Analyzing the Contentious Section 52(1)(za) of the Copyright Act, 1957

• BACKGROUND

Though largely unorganized, in 2016, the Indian wedding market was estimated at ₹3.68 trillion, according to a KPMG report titled Market Study of Online Matrimony and Marriage Services in India. Now, after two slow years due to COVID, the Indian Wedding Industry is set to increase by a whopping 200%. Each of these weddings has several events and music is an integral part of every event. Consider the size of the wedding industry and now think about the size of the wedding music industry. It seems unfair then that playing music at weddings is considered fair use, with a constant exploitation of copyright-holders.

• PROVISION INVOLVED

Section 52(1) of the Copyright Act, 1957 deals with the fair use provision, that is, it exhaustively lists the exceptions to copyright infringement. Sub-section (za) further states that a work used in any bona fide religious ceremony or official ceremony held by the Government as reproduced below:

(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.]

Further, by a 2019 Notification it was clarified that music played during the marriage procession and other social festivities associated with a marriage does not amount to infringement of copyrights and hence no license is required to be obtained for the said purpose. An analysis of this Notification can be found here.

• RECENT RULING

The applicability of this exception under Section 52(1)(za) was discussed in the recent case of Phonographic Performance Ltd (PPL). v. Lookpart Exhibitions & Events Pvt. Ltd (Lookpart)  and whether this provision could be extended to hotels and other users in events related to weddings. In this case, PPL sued Lookpart on the grounds that the latter was using and exploiting the former’s copyright in various music by playing the same at various social events in commercial avenues. Look part took the defence of fair use under Section 52(1)(za) thus causing a discussion into the extent of the provision. Interestingly, an expert, Prof. Arul George Scaria was appointed in the matter under Rule 31 of the Intellectual Property Rights Division Rules, 2022. In his 85 page submission, he provided some unique insights:

1. The contentious provision has been drafted into the Act so as to protect and promote the cultural diversity of India. The provision has been drafted broadly by using words such as ‘social festivities associated with marriage’, purposely widening its ambit. Further, the Supreme Court in M/s Knit Pro International v. State of NCT of Delhi clarified copyright infringement to be a cognisable and non-bailable offence. However, owing to the lack of mandatory registration and examination system, copyright infringement cases are prone to unreliable and unpredictable police interventions, which can be extremely embarrassing, especially during a wedding celebration. To save a user from such embarrassment, Section 52(1)(za) should be interpreted broadly.
   
2. The liability of the intermediary here is squashed since the exception is not only limited to the end user but also the facilitator, as was stated in the DU Photocopy case.
   
3. Reference was made to the Berne Convention where it was agreed that parties can have provisions similar to Section 52(1)(za) so as to exempt minor exceptions. Power to the same was given when instances of 66 countries was enumerated. Prof. Scaria argues that the loss of revenue to owners of copyright, arising from these minor exceptions might not be substantial and thus use of sound recordings during wedding ceremonies can qualify as minor exceptions having minimal impact on the commercial interests of the copyright holder.
   
4. Lastly, Prof. Scaria argues despite wedding and wedding ceremonies like baarat occurr in public places, access to these events is restricted to friends and family members and thus suggested the court make a determination for clarifying if such performance during these events would mean public performances

In the present case, although Prof. Scaria made his submission, no final court order was passed on the same since the parties to dispute chose to settle the matter.

Personally, I believe that such a reasoning is flawed for the following reasons:

1. The wedding industry is highly commercialised and that wedding music should not be considered a ‘minor’ exception.
   
2. Given that India as a nation has a culture of ‘Big Fat Indian Weddings’, the use of music spanned over a 7 day wedding is quite substantial.
   
3. I also believe that Indian weddings are highly public in nature. Even though the attendance at wedding events are invite-only, most events are attended by a large number of people and cannot be termed as ‘friends and family’ only.

• NEXUS WITH COMMERCIAL GAIN

A distinction has to be made between wedding events organised by families versus those organised by event planners since for the latter it involves an element of commercial gain. As a result, the question to evaluate is whether the commercial profit is derived from the use of music and DJ events organised by the planner at such marriage ceremonies, or if the commercial profit is derived from organising the event, which is the wedding, and music being played at such events is merely an incidental aspect of the event.

A loophole is thus brought about in Section 52 (1) (za) wherein no distinction is made between personal events and events that cause commercial gain, as is brought about in Section 52(1)(k). I reckon that such a loophole exists since the section was framed at a time when the use of official wedding planners and DJs were negligible, if any. However, now, the exploitation of music at these events has increased manifold and therefore an amendment to the section must be brought about.

• CONCLUDING REMARKS

The Copyright Act was brought about for the protection of the commercial value of art. The intention was to protect the rights of authors over their creation so as to promote and protect creativity. When a provision like Section 52(1)(za) continues to operate today without limitations, it alienates the author from his work allowing free and indiscriminate use of their work. I believe that allowing commercial establishments to continue exploiting music in the name of wedding events is contrary to the ethos and founding principles of copyright law and a limitation must be carved out in this contentious section disallowing events involving commercial gain to take harbour under this provision.