[This post has been authored by our SpicyIP intern Gaurangi Kapoor. Her previous posts can be accessed here, here and here.]
In a recent post on a clarification issued by the Police Commissionerate of Jaipur exempting the need for music licences in the use of sound recordings during wedding ceremonies, I had raised the question of whether the executive has the power to issue such a notice. In a recent development, as it turns out, this question was also brought before the Rajasthan High Court in the connected case of Phonographic Performance Ltd vs State of Rajasthan and Novex Communications Pvt. Ltd. v. State of Rajasthan, where the Single Bench Judge has put a stay on the Circular.
Background
Phonographic Performance Ltd and Novex Communications Pvt. Ltd. challenged the Circular passed by the Police Commissionerate, Jaipur for abuse of power and lack of jurisdiction relying on the decision of the Punjab and Haryana High Court in the case of Novex Communications vs Union of India (Novex Case). It has been argued that allowing use of sound recordings without licence at wedding ceremonies infringes copyright and deprives the copyright holders from undertaking legal remedies against DJs/event managers/hoteliers for playing music for commercial purposes.
In response, the State has argued that the Circular was issued to “maintain law and order and it does not permit hoteliers/event managers/DJs to play music/sound recordings for commercial purposes without obtaining licence from the registered copyright holders”.
Interim Order
The High Court of Rajasthan (Bench of Jaipur) passed a stay on the Circular in the light of the Novex case to the extent that it would not be treated as a permission to play sound recordings by hoteliers/event managers/DJs for commercial purposes.
Analysis
Our readers would recall that the purpose of the Circular was to prevent unwarranted harassment and threats of lawsuits during wedding ceremonies given the wide powers of the police. In the post it was also discussed that a clarification coming from the police was welcome and a much-needed relief for families and wedding folks to not be interrupted in the middle of their wedding over an unclear copyright provision and over-eager enforcers.
The petitioners argued that by virtue of the spacious language of the Circular, the exemption could be misused by DJs/event managers/hoteliers to play sound recordings for commercial purposes as well, when the Circular explicitly mentions that the use of sound recordings without licence is allowed for weddings and related events only (currently the Circular has been taken down from the website as the matter is sub judice). They further relied upon the decision of Punjab and Haryana High Court in the Novex case to pull down the Circular, a strategic attempt to tilt the balance of interests in favour of the copyright holders. The Counsel for the State of Rajasthan (State), in its defence, has argued that the purpose of the Circular was merely to maintain law and order and not to allow hoteliers/event managers/DJs to play music or sound recordings for commercial purposes.
While the narrow interpretation of the Provision has been affirmed by the Courts giving way to threats of lawsuits and unwarranted harassment of family members and event organisers for playing sound recordings during weddings and related ceremonies (see here, here, and here), this time the stay on the Circular is only to the extent that it does not act as a permission for use of sound recordings by DJs/event managers/hoteliers for commercial purposes. While the distinction acknowledged by the Court is refreshing, perhaps an explicit permission could have been granted, stating that the use of the Circular as a permission to play sound recordings in weddings and related events is valid, given the trend of copyright holders to drag States in the Court on issuance of such clarifications that impinges on their monopoly over music rights and commercial benefits (see here and here)!
The interpretation of the Provision has made headlines quite a few times (last year when the hope for a broader interpretation was kindled as an expert was appointed by the DHC to aid in the interpretation of the Provision, see here and here) and it will continue to do so while it remains an unsettled law. In my previous post, I mentioned that the language of the explanation to the Provision clearly states that sound recordings can be used in weddings and related events. Prof Arul George Scaria, notably points out the intent of the “legislatures to use a broad exception to avoid fear of infringement of copyright during a wedding ceremony or any associated event”. As reiterated throughout this post and the previous one (linked above), the powers vested with the police are wide and marriage and associated events are crucial in any person’s life. Every person has a fundamental right to perform marriage ceremonies according to their tradition and culture under Article 21 and no one would like to be interrupted with unwarranted police interventions and lawsuit threats at their wedding ceremonies over an unsettled copyright provision!
Reading the Provision as is, interpreting the explanation to include wedding related events so that the exemption is applicable to it (which an ordinary reading of the explanation to the Provision already states!) would allow people to exercise their fundamental right to perform wedding ceremonies according to their tradition and culture and follow the original intent of the framers of the Provision/Act. It will also allow the judiciary to assess rights of the parties without having to assume the rights of the copyright holders (since instances have been reported in the newspapers wherein claims of copyright have been unfounded), maintaining a balance over competing interests. What may be troublesome to the surface is that most of these weddings and related events are organised with the help of certain facilitators like DJs, event organisers, wedding planners and like who demand professional fees for their services which would also include fees to play music at the events- making a private event more of a commercial event! Commercial events are those wherein profits are derived by the organising party. Here, it would be difficult to claim that the people getting married are making a profit due to the music being played. As, it has been correctly reported by Prof Arul George Scaria that facilitators maybe required to exercise one’s own rights and privileges and most notably when it comes to a big fat Indian wedding that generally runs for more than a couple of days (see here)! Citing Indian and international judicial precedents, he stresses on the need to recognise the right and privilege of a person under the Provision to use sound recordings during wedding related events and not be “subjected to police interventions and harassment by copyright holders”.
As the matter is listed for further proceedings and corresponding matters are pending before the Courts ( see here and here), one hopes for a broader interpretation of the Provision in the light of the stay passed which only extends to prevent use of the Circular for commercial purposes.