A piecemeal Public notice from the Copyright Office, Government of India, Ministry of Commerce & Industry [DIPP] notified on August 27, 2019, though a little old, lately caught my attention and left me slightly bewildered.
The notification seeks to clarify the inquiries made by certain interested people, such as, whether a License is required to be obtained for utilization of sound recordings in the course of any marriage related function?
The clarification or the response from the Office states that in view of Section 52(1) (za) of the Copyright Act, 1957, the utilization of the sound recording in the course of the religious ceremony including a marriage procession and other festivities associated with marriage does not constitute copyright infringement, thereby no license is required.
The clarification refers to Sec 52 of the Copyright Act, 1957 to justify the response.
Let us give a glance to Sec 52, it enumerates certain acts that do not result in copyright infringement or consequently, acts which do not require a license, particularly, sub-section (1) (za) of section 52 which states that:
“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.”
It is this explanation that needs attention and a purposive interpretation, the response from the Copyright Office based on the Explanation undermines the rights of the owners of the sound recording to legitimately exploit their work by giving license to the users for Marriage and related festivities. It is pertinent to mention here that the ‘right to communication’ is one of the quintessential rights of the owner of the literary, dramatic, musical, sound recording etc [Rights are enumerated under section 14 of the Act]. As per Sec 2(ff) of the Act ‘Communication’ means making any work or performance available in public. Any communication made in private is usually not considered as copyright Infringement, though it can be debated too. Further, the jurisprudential basis for most of the exceptions is based on commercial/non-commercial purpose or public/private purpose. Such notice gives users a very broad canvas to exploit the work of owners without paying.
Here are a few probing questions that need to be answered by the Authority:
- Do ‘marriage procession and other festivities associated with a marriage’ entail that the DJ playing music during the marriage does not require a license from the appropriate authorities?
- Does the public notice apply as an exception only to the acts of music being played in private by the family members during the marriage or related festivities in a private group?
- Whether Explanation connote marriage procession and related festivities related to a marriage truly like a religious ceremony?
- Whether such exception aligns with the rights of the owners of the copyrighted works given the fact that music is an integral part of the business related to Marriage, is it rational to provide such exception in the Copyright Act, 1957?
It will be a feast to see if another clarification comes from the Authority assuming that Copyright Societies or owners of the sound recordings have already questioned the notice.
Link to the official Public Notice here
Part 2 of this blog will discuss the Indian case laws and similar exceptions that exist in other jurisdictions.
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