Recently, a very interesting issue has come up in the Delhi High Court in the case of Phonographic Performance Limited (PPL) vs Lookpart Exhibitions and Events (LEE) in which the question of whether playing unlicensed music at weddings amounts to copyright infringement has come up. The author here tries to examine the jurisprudence around this issue and pinpoint the correct rule that should be followed, with the help of The Copyright Act, 1957 and some important case laws.

Though the main aim of all forms of intellectual property rights is to protect the private interests of creators, such interests must be balanced with the interests of the society or public at large, as long as they are reasonable. The main question raised in PPL vs LEE arises in such an attempt to balance personal interests with public ones.

It is a part of a much larger question- till what extent can the enjoyment of rights of the owner, obtained by his creation, be limited for the society's benefit? But for the sake of current relevance and depth of understanding, this article limits itself to the very specific sub-question raised in PPL vs LEE.

What the Statute and Precedents Say
Ordinarily, any unlicensed use of a copyright owner's work will be deemed as copyright infringement, but under Section 52 of the Copyright Act, an enormous section which lists down exceptions to infringement rule (fair use), sub-section (1)(za) says that "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…" will not be one.

The explanation to this sub-section explicitly lays down marriage to be a religious ceremony, and thus at first glance, playing of unlicensed music there shouldn't be an issue at all; but it is unfortunately not so simple. Each case of 'fair use' must be judged on a case-to-case basis as the law is very fact-dependent.

Things get further complicated when you consider that events in a religious ceremony like playing of music by DJs or simply by using an electronic device is not actually a part of the ceremony, it is not really necessary, raising the question of applicability of Section 52(1)(za) in such scenarios.

While the statute (Copyright Act) turns out to be inadequate while trying to answer these questions completely, relevant precedents, although very limited, help us to a great extent. In the case of Devendrakumar Ramchandra Dwivedi vs State of Gujarat & Ors. before the Gujarat High Court, a PIL was filed by the petitioner, who was in the business of serving beverages to the people assembling for Garba and Dandiya Mahotsav in various venues, challenging notices issued by the one of the respondents, which is a copyright society and an issuer of license for public communication of sound recordings, to various hotels, clubs and restaurants to necessarily obtain licenses at a fee for playing music.

The petitioner stated that there should be no requirement to obtain any license as Dandiya/Garba is a tradition of Gujarat state and have been celebrated even before the Copyright Act existed. Petitioner also claimed that these kinds of folk dances and celebrations formed a part of the religious heritage of the state and thus the action by the respondent was contrary to law as his demands were barred by Section 52(1)(za).

The court in this case held that Section 52(1) generally refer to non-profit performances of music and other non-dramatic works. The basic idea is to exempt live performances of such works when there is no entry fee, no commercial intent, and they are utilised only for religious, educational, or philanthropic purposes and not for personal financial benefit.

Section 52(1) thus contains a major portion of the circumstances falling within the scope of the doctrine of fair use, and thus whether any act is exempted from copyright infringement needs to be adjudged on a case-to-case basis, laying special emphasis on the facts of each case. This petition was ultimately dismissed as the petitioner could not produce any material that showed that his rights were actually affected by any anticipated action by the respondent.

In another very recent case of Novex Communications Pvt. Ltd. vs Union of India & Ors before the Punjab and Haryana High Court, the government (respondent) issued public notices, interpreting Section 52(1)(za) and notifying that no license would be required for utilizing sound recordings in religious ceremonies like marriages and also any other social festivities associated with marriage. It is the "any other social festivities associated with marriage" part that created all the problems in this case.

The petitioner challenged these notices through a writ petition claiming that the government had no authority to interpret the law as it is exclusively a legislative function, to be performed normally by the parliament and, in rare cases, the courts. A secondary question that arose was of whether the playing of music by DJs in a marriage without license was a case of copyright infringement. What exactly was the position of such performances in a marriage vis-à-vis Section 52(1)?

To answer this, the court cited and followed the ratio in the famous case of Phonographic Performance Limited v. State of Punjab (2011) where it was held that "Marriage is definitely different from the functions connected to the marriage and the tariff regime applies to performances at such functions even if it has a religious overtone."

The court also held that the notices issued by the government had a too wide an interpretation of Section 52 and could easily be misused for commercial gain under Section 54 and would lead to violation of copyright owners' rights under Section 55 to initiate civil proceedings. The notices were, ultimately, in contravention to the judgement issued by the same court in the Phonographic Performance case apart from being a violation of the doctrine of 'separation of powers.'

Conclusion
The Indian courts have remained somewhat vague about the interpretation of Section 52 of the Copyright Act. There is no established interpretation of Section 52(1). Even though the Phonographic Performance case established that DJ performances, and perhaps any similar events in a marriage are not covered under Section 52(1)(za) due to them not being necessary in religious ceremonies and therefore being separate acts altogether despite the nexus with the ceremonies, this is a very small piece of the puzzle. Guidelines need to be made, preferably by the legislature instead of the courts, to establish what all allied acts to a religious ceremony or event will be included as an exception to copyright infringement.

The courts are stuck with an inefficient test of commerciality of the performance to ascertain whether it would fall under Section 52(1); this is ineffective as, for example, almost all marriages contain performances of unlicensed music in a form that, according to Phonographic Performance, is commercial in nature. What we need is a test that separates the events associated to a religious ceremony that have become ubiquitous from those that are rare and are performed only by a select few.

Performance of unlicensed music at those most common events can be classified as fair use, under Section 52(1)(za). For the time being, the Delhi High Court has done a prudent thing in PPE vs LEE by appointing Dr. George Scaria as an expert to help it adjudicate, in an attempt to clarify the issue.