Playing Music At Weddings Without License: Fair Use Or Copyright Infringement?
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
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
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-ŕ-vis
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
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
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.
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