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COPYRIGHTED MUSIC AT WEDDING FESTIVITIES: THE QUESTION OF INFRINGEMENT

February 1, 2024

*Ms. Aparna Tripathy and Mr. Udhav Hari Agarwal

INTRODUCTION

Marriages and wedding festivities have been an integral part of Indian society since time immemorial. Music has also been an inseparable element of such festivities with various events being held surrounding the same. This cultural phenomenon has also found recognition in legislation such as the Copyright Act. Section 52(1)(za) of the Copyrights Act, 1957, protects the use of “musical work” at “any bonafide religious ceremony” which is inclusive of “marriage procession and other social festivities associated with a marriage” from being constituted as an infringement of copyright. In the wake of evolving societal norms and cultural dynamics, wedding ceremonies have undergone a profound transformation. In contemporary times, weddings have transcended their traditional boundaries, expanding beyond mere ceremonial affairs to encompass a multifaceted spectrum of events. This paradigm shift is evident in the incorporation of numerous pre and post-ceremony events, adding layers of complexity and diversity to the overall wedding culture. The expanded scope of modern weddings now encompasses a variety of activities, celebrations, and rituals that extend beyond the core matrimonial proceedings. From elaborate pre-wedding rituals and festivities to post-ceremony events, the landscape of wedding celebrations has become increasingly intricate and diverse. These additional dimensions introduce new challenges and complexities, particularly in the realm of copyright law, prompting a critical examination of the extent to which Section 52(1)(za) of the Copyright Act pledges to shield individuals from potential liabilities related to copyright infringement.

The Indian Judiciary, over various instances, has found itself grappling with the intricate nuances surrounding the interpretation and limitation of Section 52(1)(za) of the Copyright Act. This legal provision, situated within the broader framework of copyright law, has become a focal point for judicial deliberation as it pertains to exceptions and limitations to the exclusive rights granted to copyright holders. The interpretation and limitation of this section, therefore, necessitate a judicious examination of its scope, boundaries, and implications on both creators and consumers of copyrighted content. In the course of its adjudicative responsibilities, the Indian Judiciary has been confronted with multifaceted issues related to Section 52(1)(za). One significant aspect involves defining the parameters of the exceptions laid out in the provision.

One of the earliest cases that discussed this provision in depth was the case of Devendrakumar Ramchandra Dwivedi v. State of Gujarat. In this case, while referring to section 52(1)(za) of the Copyright Act, the Hon'ble Gujarat High Court discussed in length the jurisprudential reasoning behind the section and hence the limitation to its protection. While talking about the exemptions provided by the section, the Hon'ble High Court drew attention to the fact that “Section 52(1) exempts a variety of limits on the rights of the copyright owner in the form of compulsory licenses, complete exemptions from liability and other privileges such as fair or honest use”. The Hon’ble court explained that such exemptions apply to “non-profit performances of music and other non-dramatic works” and the objective behind allowing the same is “to exempt live performances of such works when there is no commercial purpose and when there is no admission charge” from any threat of infringement and liability. It was based on the same that the Hon'ble High Court held that "marriage procession or other social festivities associated with a marriage, would not amount to infringement of copyright" as in such a case "the performance is given to a non-paying audience”.

This seemingly simple explanation was further discussed in a nuanced manner by the Hon'ble Punjab and Haryana High Court in 2011 in the case of M/S Phonographic Performance v. State Of Punjab, where the Hon'ble High Court while analyzing the elaborate industry that weddings have become, noted that there are various festivities associated with marriages where performances are showcased by artists such as DJs and therefore such performances are associated with marriages, however, “It is not as if a DJ's performance amounts to conducting the marriage” and hence “Marriage is definitely different from the functions connected to the marriage”. Therefore the Hon'ble High Court held that in such cases, these performances would not enjoy protection under section 52(1)(za) of the Copyright Act and hence the copyright owner in such a case "shall be entitled to enforce the rights secured under the Act, both through civil law as well as by setting criminal law in motion”.

The Hon'ble Delhi High Court while understanding the possible confusion that could arise with the distinction being drawn between wedding rituals and wedding festivities in the case of Phonographic Performance v. Look part Exhibitions and Events Pvt. Ltd. stated that "when music is to be played for the purposes of marriage ceremonies or other social events connected with marriages, including a marriage procession, the use of music is deemed to be fair use, and hence, no license would be required”. To justify their holding, the Hon’ble court explained that “in the Indian context, music is an integral part of any wedding or marriage ceremony” and the fact that such a distinction is not possible to be drawn as the kind of music being used in such events may range from “devotional or spiritual music for the purposes of the marriage ceremony to popular music in various languages”.

Later, owing to the lack of clarity and acting as an adhesive to all the judgments above, the Hon'ble Delhi High Court in the case of Ten Events and Entertainment v. Novex Communications Private Limited & Ors. stated, “Section 52(1)(za) specifies that it is only the communication to the public of a sound recording in the course of any bona fide religious ceremony which would not amount to copyright infringement”. While drawing a clear separation between the commercial and non-commercial aspects of a wedding, the Hon'ble court laid down a three-condition rule to determine the same stating that, for a function to get protection under section 52(1)(za) of the Act, “it would be necessary for the claimant so asserting that (i) the festivity in question is a ―social festivity, (ii) the festivity is associated with the marriage and the festivity is bona fide”. However, it is necessary to note that such an event should "not intended to serve any commercial purpose and not for private financial gain”. While giving an example to determine the commercial aspect, the Hon'ble High Court stated that, "There is, clearly, qualitatively a distinction between such a case, and a situation in which copyrighted recordings of, for example, hit Bollywood songs, are played by DJs, often for huge remunerations. The motivation of the DJ who plays the recordings, on such occasions, is clearly commercial” and hence it would not be eligible for protection under Section 52(1)(za) of the Act.

In a recent July 2023 public notification by the Ministry of Commerce and Industry, the Ministry further clarified that wedding festivities fall under the scope of Section 52(1)(za) of the Act and therefore are entitled to protection from claims of infringement.

Conclusion

To sum up, it can be said that the Hon'ble courts have on various occasions stated the use of copyrighted music in marriages and various other ceremonies related to it as fair use of the same and acknowledged the same as an exception for infringement under the Copyright Act, 1957. However, any commercial use of the copyright when done without a license is something that falls beyond the principle of fair use and has therefore been said to amount to copyright infringement. The Hon'ble courts, through their judgments, have drawn a clear distinction between the commercial and non-commercial aspects of events, such as marriages, and hence laid down that the events associated with marriages are exempted from infringement to the extent that there is no financial gain from the same. Therefore, as a collective understanding of the section, one can say that the person obtaining financial or commercial gain from the use of copyrighted music at wedding festivities falls outside the scope of fair and bona fide use of such material owing to the commercial gain from the same, and thus does not fall under the protection of section 52(1)(za) of the Act, and therefore, should obtain a license for such use, failing which they shall be liable for infringement while the non-commercial aspects are protected from the same.

References:
  1. Indian Copyright Act, 1957, § 52(1)(z a), No. 14, Acts of Parliament, 1957 (India).
  2. Devendrakumar Ramchandra Dwivedi v. State of Gujarat, 2010 (43) PTC 303(GUJ) GUJ(DB).
  3. M/S Phonographic Performance v. State Of Punjab, Civil Writ Petition No.7772 of 2011.
  4. Phonographic Performance v. Look part Exhibitions and Events Pvt. Ltd., CS(COMM) 188/2022 & I.A. 4772/2022.
  5. Ten Events and Entertainment v. Novex Communications Private Limited & Ors., 2023:DHC:3269.
  6. No. P-24029/56/2023-IPR-VII Government of India Ministry of Commerce & Industry Department of Promotion of Industry and Internal Trade (Copyright & Design Section)
Author:

* Ms. Aparna Tripathy
Student, Symbiosis Law School, Pune.

* Mr. Udhav Hari Agarwal
Student, Symbiosis Law School, Pune.

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.