Bombay High Court: Petitioner, Phonographic Performance Limited filed the present petition under Article 226 of the Constitution seeking quashing and setting aside of the impugned Circular dated 30-01-2024 issued by Respondent 1, which stated that the performance of musical works etc., at religious ceremonies, including weddings did not amount to violation of the Copyright Act, 1957 (‘the Act’). The Division Bench of M.S. Karnik* and Valmiki Menezes, JJ., opined that respondents entered into the realm of interpretation of Section 52(1)(za) which was the domain of the competent Court to determine in the facts and circumstances of each case. The Court held that the impugned Circular was illegal and bad in law and thus, the impugned Circular dated 30-01-2024 issued by Respondent 1 was quashed and set aside.
Background
Petitioner provided a ‘single window’ for consumers to get access to petitioner’s voluminous repertoire and owns and/or controls the public performance rights, with more than 40 lakh international and domestic sound recordings. Petitioner was the copyright owner of the public performance rights in the sound recordings in its repertoire on the basis of assignment of the relevant copyrights in its favour by music labels who had assigned/licensed the said right. These assignors of petitioner executed an assignment deed under Section 18 of the Act, in respect of its sound recordings with petitioner wherein they assigned the public performance rights of the sound recordings to petitioner and thus, petitioner was the owner/controller of the sound recordings to the extent of public performance of the same and therefore was exclusively entitled to grant licenses for communication to the public/public performance of its repertoire of sound recordings.
In 2014, due to the amendment brought in the Act, petitioner surrendered its registration as there was a statutory requirement for all the registered Copyright Societies to re-register themselves. Since 2014, petitioner was assigned the right of public performance of sound recordings by various music labels and issuing license in respect of the same as an owner. Petitioner issued licenses under Section 30 of the Act for communication/public performance of its vast repertoire of sound recordings and grants licenses, on an as-is-where basis to its licensees.
On 30-01-2024, Respondent 1 issued the impugned Circular and by a legal notice dated 27-02-2024, petitioner called upon Respondent 1 to withdraw the impugned Circular. Petitioner stated that the impugned Circular impinges on its right to initiate civil/criminal proceedings for infringement of its copyright and by sending the impugned Circular to the police and encouraging them to act against the legitimate collection of royalties by petitioner, respondents were hampering petitioner’s statutory right to take criminal action against infringers. It was submitted that by way of the Circular, Respondent 1 expanded the scope of Section 52(1)(za) of the Act and hence, had overridden the statutory provision which was not permissible in law.
Analysis, Law, and Decision
The Court took note of the public notice dated 24-07-2023 issued by the Central Government which formed the basis for issuance of the impugned Circular dated 30-01-2024 by Respondent 1 and further noted that the impugned circular stated that “performance of musical works etc., at religious ceremonies, including weddings does not amount to violation of the Act and insistence upon permission/NOCs from the copyright societies is in violation of Section 52(1)(za) of the Act and is adversely affecting not only the citizens but also the economic/tourism activities in the State. Therefore, no hotel or any Copyright Society shall insist upon any permission/NOCs for performance of musical works or other musical recordings for religious/festivals including wedding/marriage events and other social festivities associated with marriage”.
The Court relied on Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, wherein the Supreme Court observed that when a person produced something with his skill and labour, it normally belonged to him and the other person would not be permitted to make a profit out of the skill and labour of the original author and it was for this reason the Act gave to the authors certain exclusive rights in relation to the certain work referred in the Act. The object of the Act was to protect the author of the copyright work from unlawful reproduction or exploitation of his work by others. One of the key requirements was originality which contributes and had a direct nexus in maintaining the interests of the author and the public in protecting matters in public domain.
The Court noted that for infringement of copyright, civil remedies were provided in Section 55 of the Act and the owner of the copyright was entitled to all such remedies by way of injunction, damages, accounts, and otherwise as were or might be conferred by law for the infringement of a right. The Court further took note of Section 52 which contains provisions making certain acts not to be infringement of copyright and the expression “bona fide religious ceremony” included in Section 52(1)(za). The explanation to Section 52(1)(za) provided that for the purpose of clause (za), religious ceremony includes “a marriage procession and other social festivities associated with a marriage”.
The Court stated that therefore, if a sound recording was communicated to the public during any bona fide religious ceremony and as the words “religious ceremony” includes “a marriage procession and other social activities related with a marriage”, a dispute might arise as to what was a “bona fide religious ceremony” and/or the other social festivities associated with a marriage. Thus, the Court opined that as per Section 52(1)(za), the communication to the public of a sound recording of musical work or of a sound recording during any bona fide religious ceremony including a marriage procession and other social festivities associated with a marriage could not be construed to be an act infringing the copyright.
The Court opined that the circular in expanding the scope of Section 52(1)(za) was bound to have consequences disturbing the balance which the Act seeks to achieve between the interest of the rights of the author/owner of the copyright and those claiming protection of Section 52(1)(za). The Court stated that the circular, though claimed to be informatory in nature to make the citizens aware about the provisions of Section 52(1)(za), had the effect of distorting the provisions of Section 52(1)(za). Thus, the impugned Circular was much beyond the scope of Section 52(1)(za).
The Court stated that the Circular covers religious ceremonies/festivals including weddings/marriage events and other social festivities associated with marriage. Respondents, in issuing the circular, have undertaken an interpretative exercise of adding words in the circular which were not part of Section 52(1)(za), that is, Section 52(1)(za) uses the term ‘marriage’ whereas the Circular uses the word ‘wedding’ in addition to the ’marriage’ and that too in the context of an event. The purport of Section 52(1)(za) appears to be that the Act in respect of which it is claimed that there was no infringement of the Act must be strictly within the umbrella of the expression ‘bona fide religious ceremony’.
The Court stated that the Circular did much more than just informing the public of the provision of Section 52(1)(za) and interfered with the enforcement mechanism provided in the Act for exercise or enforcing rights of copyright societies under the Act, as in the Circular, the field units were instructed to take strict action against any hotel or copyright society raising illegal demands of royalties or any fees for performance of musical works or other musical recordings at religious ceremonies/festivals including weddings/marriage events and other social festivities associated with marriage.
The Court opined that the Circular was not an informational document aimed at keeping the public informed of their rights and thus, respondents entered into the realm of interpretation of Section 52(1)(za) which was the domain of the competent Court to determine in the facts and circumstances of each case. The Court held that the impugned Circular was illegal and bad in law and thus, the impugned Circular dated 30-01-2024 issued by Respondent 1 was quashed and set aside.
[Phonographic Performance Ltd. v. State of Goa, 2024 SCC OnLine Bom 2713, decided on 13-08-2024]
*Judgment authored by: Justice M.S. Karnik
Advocates who appeared in this case:
For the Petitioner: Nitin Sardessai, S. S. Kantak, Senior Advocates; Pulkit Bandodkar, Ankur Sangal, Sucheta Roy, Tarun Rebello, S. Sardessai, Saicha Dessai, Simoes Kher, and Ankit Arvind, Advocates.
For the Respondents: Deep Shirodkar, Additional Government Advocate; Y. V. Nadkarni, Shailesh Redkar and S. Khadilkar, Advocates.
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