Despite Expert’s Submissions No Clarity on Section 52(1)(za) of Copyright Act, as Parties Settle!

In May, 2022, we reported that the Delhi High Court appointed Prof. Arul Scaria, under Rule 31 of the IP Division Rules 2022, as an expert in a copyright dispute, for assistance in interpreting the nuances of Section 52(1)(za) of Copyright Act. Now after almost five months since the appointment, the Court has passed an order (pdf) stating that the parties to the dispute have settled the matter out of court. (Note: I couldn’t find a record of the terms of the settlement and would really appreciate it in case any reader has an idea about what the parties agreed to.) Recognizing the efforts undertaken by the expert, the Court did take the written submissions by Dr. Scaria on record, however, it cautioned that it is not ruling on the legal issue. In this post, I shall discuss in detail the submissions made by Prof. Scaria and the implications of the ruling by the court.

Brief Background

The dispute was brought by Phonographic Performance Rights Society (Plaintiff), a copyright society against Lookpart Exhibitions and Events Pvt. Ltd (Defendant), an event management company. Plaintiff alleged that Defendant’s unlicensed use of former’s sound recordings in commercial venues for events like weddings amount to infringement of its copyright. The Defendant on the other hand pled the exception of fair use under Section 52(1)(za), which protects unauthorized use of a protected work during any bonafide religious ceremony including marriage and its other social festivities, and argued that its use of the protected sound recording in events like weddings and associated ceremonies does not require it to take any licenses from the Plaintiff. While passing the earlier order in May, 2022, the Court observed that music is an intricate part of wedding ceremonies in India and would include aligned functions like sangeet and mehndi etc. Regardless, considering the large-scale implication of the issues involved, the Court appointed an expert (Prof Scaria) under the above rule, upon payment of due remuneration. The Court then mandated the appointed expert to “file a written note of submissions on the issue raised in the present case….consider the legislative history of the provision Section 52(1)(za) of the Copyright Act, 1957, and cite the relevant case law, from India and abroad on the question of fair use and fair dealing.”  

On July 6, 2022, M/s. Novex Communications Pvt. Ltd. and The Indian Performing Right Society Limited (IPRS) sought intervention as interested parties in the suit, which was permitted by the court citing the nature of the issues involved. On October 10, 2022, the court was informed that the parties have agreed to settle the disputes amicably and in light thereof, the suit was withdrawn. However, acknowledging the assistance rendered by the appointed expert, the court took the written submission filed by Prof. Scaria on record and clarified that it has not considered the merits of the matter and is not ruling on the legal issue. 

Written Submission by the Expert 

The 85-page document submitted by Prof. Scaria is perhaps the most detailed and nuanced assessment of Section 52(1)(za). The submission encapsulates the legislative history and essential case laws from India and abroad as well as an assessment of international practices and foreseeable ramifications of a narrow interpretation of Section 52(1)(za). The notable findings/ recommendations from the report are summarised below: –

1. On cultural autonomy, fundamental right to marry according to one’s traditions: The submission elucidates that music is an intrinsic part of wedding ceremonies in India. It highlights the special place of music in different cultures, traditions/ ceremonies across India. Thus, reading it to fall within the scope of inseparable traditions associated with wedding ceremonies, the report explains that the Constitution protects one’s right to perform marriage and engage in festivities according to one’s traditions under Article 21. 
2. On a broad interpretation of Section 52 (1) (za): The submission is based on the understanding that Section 52 (1)(za) has been drafted to cater to the needs of cultural diversity in the country. For this, the submissions highlight 2 points-  1) using the word “including” in the explanation of the provision, in the context of marriage-related activities; 2) using the term “social festivities associated with marriage”, which would include other activities to mark a special occasion instead of “ceremonies”. 
3. On legislative intent: The submission supplements the argument for broad interpretation by relying on the legislative notes of the Copyright (second amendment) Bill, 1992, where the drafters excluded liabilities arising from the unauthorized use of copyrighted material during social festivities associated with marriage. And the absence of any objections to the proposal of Section 52(1)(za) during the Joint Committee on Copyright (Second) Amendment Bill 1992. 
4. On parity with international conventions and best practices: The submission explains that via subsequent discussions on the Berne Convention through Brussels Conference (1948) and Stockholm Conference (1967), it was agreed that parties can have provisions similar to Section 52(1)(za) under “minor exceptions.” To substantiate this understanding, provisions similar to Section 52(1)(za) with minor variations, from 66 countries were enumerated. 
5. On Right to Privacy and Fair Use: The submission relies on K S Puttaswamy v. Union of India to explain that ‘spatial privacy within public spaces’ fall within the essential facet of right to privacy. Thus, ceremonies like Baarat, which though happen in public spaces, carry unwritten restrictions on participation and thus is a private event. 
6. On interpreting Section 52(1)(za) as a shield against unwarranted police interventions: The submission states that the Supreme Court in M/s Knit Pro International v. State of NCT of Delhi has ‘clarified’ that 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.
7. On use by facilitator: The submission inter alia relies on the DU photocopy case and Williams Wilkins case to establish that use of exception under Section 52(1)(za) is not limited to the beneficiary/ the end user and that one may rely on a facilitator like a DJ, event management company to exercise this exception.    
8. On public performance: The submission relies on Garware Plastics & Polyster Ltd. v. Telelink, IPRS v. Aditya Pandey, Supercassette Industries v. Nirulas Corner House to highlight different instances where the performance of a protected work in public places has not been ruled to mean performance in public, owing to private or quasi-private nature of these performances. On basis of this understanding, it argues that 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.
9. On a balanced copyright regime: Lastly, the submission argues for a balance between copyright owners and fair users. Regarding the situation in hand, 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. This inference was made on the basis of the Ernst & Young – FICCI Report which states that the contribution of the revenue to the music industry by public performances was merely 4%.

Assessment and Conclusion 

Citing Phonographic Performance Limited (PPL) v. State of Punjab, Novex Communications Pvt. Ltd. v. Union of India  Prof. Scaria submitted that Section 52 (1)(za) suffers from a very narrow interpretation. The present case could have been a great opportunity to change that. 

However, owing to the settlement in the present case, these cases are still the relevant precedents for interpreting Section 52(1)(za), which unfortunately renders the whole exercise of appointing an expert and taking the submissions on record largely futile. It wouldn’t take much to guess as to the reasons for preferring a settlement here. In the previous order dated May 2022, the Court opined that the concept of “marriage” under the exception will also include associated activities and that music is intrinsic to these ceremonies. The written submission further substantiates this understanding and argues for a broader interpretation of the provision by the court, in line with the legislative intent and international best practices, and the fundamental right to privacy. With these submissions on record, chances were high that this case would have witnessed strong arguments from those in favor of wider rights for copyright owners and also from the ones asking for broader fair use interpretations. However, with the suit being withdrawn now, chances are that the latter of the above will have to live to fight the same fight another day, while the former can easily rely on the narrow interpretations and can still insist onphonographic_final_settlement_decision  licenses to play songs in weddings and other ceremonies.    

Meanwhile, for the same reasons, though the court did take Prof Scaria’s submission on record, I am not sure whether or not it will have persuasive value in future cases. Regardless, it could be extremely helpful for parties in any future cases pertaining to Section 52(1)(za), especially considering that Prof. Scaria has made the report public for anyone to read/ use it.