative intention [Part II, B(b)] should be used to construe that Section 52(1)(za) immunity is extended to such facilitators as well, especially because they actually make the playing of the songs at the event possible.
Part III – Impact Assessment: Future Implications of Del HC Judgement
The Court did not confirm/deny the distinction made by the defendants [Part I, Defendant’s Arguments, para 62] except while mentioning social festivities [Part II, B(d), para 196], so I presume that the Court requires both marriages and social festivities to be bonafide. However, they seem to affirm the other arguments by the defendants throughout, only to abandon them and try to assuage both sides at the end of para 196, stating that it can’t be “easily resolved” and requires further deliberation.
Excluding playing of commercial songs within a commercial establishment for “extravagant wedding celebrations” (para 196), such as a hotel in this case, would lead to incorrect application of Section 52(1)(za) and inconsistent future decisions, simply because it could not have been the intention of the law makers to only include non-commercial songs or those with a more ‘marriage-appropriate’ feel under Section 52(1)(za). The observations by the Court in this regard arguably border on ‘moral policing’.
Finally, the Court has not applied the tests laid down by them in Part II, A(a) or give meaning to the words used therein. They define “bonafide” to mean ‘without fraud or deceit’ (para 188), but does not explain how the plaintiff is causing some sort of “deception” by playing music at a wedding ceremony, as there is no evidence from the facts that neither the hotel nor plaintiff is planning to conduct a fake marriage under the garb of the provision to avoid taking license.