Executive v/s Judiciary: The Copyright Clash
On the 27th of August 2019, the Ministry of Commerce and Industry issued a
public notice exempting the use of copyrighted sound recordings from liability.
In the same year, within the following months the Indian Judiciary quashed the
notice, questioning the power of the authority to interpret the law.
The thin line separating the powers of the legislative, executive and judiciary
has been the moot point in various cases. Despite there being no express
provision recognising the doctrine of separation of powers, the Constitution of
India embraces the idea in an implied manner. A functional system has thus been
created where no organ can usurp the powers assigned to any of the other organs.
The Apex court displeased by the public notice issues by the copyright office
expressed that executive has no authority under the Copyright Act to clarify or
interpret the applicability of the law through public notices through the
landmark case of Novex Communications Private Limited v. Union of India and
Marriages in a country with a variety of culture like India is evergreen. The
Law attempts to regulate it to ensure no party is aggrieved by the marriage or
the festivities associated with it.
Hence, with respect to the copyright law, one issue has been repeatedly brought
Whether performance of music or playing sound recording at marriages amounts to
Section 52(1)(za) of the Act expressly provides marriages as an exception to
The provision states:
(za) 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 or an official ceremony held by the Central
Government or the State Government or any local authority.
Explanation: For the purpose of this clause, religious ceremony including
a marriage procession and other social festivities associated with a marriage;
The same stance has been reiterated by the Gujarat High Court in the case of
Devendrakumar Ramchandra Dwivedi vs. State of Gujarat. The court here
observed that the main thrust of Section 52(1) of the Copyright Act, 1957 is to
exempt live performance of such works when there is no commercial purpose and
when there is no admission charge and/or when admission proceeds are used
exclusively for educational, religious or charitable purpose and not for private
personal financial gain. This principle is generally called fair or honest use
doctrine which constitutes the most significant limitation on the exclusive
rights held by a copyright owner.
Just as the position of law became clear, in 2011 the Punjab and Haryana High
Court held otherwise. In this case, Phonographic Performance vs. State Of
Punjab, the court narrowly interpreted the provision and held that conducting a
marriage a different from the functions associated with marriage. Thereby the
court decided that music recordings played in related functions amount to
infringement reinstating the questions over ambiguity of the law
As the stakeholders raised more and more inquiries on the same point of law, the
copyright office, government of India issued a public notification providing a
general interpretation of the law stating that:
The utilization of any sound recording in the course of religious ceremony
including a marriage procession and other social festivities associated with a
marriage does not amount to infringement of copyrights and concluded that no
license is required for the said purpose. Though the notification clarified the
queries of the general public, the validity of such notice was put to question.
The Landmark Case:
Novex Communications Private Limited v. Union of India and OthersThe present case was filed by Novex Communications Pvt Ltd., a broadcasting
company owning the copyright of a large number of sound recordings including
popular enterprises like Zee Entertainment Enterprises Limited, Eros
International Media Limited and more.
Aggrieved by the interpretation of Section 52(1)(za) of the Act given by the
copyright Office by way of a public notice, a writ petition was filed
questioning the jurisdiction of the authority to issue such notice embarking on
the legislative domain.
The court reasoned and held that the executive has no authority under the
Copyright Act to clarify or interpret the applicability of the law through
public notices. The interpretation if any to codified law falls under the
judicial domain or by way of clarification and amendment under the legislative
domain. Hence issuance of such notice by the copyright office is violative of
the doctrine of separation of powers.
It was further observed that the interpretation of what acts would fall under
the exempted acts as enumerated in section 52(1) of the act ought to be decided
based on the facts and circumstances of the case. A general interpretation of
the law by such notice, takes away the statutory right of any aggrieved person
to initiate civil proceedings in court of law for the infringement of the
Doctrine Of Fair Use
Section 51 of the Act requires that a person who even permits for profit the use
of any place for communication of a copyrighted work to the public such that the
communication amounts to copyright infringement, is liable for the same. Thus,
as weddings are typically held in hotels, banquets, commercial halls, the above
section prima appears to cover such venues, thus resulting in a matter of
In order to end the ambiguity, the intent behind the provision must be taken
into account. The provision is based on the idea that when the use of creative
work is for non-commercial purposes, the same can be exempted from liability
under the Act. Although no set of definition exists for what fair use
constitutes of, the Indian legal system provides for a decision on a
Depending upon the circumstances, facts of the case and the impact likely to be
created, the need for a license will be decided by the judiciary. The law hence
provides liberally for any person to initiate a civil proceeding when his or her
rights are infringed.
It has thus been held by the Apex court in the Novex Communucations Pvt. Ltd.
Case that, by providing a general interpretation of the law, the rights of the
aggrieved person to initiate proceedings for remedies are being taken away,
hence violating the rights guaranteed by the Constitution of India.
The element of commercial gain has been ruled out in the interpretation given in
the notice. Thus, the general interpretation denying the need for license in all
cases and circumstances violates Article 13, 14 and 19(1)(g) of the Constitution
affecting the aggrieved or likely to be aggrieved person's fundamental right to
freedom of occupation.
It can hence be concluded that the public notice has rightly been quashed by the
judiciary as overstepping the powers provided to an organ is impermissible.
Addressing the issue of whether or not a license is required while playing sound
recordings or performances at weddings, it is only up to the judiciary to
interpret the law on a case-to-case basis. There exists no ambiguity in the law,
but the powers to fill the vacuum have been left to the judiciary to address the
aggrieved in the best manner possible.
The same issue being repeatedly brought under the eyes of the judiciary must be
looked into in a broader perspective. While a case-to-case decision might be
looked upon by the public, the increasing burden of the judiciary to entertain
every such case is an aspect yet to be taken into consideration. Viewing general
interpretation as a restriction that takes away the right to initiate
proceedings is a facet that remains debatable.
The question thus persists, whether a clear-cut law is required to be
established with definite conditions or has the judiciary rightly been conferred
with the powers to decide the facts.
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