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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 Others.

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 to light.

Whether performance of music or playing sound recording at marriages amounts to copyright infringement?

Section 52(1)(za) of the Act expressly provides marriages as an exception to copyright infringement.

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 Others

The 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 Copyright Act.

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 concern.

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 case-to-case basis.

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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