Recently on August 13, the Bombay High Court at Goa scrapped the Goa Government’s circular on unauthorised use of sound recordings during weddings. Discussing the order and this long running controversy around use of sound recordings during wedding festivities in India, we are pleased to bring to our readers this guest post by our former blogger Gaurangi Kapoor. Gaurangi is currently an Academic Associate at IIM Ahmedabad. She is interested in copyright and artificial intelligence predominantly with reading law from an interdisciplinary perspective. Her previous posts can be accessed here.
Goa Circular on the Unauthorized Use of Sound Recordings During Weddings Hits a Wrong Note!
By Gaurangi Kapoor
In March 2024, Lokesh discussed a Circular issued by the Government of Goa on Section 52(1)(za) (provision allowing unauthorized use of sound recordings in bona fide religious ceremonies) and reported that it was challenged by Phonographic Performance Ltd (PPL) and Sonotek Cassettes Company before the Court as PPL vs State of Goa. Well, the Court has now set aside the Circular, through its order dated August 13, 2024, for expanding the scope of the provision and interfering with the enforcement mechanism under the Copyright Act.
It is not the first time this has happened. The timeline of such events with regard to Section 52(1)(za) has been clearly laid down by Reva in her previous post and I feel ‘oscillation’ seems to be the perfect word for this never ending debate between the executive and the judiciary.
A Little Bit of Background
The State of Goa issued a Circular on 30th January 2024 (as reported by Herald Goa and reproduced in para 11 page 14 of the decision) in the light of a previous July 2023 public notice given by the Central government on use of sound recordings during wedding festivities. The Goa Circular stated that “(i) no permission or NOC was required to use sound recordings for religious ceremonies including wedding/marriage, (ii) insistence of a permission or an NOC by the copyright societies is in violation of section 52(1)(za) and (iii) strict action must be taken against those copyright societies or hotels which ask for royalty or fees for use of sound recordings.”
PPL took the matter to the Court. It argued that the government, being an executive body, didn’t have the power to clarify/interpret the law by way of a Circular. Since the executive cannot interpret the law, it cannot broaden the scope of Section 52(1)(za) to permit unauthorised use of sound recordings in weddings and related events, particularly when the courts have not allowed such use previously (see here, here, here). They also argued that encouraging authorities to take action against copyright societies/hotels for demanding royalties/fees interferes with the statutory rights of copyright owners to take legal measures against infringers.
What the Court Had to Say?
The Bombay High Court at Goa ruled in favour of PPL and struck down the Circular for being ultra vires and expanding the scope of section 52(1)(za). The Court ruled that the Circular was unlawful because it improperly broadens the scope of Section 52(1)(za) and infringes on the statutory rights of copyright holders. The Circular cannot alter the meaning of the law to permit the use of copyrighted works for any purpose beyond the strict interpretation of ‘bona fide religious ceremonies.’ The Court does not seem to have commented on whether such circulars can interpret provisions (within the scope of the provision). Whether such use constitutes infringement must be determined by the courts based on the specific facts and circumstances. Furthermore, instructing field units to act against copyright societies for demanding royalties or fees disrupts the enforcement mechanisms established by the Act, making the Circular more than just informational.
Analysis-Paralysis
Unlike the previous practice of the executive not including mention of the statutory authority from which it derives the power to issue notices (see here), this time the State of Goa relied on Article 162 of the Indian Constitution in order to prevent abuse of police power since copyright infringement is now a cognizable offence. As has been pointed out by Prof. Scaria in his report, making copyright infringement a cognizable offence may cause undue harassment and embarrassment to the public (see page 6 here). This could especially cause major issues during marriage festivities especially when there has not been a clear ruling from the courts on the legislative interpretation for this either. Since the DPIIT and State of Goa’s notice were issues to prevent abuse of police power, they could have also provided actual instances where police power was used by copyright owners to harass people leaving no scope for any ambiguity and make a solid case for their concerns.
Although this change is welcome, the State of Goa only decided to mention the power when the proceedings began instead of mentioning it explicitly in the notice. Moreover, they forgot to even refer to the current judicial understanding of Section 52(1)(za)!!! It’s a clear case of failing to do proper due diligence! And this isn’t the first time this is happening, I would like the readers to note that the executive has been dragged to the court twice before for issuance of similar notices (see here and here) and doesn’t seem to have learnt the lesson.
In its ruling, the Court highlighted the enforcement mechanism already laid down in the Act for any aggrieved party to protect its rights and take measures when violated. Since the Circular was issued to prevent harassment of the public and prevent misuse of power, Section 60 was underscored by the Court, which allows the party receiving baseless threats of legal action to recover damages or seek injunction. But as pointed out by Anirud, Section 60 has its own set of issues most significant of which is the limited scope of Section 60. As has been discussed by Tejaswini and Praharsh too, Section 60 suits do not hold ground when an infringement suit (with due diligence) is filed before the court. They highlighted that while Section 60 was designed to protect a person from wrongful threats, it does not have the same footing as that of a suit alleging infringement. In the eyes of the Court, the enforcement mechanism strikes a balance between the interests of copyright owners and rights of the public domain, but a remedy like Section 60 would unlikely be effective against vigilant prosecutors like PPL!
Instead of going through so much, one might think a better idea is to ask for permission/NOC by the copyright owners to use sound recordings in their marriage and related events. But if only it was that easy. As reported by Reva, PPL refused to grant NOC for use of sound recordings in sangeet and cocktail parties claiming that the exception does not extend to marriage related events but only to the solemnization of a marriage!
In the light of all this, it is evidently clear that there is no balance between the opposing rights of the parties. When the notices, irrespective of how poorly they are drafted, are being issued to prevent undue harassment to the public, maybe the courts could provide necessary safeguards. However, I fail to understand why the courts have turned their eyes away from the issue at hand when the problem has become increasingly common and they already have access to a detailed and extensive expert submission on Section 52(1)(za)!