New Delhi: Does playing copyrighted music or sound recordings at a wedding require a licence? The question has been the subject of much debate.
Broadcasting and media companies claim that a licence is required for playing their music at such social gatherings. In contrast, event management companies and hotel associations have publicly issued clarifications, stating that no such licences are needed for playing music at wedding celebrations, labelling previous announcements as misleading.
According to a public notice, issued by the Hotels and Restaurant Association of Western India (HRAWI) in November this year, reports started surfacing of private agencies asking hotels and guests for music licenses to play songs at weddings and related functions.
Adding that these agencies were citing a 13 August Bombay HC (Goa bench) order and a notice issued by the Centre (Department for Promotion of Industry and Internal Trade)
on 7 November, to suggest that the exemption for weddings was no longer valid, HRAWI said the agencies are “misinterpreting it as a legal requirement to obtain music licenses”.
It added, “HRAWI has verified that Section 52(1)(za) of the Copyright Act, 1957, which exempts marriage-related festivities from licensing requirements, remains intact and enforceable.”
The overarching context to this issue lies in three orders passed by different high courts, namely Punjab & Haryana HC (2022), Delhi HC (2023) and Bombay HC (2024).
In the first case, the Punjab & Haryana HC quashed a notice issued by the Registrar of Copyrights that sought to do away with the requirement of getting a license for playing certain copyrighted songs at wedding functions. In the Delhi HC ruling, the court refused to grant relief to an events company that sought exemption from such licensing requirements, adding that what bonafide use is, will have to be determined on a case-by-case basis. Finally, a two-judge bench of the Bombay HC quashed a circular issued by the government which exempted hotels from obtaining a license for playing copyrighted music at weddings.
The issue became even more complicated, when the Ministry of Commerce and Industry, by way of a notification on 7 November, said a notice issued by the Department for Promotion of Industry and Internal Trade (DPIIT) last July—exempting weddings and social events from complying with music-licencing requirements—would be kept in “abeyance”.
The new notice added that this was subject to the final decision of a case pending before the Punjab & Haryana HC, challenging the court’s 19 May, 2022 order in Novex Communication vs Union of India. While the earlier notice, issued by DPIIT in July 2023, had said that weddings and social events were exempt from complying with music-licencing requirements mandating payment for playing copyrighted music, under Section 52(1)(za) of the Copyright Act, 1957, the same was put on hold by the ministry’s latest notification.
Section 52(1)(za) exempts from copyright infringement “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”.
“Religious ceremony” includes a marriage procession and other social festivities associated with marriage, the explanation to the provision states.
ThePrint looks at the conundrum, the Centre’s stance on it, and how conflicting notifications and various court orders over the past few years have further compounded its complexity.
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Copyright, infringement & ‘communicating’ to the public
Novex, a copyright and anti-piracy company, which has been active for over 20 years, had claimed that it was the exclusive authorised agent for renowned music labels, like Zee, Yash Raj Films, Tips Music and others, and approached various high courts challenging the unauthorised use or copyright infringement of its licenced music at wedding functions and events, before the court, in the three cases, that were decided between 2022 to 2024.
It also claimed that it had entered into agreements conferring public performance rights in sound recordings, including the right to communicate such recordings to public at live concerts or events, or clubs, hotels, and restaurants, and that these social events had a commercial aspect to them.
It successfully approached the court in 2022 and 2024, to quash notices issued by the Centre, interpreting Section 52(1) (za) in such a way, that people were exempted from obtaining music licenses for playing copyrighted music at weddings and related functions.
A copyright is a bundle of rights given by the law to creators of literary, dramatic, musical and artistic works, and producers of cinematographic films and sound recordings. It includes right to reproduction, storage, communication to the public, adaptation and translation of a work. The 1957 Act seeks to protect such creative works, which it deems as the creator’s intellectual property (IP).
A copyright is said to be infringed, if a substantial part of the copyrighted work is used without permission. For instance, using a copyrighted song without a licence granted by its owner will mean that the work’s copyright has been infringed. In that case, the owner of the copyright can take legal action against anyone infringing on or violating their copyright. It will entitle them to remedies, such as injunctions and damages.
According to Section 14 of the Copyright Act, a copyright means the exclusive right over a work. For instance, for literary works, it includes the right to reproduce or store the work, to issue copies of it to the public that are not already in circulation, to perform or communicate the work to the public, to make its translation or adaptations, or to make any cinematographic film or recording with respect to it.
The right to communicate to the public means making any work or performance available to be seen, heard or otherwise enjoyed by the public, directly or by displaying or disseminating it, regardless of whether anyone actually saw, heard or enjoyed the work.
Communication through satellite or cable, or any other means of simultaneous communication, to more than one household or residence, including residential rooms of hotels or hostels, will amount to communication to the public, the Punjab & Haryana HC had said in its 2022 ruling in Novex’s case.
What Punjab & Haryana HC said
On 27 August, 2019, the Registrar of Copyrights had issued a notice, interpreting the provisions of Section 52(1)(za) to mean that using sound recordings in the course of religious ceremonies, including wedding processions and other wedding-related social festivities, did not amount to copyright infringement, and consequently, no license was required to be obtained for the same.
When Novex approached the Punjab & Haryana HC challenging the notice, a bench of Justice Raj Mohan Singh set aside the notice permitting usage of sound recordings without a licence. It said, “Interpretation, if any, to the codified law falls under judicial domain or by way of clarification and amendment under legislative domain.”
The question before the court then was if obtaining a licence for playing sound recordings at social functions during weddings was necessary.
Relying on its 2011 judgment in M/s Phonographic Performance Ltd vs State of Punjab, the court said that in that case, a single-judge bench had held that a sound reproduction by a DJ (disc jockey) at a religious ceremony is surely a function that is not wedding-related.
“It is not as if a DJ’s performance amounts to conducting the marriage. Marriage is definitely different from the functions connected to the marriage and the tariff regime applies to performance at such functions, even if it has a religious overtone,” the court had said in 2011.
It also relied on the Gujarat HC’s two-judge bench ruling in Devendrakumar Ramchandra Dwivedi vs State of Gujarat (2009), where the court said, “…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.”
Citing the fair use doctrine, the Gujarat HC had said then, “Fair use doctrine is mixed question of law and facts, and if the use is commercial rather than nonprofit, it is presumed to be unfair and to have a likely adverse impact on the market for the owners’ work, the burden is on the organisers to prove otherwise.”
Whether certain acts would be covered under the exemptions detailed in Section 52(1) depended on the facts of each case, the Punjab & Haryana HC said, adding that the theory of fair use “is to be judged on the material available in a given case”.
Setting aside the 2019 notice, the high court flagged how the same could be misused “by certain notorious elements” in order “to enrich themselves” by playing sound recordings for commercial gains in commercial spaces after obtaining requisite authorisation.
Saying that the Registrar had “no authority” under the Copyright Act to clarify or interpret the applicability of law in the manner suggested in the public notice, it said that the notice “cannot override the provisions of Copyright Act” or take away the petitioners’ statutory right under Section 55 to initiate civil proceedings in court for infringement of copyright.
The court further pointed out that such an interpretation could give rise to “a very enormous situation,” where the police authorities may refuse to take cognisance of the offence of copyright infringement, which may be an offence under Section 63 of the Act.
“The protections granted by the Copyright Act are sought to be abridged by the public notice, which is unsustainable,” it added.
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Matter before Delhi HC
The following year, the issue of music licencing propped up before the Delhi HC, giving way to its 15 May, 2023 order in the case involving events company Ten Events & Entertainment and Novex. In Ten Events & Entertainment vs Novex, a bench of Justice C. Hari Shankar was dealing with the question of interpreting Section 52(1)(za) of the Copyright Act.
The event management company had organised wedding ceremonies in luxury hotels, where songs were played by disc jockeys (DJs), to accompany the festivities, but an association of hotels had written to the events company, saying that it was required to get a licence or no objection certificate (NOC) from companies like Novex, which purportedly had a copyright in these songs. Challenging this and saying that under Section 52(1)(za), no such licence or NOC was required, the company had moved the Delhi HC.
The petitioners in the case had argued that despite being informed that such usage was “fair dealing” in terms of the 1957 Act, the defendants were “harassing” them to obtain and submit NOCs for playing music, while threatening them with legal proceedings.
In its 103-page order, the court then said that no petition can be filed simply to declare a legal position “which already stands declared”.
It ruled, “As to whether, in a particular case, the benefit of Section 52(1)(za), all the explanation thereto, would be available, has to be determined on the basis of the facts of that case.”
The court also went on to say that Section 52(1)(za) of the Copyright Act provides that communicating recordings to the public in bona fide religious ceremonies would not amount to copyright infringement. “The Explanation to Section 52(1)(za) deems marriage processions and social festivities associated with marriage to be religious ceremonies for the purposes of the clause. The statutory dispensation is, thus, clear,” the court clarified.
Given the nature of bona fide religious ceremonies and wedding processions, the court said that “it might be a moot point, not easily resolved, as to whether such commercial exploitation of copyrighted recordings in extravagant wedding celebrations would be entitled to the benefit of the Explanation to Section 52(1)(za), by treating them as―social festivities associated with marriage.” This observation left room for interpretation.
What celebrations and festivities would qualify as social festivities associated with the wedding “is clearly a pure question of fact,” to be decided on a case-to-case basis, it said.
Bombay HC’s interpretation
While the issue awaits conclusive determination before the Delhi HC, it also came up before the Bombay HC’s Goa bench on 13 August, this year.
A bench of Justices M.S. Karnik and Valmiki Menezes were dealing with a petition filed by copyright holders, like Phonographic Performance Limited and Novex, that sought to quash or set aside a 30 January circular issued by the Centre, exempting performances of musical works at weddings and religious ceremonies from copyright infringement.
Before the court, Phonographic Performance said that it owns and controls the public performance rights of 400+ music labels, with more than 40 lakh international and domestic sound recordings. The petitioners argued that any communication to the public or public performance of sound recordings forming part of their repertoire without an appropriate license would amount to copyright infringement under Section 51 of the Copyright Act, which entails when a copyright is infringed.
Quashing the 30 January circular, the court then said, “We therefore have no hesitation in holding that the impugned circular is in the teeth of the provisions of the Copyright Act and therefore, the petitions must succeed.”
In its 35-page ruling, the bench went on to reason that the circular had put “fetters” on copyright societies from exercising their rights under the Copyright Act.
The circular said that insistence by certain organisations and hotels for getting permission from the copyright society for the performance of musical works, violated Section 52(1)(za), and interfered with the mechanism provided under the act for enforcing rights of copyright societies, the court pointed out.
What lawyers say
Advocate and legal head of Novex Communications, Pratik Gandhi, told ThePrint, “Recently, some associations have been circulating incorrect, false and contemptuous information regarding the requirement of a licence for marriages and related social events in terms of Section 52(1)(za). Novex takes strict exception to such misleading and incorrect circulations, which are in the teeth of the orders and judgements passed by courts across the country, and has also sent a legal notice to the said associations.”
Gandhi also said these bodies “deliberately concealed the most important orders/judgements” in matters where their members have been parties to court proceedings. He cited the example of the Delhi HC ruling in Leela Group of Hotels vs Novex Communications (2022), where the hotel was directed to procure requisite NOC or licence.
Delhi-based copyright lawyer Ankur Sangal, who represented Phonographic Performance Ltd in the case in Bombay HC, said, “There is a big relief for the music industry in a few recent orders passed, where courts have touched upon the interpretation of copyright exception and stated that an act which is supposed to be non-infringing and falling within the exception of infringement has to be within the umbrella of the expression ‘bonafide religious ceremony’, used in Section 52(1)(za), and the same has to be determined on a case-by-case basis.”
He added, “The wedding business in India is thriving and it has given a boost to many businesses—be it hospitality or event management. In such a commercial setting, the music industry should also be given due consideration, and appropriate licences from copyright owners should be taken.”
On the other hand, advocate Rajeshwari Hariharan, who specialises in Intellectual Property Rights law-related matters, told the Print that attempts to demand royalties for music played at weddings are “excessive” and “unfounded in law”.
The Delhi-based IP lawyer added, “Weddings are personal, non-commercial events that are clearly protected under the exceptions provided in Section 52 of the Copyright Act. Such actions not only overstep the boundaries of copyright law but also create unnecessary burdens on individuals celebrating their private occasions. This overreach must be addressed to safeguard the spirit of the law and the rights of the public.”