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TMI Blog2024 (8) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is a company registered under the Companies Act, 1956. The petitioner is one of the foremost organisations in the world which provides a 'single window' for consumers to get access to the petitioner's voluminous repertoire and was originally known as the Indian Phonographic Industry (IPI). The petitioner owns and/or controls the public performance rights of 400+ music labels, with more than 40 lakh international and domestic sound recordings. The petitioner is the copyright owner of the public performance rights in the sound recordings in its repertoire on the basis of assignment of the relevant copyrights in its favour by music labels who have assigned/licensed the said right. These assignors of the petitioner have executed an assignment deed under Section 18 of the Copyright Act, 1957 (Copyright Act for short) in respect of its sound recordings with the petitioner wherein they have assigned the public performance rights of the sound recordings to the petitioner and in view of the same, the petitioner is the owner/controller of the sound recordings to the extent of public performance of the same and therefore is exclusively entitled to grant licenses for communication to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l notice. 8. Learned Senior Advocates Mr Nitin Sardessai and Mr S. S. Kantak argued in favour of the Petitioners. Mr Y. V. Nadkarni argued on behalf of respondent No. 5 in Writ Petition No. 253 of 2024 in support of the petitioners' case. The submissions on behalf of the petitioner and respondent No. 5 are as under: (i) Respondent No. 1 being the Home Ministry of Goa, does not have jurisdiction to interpret law, as the impugned Circular demonstrates, respondent No. 1, as an executive arm of the Government cannot assume legislative functions and interpret the law. Respondent No. 1 by way of the Circular has expanded the scope of Section 52(1)(za) of the Copyright Act and hence overridden the statutory provision which is not permissible in law. The impugned Circular does not disclose under what statutory authority it has been issued. The decision of the Punjab & Haryana in Novex Communications Private Limited Vs Union of India, reported in 2022 SCC OnLine P&H 1105, holds that the Registrar of Copyrights had no authority under the law to clarify or interpret the applicability of the law and had also held that a public notice cannot impact the statutory right of a copyright owner un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the general public not to accede to uncalled demands which are in violation of the provision. The said Public Notice dated 24.07.2023 has not been challenged by the Petitioner. In the absence of such challenge, the petitioner cannot have a standalone challenge to the said Circular which has referred to the Public Notice and has stated that all concerned are to act in terms of the same; (ii) Any Circular or executive instructions can be challenged only when any statutory right is taken away. When the Circular or instructions do not take away any right but only provide for safeguards to prevent abuse or arbitrary exercise of powers, the same will not be interfered with. Following decisions of the Supreme Court in Joint Action Committee of Air Line Pilots' Association of India Vs DG of Civil Aviation reported in (2011) 5 SCC 435. Reliance is also placed on the decision of Suhas H. Popale Vs Oriental Insurance Co. Ltd., reported in (2014) 4 SCC 657 and in Veerendra Kumar Dubey Vs Chief of Army Staff reported in (2016) 2 SCC 627 support the State's case; (iii) The Circular has been issued by the State Government in exercise of its executive powers under Article 162 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en away is wholly misconceived. As regards the contention that the Circular requires strict action to be taken against illegal demands and other illegal acts, the action by the police referred to therein is obviously action in accordance with law. If any complaint is received about commission of any cognizable offence, it is the duty of the police to take action; (vi) The exception under Section 52(1)(za) is not restricted to non-commercial use. The same relates to bona fide religious ceremony which includes a marriage procession and other social festivities associated with a marriage. The Parliament has not qualified the provision by providing for the words 'non-commercial use'. Accepting the submission of the petitioner would result in reading words into the statute, which exercise is impermissible; (vii) The intention of the Parliament is that when it comes to a marriage procession and other social festivities associated with a marriage, the same will not constitute infringement of copyright. The Statement of Objects and Reasons of the Amendment Bill 1992, where the provision was first introduced, states that the events specified in clause (za) are inappropriate to be subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution. On the other hand, if the petitioner is permitted to use the police machinery for events which the statute itself excludes from the purview of infringement of copyright, the same will be against the statutory mandate and will be against the public interest. 10. Heard learned counsel for the parties. The rival contentions fall for our determination. At the outset, the Public Notice dated 24.07.2023 issued by the Central Government which forms the basis for issuance of the impugned Circular by respondent No. 1 needs to be extracted which reads thus: - "No. P-24029/56/2023-IPR-VII Government of India Ministry of Commerce & Industry Department of Promotion of Industry and Internal Trade (Copyright & Design Section) 24th July, 2023 PUBLIC NOTICE Department of Promotion of Industry and Internal Trade (DPIIT) has received several complaints, representations, grievances from the general public as well as other stakeholders about alleged collection of royalties by the Copyright Societies for performance of musical work, communication to the public of sound recording etc. in marriage functions in contravention to letter and spirit of Section 52 (1) (za) of Copyri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall insist upon any permission/NOCs for performance of musical works or other musical recordings for religious ceremonies/festivals including wedding/marriage events and other social festivities associated with marriage. All concerned have to act in terms of the Public Notice of Government of India dated 24/07/2023 issued by the Ministry of Commerce and Industry. The police staff has to be therefore sensitized about the above said provision of law so that no undue harassment is caused to the general public. Also the field units have to be instructed to take strict action against any hotel or copyright society raising such illegal demands of royalties/any fees for performance of musical works or other musical recordings at religious ceremonies/festivals, including weddings/marriage events and other social festivities associated with marriage. This is issued with the approval of the Competent Authority. Sd/- 30/01/2024 (Vivek K. Naik) Under Secretary (Home-1) To, 1) The Office of DGP, Panaji Goa. Copy to: For information 1) The Director, Department of Tourism, Patto, Panaji Goa. 2) The Director, Department of Art & Culture, Panaji Goa." 12. Some of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the right by licence in [writing by him] or by his duly authorised agent. Section 31-D is the provision for statutory licence for broadcasting of literary and musical works and sound recording. Chapter VII of the Copyright Act contains provisions relating to copyright societies and registration of copyright society is prescribed under Section 33. 16. Chapter XI of the Copyright Act are provisions relating to infringement of the Copyright. Section 51 provides when copyright is infringed. Section 51 reads thus: - 51. When copyright infringed.- Copyright in a work shall be deemed to be infringed- (a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or [(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of any legal rights of the person making such threats and may in any such suit- (a) obtain an injunction against the continuance of such threats; and (b) recover such damages, if any, as he has sustained by reason of such threats. The Proviso to this Section says that Section 60 will not apply if the person making such threats, with due diligence, commences and prosecutes an action for infringement of the copyright claimed by him. 20. Chapter XIII contains provisions relating to offences under the Copyright Act. Section 63 deals with the offence of infringement of copyright or other rights conferred by this Act. Section 64 contains the provisions dealing with the power of police to seize infringing copies. Relevant to the controversy is Section 68 which stipulates that any person who,- (a) with a view to deceiving any authority or officer in the execution of the provisions of this Act, or (b) with a view to procuring or influencing the doing or omission of anything in relation to this Act or any matter thereunder, makes a false statement or representation knowing the same to be false, shall be punishable with imprisonment which may extend to one year, or with fine, or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the Court may in the circumstances deem reasonable. 23. Section 56 provides for the protection of separate rights whereas Section 57 are Author's special rights independently of the author's copyright and even after the assignment either wholly or partially of the said copyright. Under Section 57, the author of the work shall have the right (a) to claim authorship of the work; and (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. These special rights are of course subject to the proviso to Section 57. Section 58 provides for the rights of the owner against persons possessing or dealing with infringing copies. 24. The word "work" is defined in Section 2(y) of the Copyright Act which reads thus: "2(y) "work" means any of the following works, namely: - (i) a literary, dramatic, musical or artistic work; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to three years and shall also be liable to fine. The definition of "sound recording" in Section 2(xx) is significant. It means recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. Section 3 stipulates that for the purpose of this Act, "publication" means making a work available to the public by issue of copies or by communicating the work to the public. 28. Thus a careful perusal of the relevant provisions of the Copyright Act indicates that for infringement of the copyright or for violation of the rights under the Copyright Act, there are remedies provided apart from the safeguards prescribed for the protection of the rights of the copyright owners. The Act provides for civil remedies and makes the violations offence punishable under the Act. The consequences of breach are provided. The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. The whole essence of a copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a marriage cannot be construed to be an act infringing the copyright. 31. As indicated earlier, the provisions of the Copyright Act contain a complete mechanism providing for civil remedies as well as prescribing criminal remedies and the nature of reliefs which could be granted for infringement of the copyright or violation of any rights under the Act. The disputes are thus to be resolved by a mechanism provided under the Act. The remedy in the case of groundless threat of legal proceedings of the person claiming that the Act is not an infringement of the copyright is provided under the Copyright Act as can be seen from Sections 60 and 68 of the Copyright Act. Thus, there are adequate provisions in the Copyright Act which present a balance between the interest of the rights of the author and that of the public in protecting the public domain. 32. The impugned Circular after referring to the Public Notice of Government of India dated 24.07.2023 says that insisting upon such permission/NOCs from the copyright societies is in violation of Section 52(1)(za) of the Copyright Act adversely affecting not only the citizens but also the economic/tourism activities in the State. It go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Section uses the term 'marriage' whereas the Circular uses the word 'wedding' in addition to the 'marriage' and that too in the context of an event. Again the question is whether the term 'marriage' in Section 52(1)(za) has the same meaning as the term 'wedding'. The impugned circular uses the term 'wedding'. The purport of Section 52(1)(za) appears to be that the act in respect of which it is claimed that there is no infringement of copyright Act must be strictly within the umbrella of the expression 'bonafide religious ceremony'. We hasten to add that we do not express any opinion on the interpretation of Section 52(1)(za), for our endeavour is only to test the case of the State whether the circular is expanding the scope of Section 52(1)(za) on the pretext of informing the public at large about its possible misuse. There is a difference between informing the public at large the provisions of Section 52(1)(za) as it stands to safeguard their interests; with that of informing the public by distorting the provisions of Section 52(1)(za). 34. The learned Additional Government Advocate was at pains to point out that what the Circular does is only inform the general public abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial consequences and implications impinging upon the rights of the author/copyright owner. 37. As to what is bonafide religious ceremony is a question of fact. Then again what constitutes "other social festivities associated with marriage" will depend upon the facts of each case. Instructing field units to take strict action against any hotel or copyright society raising such illegal demands of royalties or any fees for the performance of musical works, in our opinion, tends to interfere with the enforcement mechanism provided in the Act. Clarifying that no hotel or copyright society shall insist upon any permission/NOCs for performance of musical works or other musical recordings for the events mentioned in the Circular is in the teeth of the provisions of the Copyright Act. 38. What is provided by Section 52(1)(za) are certain acts which are not to be infringement of copyright. The provisions of Section 52 are in the nature of an exception to the claim of the author/copyright owner contending infringement of the copyright. The claim whether the act is not an infringement of copyright within the meaning of Section 52(1)(za) is a question of fact which will depend upon the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Union Department,' is untenable. It would be pertinent to reproduce Paras 13 and 14 of the affidavit in reply filed on behalf of the Respondents which read thus:- "13. I say that the said Circular dated 30.01.2024 does not in any manner curtail the civil or criminal remedies of the copyright societies or owner of the copyright to institute proceedings under Section 55 or Chapter XIII of the said Act, against such persons or entities that commercially gain from using the copyrighted works of such societies. I say that a comparative illustration of the same would be that of a DJ playing copyrighted sound recordings at a ceremony as his primary source of service for commercial gain, this would amount to copyright infringement. On the other hand, copyrighted sound material being played on a speaker provided at the venue where such marriage ceremonies and related events take 13th place would be an integral part of the ceremony since in the Indian context music is an integral part of any wedding or marriage ceremony. 14. I say that the Circular dated 30.01.2024 in no manner abridges the powers of the copyright societies or copyright owners to prosecute copyright infringers. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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