Bombay High Court
Sonotek Cassettes Company, Thr. Its ... vs State Of Goa, Department Of Home Thr. ... on 13 August, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1358-DB
2024:BHC-GOA:1358-DB
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Amrut
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 253 OF 2024
Phonographic Performance Limited
Crescent Towers, 7th Floor
B/68 Veera Estate,
Off New Link Road, Andheri (West)
Mumbai - 400063
Email: [email protected]
Through its authorised Representative
Mr Ranjan Ojha,
Son of late Shri Krishna Ojha,
Aged 59 years ... Petitioner
Versus
1 State of Goa
Department of Home
through Under-Secretary (Home - I )
Mr Vivek K. Naik
Secretariat, Porvorim Goa.
2 The Office of the DGP
Goa Police Headquarters,
Near Azad Maidan,
Panaji Goa, India - 403 001
3 Department of Tourism
Through its Director,
Paryatan Bhavan Patto
Panaji Goa 403 001
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4 Department of Art and Culture
Through its Director
Sanskruti Bhavan,
Central Library,
Patto, Patto Centre,
Panaji Goa 403 001
5 Novex Communications
Private Limited
B 301, Remi Biz Court,
Plot No.9, Shah Industrial Estate,
Veera Desai Road Andheri (West)
Mumbai 400058. ... Respondents
Mr Nitin Sardessai, Senior Advocate with Mr Pulkit Bandodkar,
Mr Ankur Sangal, Ms Sucheta Roy, Mr Tarun Rebello, Mr S. Sardessai,
and Mr Ankit Arvind, Advocates for the Petitioner.
Mr Deep Shirodkar, Additional Government Advocate for respondent
Nos.1 to 4.
Mr Y. V. Nadkarni, Mr Shailesh Redkar and Ms S. Khadilkar,
Advocates for respondent No.5.
WITH
WRIT PETITION NO. 254 OF 2024
Sonotek Cassettes Company
633, 3rd Floor, 19A
Ansari Road, Daryaganj
New Delhi - 110002
Email:[email protected]
Through its authorized
Representative/POA holder
Mr Dinesh Velip,
Son of Sagun Velip
Aged 44 years ...Petitioner
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Versus
1 State of Goa
Department of Home
Through under-Secretary (Home-I),
Mr Vivek K. Naik
Secretariat, Porvorim Goa.
2 The Office of the DGP
Goa Police Headquarters,
Near Azad Maidan,
Panaji Goa, India - 403001.
3 Department of Tourism
Through its Director,
Paryatan Bhavan Patto
Panaji Goa 403001
4 Department of Art and Culture,
Through its Director
Sanskruti Bhavan,
Central Library,
Patto, Patto Centre,
Panaji Goa 403 001 ... Respondents
Mr S. S. Kantak, Senior Advocate with Mr Pulkit Bandodkar, Mr Ankur
Sangal, Ms Saicha Dessai, Mr Simoes Kher, Advocates for the
petitioner.
Mr Deep Shirodkar, Additional Government Advocate for respondent
Nos.1 to 4.
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
Reserved on: 8th AUGUST 2024
Pronounced on: 13th AUGUST 2024
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JUDGMENT (Per M. S. Karnik, J.)
1. The issues raised in the petitions are decided by a common
judgment. We refer to the facts in Writ Petition No.253 of 2024.
2. The petitioner Phonographic Performance Limited in this
petition under Article 226 of the Constitution of India seeks quashing
and setting aside the impugned Circular dated 30.01.2024 issued by
respondent No.1.
3. The petitioner 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 public/public
performance of its repertoire of sound recordings. The list of sound
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recordings in which the petitioner has copyright is available on
petitioner's website (petitioner's copyrighted works), which provides
express notice of petitioner's rights in the sound recordings to any user.
4. Between 07.05.1996 and 21.06.2014 the petitioner's company
was a registered copyright society under Section 33 of the Copyright
Act and thereafter in 2014, due to the amendment brought in the
Copyright Act, the petitioner surrendered its registration as there was a
statutory requirement for all the registered Copyright Societies to re-
register themselves. Since 2014, the petitioner has been assigned the
right of public performance of sound recordings by various music labels
and issuing license in respect of the same as an owner.
5. The petitioner issues licenses under Section 30 of the Copyright
Act for communication/public performance of its vast repertoire of
sound recordings. The petitioner grants licenses authorizing the use of
its entire repertoire, on an as-is-where basis to its licensees. The
petitioner's right to grant licenses for sound recordings in its repertoire
has been recognized by various courts in India including Delhi High
Court and Bombay High Court.
6. The petitioner serves a useful public utility of acting as a 'single
window' to various parties seeking to take a license for authorized use
of sound recordings and brings together the copyright owners and
users across various parts of India, for better convenience in licensing.
Any communication to the public/public performance of sound
recordings forming a part of the petitioner's repertoire without an
appropriate licence would amount to an infringement of copyright
under Section 51 of the Copyright Act. The petitioner also actively
prosecutes the violators of its copyright in civil as well as criminal
Courts as per the remedies available under the Copyright Act.
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7. The cause for filing these petitions is a Circular dated 30.01.2024
issued by respondent No.1-State of Goa, addressed to the office of the
DGP, Panaji Goa. By a legal notice dated 27.02.2024, the petitioner
called upon the respondent No.1 to withdraw the impugned Circular
within two days and if not withdrawn, informed that the petitioner
would be compelled to take appropriate legal action. There was no
response received to the legal 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
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notice cannot impact the statutory right of a copyright
owner under Section 55 of the Copyright Act;
(ii) The impugned Circular impinges on the
petitioner's right to initiate civil/criminal proceedings
for infringement of its copyright. By sending the
impugned Circular to the police and encouraging them
to take action against the legitimate collection of
royalties by the Petitioner, the Respondents are
hampering the statutory right of the petitioner to take
criminal action against infringers. Section 52(1)(za) of
the Copyright Act has to be read in terms of the other
exceptions to be limited to only bona fide religious
ceremonies with non-commercial use of copyrighted
works. The words "Social festivities associated with
marriage" have to be read with the words "bona fide
religious ceremony". Explanation to Section 52(1)(za)
cannot expand the meaning of the main provision. The
High Court of Punjab & Haryana in Phonographic
Performance Limited Vs State of Punjab
through Secretary, Department of Home
Affairs and Justice has held that a sound
reproduction by a DJ performing at an event does not
amount to conducting a marriage. The question
whether certain acts would fall under Section 52(1)(za)
would have to be seen on a case-by-case basis. A
general interpretation cannot be given to the same.
9. Mr Shirodkar, learned Additional Government Advocate on the
other hand, in support of the impugned Circular submitted as under: -
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(i) The said Circular has been issued by the State Government
in exercise of its executive powers under Article 162 of the
Constitution of India. The Circular has been issued for the
purpose of guidance of the officers of the State to prevent
any abuse of the police machinery for acts which the said
Act itself has intentionally kept out of the scope of
infringement of copyright and also to provide information
and create awareness among the public about the statutory
provision. The Circular has been issued in public interest
taking note of the Public Notice dated 24.07.2023 issued
by the Central Government and the complaints received
from stakeholders. The Public Notice dated 24.07.2023
issued by the Central Government is similar in nature. It
refers to complaints received, refers to the exception under
Section 52(1)(za) for marriage procession and other social
festivities associated with marriage, directs copyright
societies to strictly refrain from acting in contravention of
the provision and cautions 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.
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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
Constitution of India. The executive instructions provide
guidance for the officers in order to ensure that there is no
abuse of powers by the officers in relation to acts/events
which the statute has specifically kept out from the
purview of infringement of copyright. Unlike the Notice
dated 27.08.2019 which was issued by the Registrar of
Copyright, who is a creature of the statute and cannot act
beyond the role attributed to him under the statute, the
said Circular is issued by the State Government in the
exercise of powers under Article 162. The executive has not
interpreted the provisions of law inasmuch as the Circular
refers to the statutory provision itself and the Public Notice
issued by the Central Government;
(iv) Section 52(1)(za) inter alia provides that playing of a
sound recording in the course of any bona fide religious
ceremony which includes a marriage procession and other
social festivities associated with a marriage shall not
constitute an infringement of copyright. The Circular states
the legal provision and refers to the Circular of the Central
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Government and requires that the police staff be sensitized
about the provision to prevent undue harassment to the
public. The Circular also provides that action has to be
taken in cases of illegal demands of royalties/fees in
relation to the exception provided in Section 52(1)(za). It is
well settled that when the statutory language is plain and
admits of only one meaning, no question of interpretation
arises as the Act speaks for itself. Reliance is placed on the
decision in Bhuwalka Steel Industries Ltd., Vs
Bombay Iron & Steel Labour Board reported in
(2010) 2 SCC 273;
(v) The Circular does not take away either civil or criminal
remedies. Firstly, the provisions of Sections 55, 63 and 64
come into play only in case of infringement of copyright.
Section 52(1)(za) states that the events in question do not
constitute infringement of copyright. In any event, the
Circular does not affect the petitioner's right to avail the
civil and criminal remedies in accordance with law. In the
event the police does not register an FIR for the reason that
any event does not constitute an infringement of copyright,
the petitioner can take recourse to the legal provisions and
approach the Court and satisfy the Court as to whether a
cognizable offence is made out. The submission that civil
or criminal remedies are taken 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;
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(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 subject to copyright. The intention
of the Parliament is therefore clear. Reliance is placed on
the decision of the Supreme Court in Hiralal Ratanlal
Vs State of UP reported in (1973) 1 SCC 216.
Reliance is also placed on the report of the expert
appointed by the Delhi High Court under Rule 31 of the
Delhi High Court Intellectual Rights Division Rules, 2021,
more particularly 7 to 11, which reflect the summary of
submissions, paras 41 to 43 which discuss the facts leading
to the passing of the Amendment Act, 1994. Paras 52 to 58
thereof which relate to unwarranted police interventions
and Para 89 analyses the data which shows that in relation
to such events, the impact is hardly 4% of the revenues of
the industry;
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(viii) Assuming that the Respondents have interpreted the
provision while issuing the Circular, unless this Court
comes to a conclusion that the interpretation is arbitrary
and perverse, this Court will not interfere if the
interpretation adopted by the respondent is consistent with
the law. Reliance is placed on the decision of the Supreme
Court in Kendriya Karamchari Sehkari Grah
Nirman Samiti Ltd., Vs State of UP reported in
(2009) 1 SCC 754. Even assuming without admitting
that the submissions of the petitioner are accepted vis-à-
vis some part of the Circular being an interpretation, only
the offending part will be affected. The doctrine of
severability would come into play and the entire Circular
will not be quashed as it is otherwise informative in nature
as it creates awareness about the legal provision and the
Public Notice issued by the Central Government. In terms
of the Act, as regards the events mentioned in Section
52(1)(za), the same do not constitute infringement of
copyright and no fees/royalties can be charged by the
copyright societies. Even assuming that the petitioner's
submission is correct that the Circular ventures into
interpretation of the provision, this Court will still not
interfere in the exercise of writ jurisdiction, as any
interference will revive or perpetuate an illegality (charging
fees for events which the Act has excluded from the
purview of copyright infringement);
(ix) If it is the case of the petitioner that they are entitled to
charge the fees/royalties, nothing prevents the petitioner
from filing a suit in terms of Section 55 to recover the
same, or to take recourse to appropriate remedies for
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criminal 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 Copyright Act 1957.
2. It is well known that Section 52 of Copyright
Act 1957 enumerates certain acts which shall
not constitute an infringement of Copyright.
Section 52 (1) (za) specifically mentions 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 bonafide religious ceremony or an official
ceremony held by the Central Government or
the State Government or any local authority, as
not constituting infringement of Copyright.
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Religious Ceremony (for the purpose of the
aforementioned clause) includes a marriage
procession and other social festivities
associated with marriage.
3. In view of above, Copyright Societies are
directed to strictly refrain from entering into
acts which are in contravention to Section 52 (1)
(za) of Copyright Act 1957, in order to avoid any
legal action. Also, the General Public is hereby
cautioned to not to accede to any uncalled
demands from any
individual/organization/copyright society
which are in violation of Section 52 (1) (za) of
Copyright Act 1957.
Sd/- 24.07.2023
(Naveen Kumar)
Under Secretary to
Government of India
Tel: 011-23038988"
11. It is then pertinent to extract the impugned Circular dated
30.01.2024 issued by respondent No.1 which reads thus: -
CIRCULAR
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12. Some of the provisions of the Copyright Act which need to be
kept in mind in the context of the present case are thus: -
Section 2(q) defines "performance" to be in relation to
performer's right, means any visual or acoustic
presentation made live by one or more performers;
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Section 2(qq) provides for the definition of
"performer" as includes an actor, singer, musician,
dancer, acrobat, juggler, conjurer, snake charmer, a
person delivering a lecture or any other person who
makes a performance;
Section 2(t) defines "plate" includes any stereotype or
other plate, stone, block, mould, matrix, transfer,
negative, [duplicating equipment] or other device used
or intended to be used for printing or reproducing
copies of any work, and any matrix or other appliance
by which [sound recording] for the acoustic
presentation of the work are or are intended to be
made;
Section 2(xx) defines "sound recording" to mean
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.
13. Chapter III contains the provisions relating to Copyright. Section
13(1) provides that subject to the provisions of this section and the
other provisions of this Act, copyright shall subsist throughout India in
the following classes of works, that is to say, --
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) [sound recording].
14. Section 14(1) stipulates that for the purposes of this Act,
"copyright" means the exclusive right, subject to the provisions of this
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Act, to do or authorise the doing of any of the following acts in respect
of a work or any substantial part thereof, namely: --
(a) in the case of a literary, dramatic or musical work, not
being a computer programme;
(i).........
(ii) ............
(iii) to perform the work in public, or communicate it to the
public;
(iv)..............
Section 14(1)(e) provides that in the case of a sound recording, --
(i)............
(ii)...........
(iii) to communicate the sound recording to the public.
Section 18 provides for the assignment of copyright. The mode of
assignment is prescribed by Section 19.
15. Chapter VI deals with licences. Section 30 thereunder says that
the owner of the copyright in any existing work or the prospective
owner of the copyright in any future work may grant any interest 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.
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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 reasonable ground for believing that such
communication to the public would be an
infringement of copyright; or]
(b) when any person--
(i) makes for sale or hire, or sells or lets for hire, or
by way of trade displays or offers for sale or hire,
or (ii) distributes either for the purpose of trade or
to such an extent as to affect prejudicially the owner
of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports [***] into India, any infringing copies
of the work:
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[Provided that nothing in sub-clause (iv) shall apply
to the import of one copy of any work for the
private and domestic use of the importer.]
Explanation. -- For the purposes of this section, the
reproduction of a literary, dramatic, musical or
artistic work in the form of a cinematograph film
shall be deemed to be an "infringing copy".
17. Section 52 provides certain acts not to be infringement of
copyright. The bone of contention in the present petition is sub-section
(za) of Section 52(1) which reads thus: -
(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;]"
18. Civil remedies for infringement of copyright are provided in
Chapter XII. Section 55(1) provides that where copyright in any work
has been infringed, the owner of the copyright shall, except as
otherwise provided by this Act, be entitled to all such remedies by way
of injunction, damages, accounts and otherwise as are or may be
conferred by law for the infringement of a right.
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19. It is also important to bear in mind Section 60 which provides
that where any person claiming to be the owner of copyright in any
work, by circulars, advertisements or otherwise, threatens, any other
person with any legal proceedings or liability in respect of an alleged
infringement of the copyright, any person aggrieved thereby may,
notwithstanding anything contained [in section 34 of the Specific
Relief Act, 1963 (47 of 1963)], institute a declaratory suit that the
alleged infringement to which the threats related was not in fact an
infringement 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
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(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 with both.
Section 70 ordains that no Court inferior to that of [a Metropolitan
Magistrate or a Judicial Magistrate of the first class] shall try any
offence under this Act. Chapter XIV provides for appeals against
certain orders.
21. We must bear in mind the observations of the Supreme Court in
Eastern Book Company & Ors. V/s D.B. Modak & Anr.1 before
proceeding further. The copyright protection finds its justification in
fair play. When a person produces something with his skill and labour,
it normally belongs to him and the other person would not be
permitted to make a profit out of the skill and labour of the original
author and it is for this reason the Copyright Act, 1957 gives to the
authors certain exclusive rights in relation to the certain work referred
in the Act. 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. Copyright is a right to stop others from exploiting the work
without the consent or assent of the owner of the copyright. A copyright
law presents a balance between the interests and rights of the author
and that of the public in protecting the public domain, or to claim the
copyright and protect it under the copyright statute. One of the key
requirements is that of originality which contributes, and has a direct
nexus, in maintaining the interests of the author as well as that of
public in protecting the matters in public domain. It is a well-accepted
(2008) 1 SCC 1
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principle of copyright law that there is no copyright in the facts per se,
as the facts are not created nor have they originated with the author of
any work which embodies these facts. The issue of copyright is closely
connected to that of commercial viability, and commercial
consequences and implications.
22. Bearing the aforesaid principles in mind, it is pertinent to note
that for infringement of copyright, civil remedies are provided in
Section 55 of Chapter XII of the Copyright Act. The owner of the
copyright is entitled to all such remedies by way of injunction,
damages, accounts and otherwise as are or may be conferred by law for
the infringement of a right. The proviso to Section 55 says that if the
defendant proves that at the date of the infringement, he was not aware
and had no reasonable ground for believing that copyright subsisted in
the work, the plaintiff shall not be entitled 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.
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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) a cinematograph film;
(iii) a sound recording"
25. Section 62 provides for the jurisdiction of the Court over matters
arising under Chapter XII. Chapter XIII of the Copyright Act are
provisions for dealing with copyright offences. Section 64 stipulates
the power of police to seize infringing copies.
Sub-section (1) of Section 64 provides that any police officer, not
below the rank of a sub-inspector, may, if he is satisfied that an offence
under Section 63 in respect of the infringement of copyright in any
work has been, is being, or is likely to be, committed, seize without
warrant, all copies of the work, and all plates used for the purpose of
making infringing copies of the work, wherever found, and all copies
and plates so seized shall, as soon as practicable, be produced before a
Magistrate.
Sub-section (2) of Section 64 says that any person having an
interest in any copies of a work or plates seized under sub-section (1)
may, within fifteen days of such seizure, make an application to the
Magistrate for such copies or plates being restored to him and the
Magistrate, after hearing the applicant and the complainant and
making such further inquiry as may be necessary, shall make such
order on the application as he may deem fit.
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Though not relevant to the contextual facts, a reference to
Section 65-A which was inserted with effect from 21.06.2012 is
necessary as it contains provisions for protection of technological
measures making any person who circumvents an effective
technological measure applied for the purpose of protecting any of the
rights conferred by this Act, with the intention of infringing such rights
liable for the punishment prescribed.
26. Section 68 of the Act 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 with both.
27. Section 68-A provides for penalty for contravention of Section
52-A. Section 68-A says that any person who publishes a sound
recording or a video film in contravention of the provisions of Section
52-A shall be punishable with imprisonment which may 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
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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. Then there are adequate provisions in the Act
safeguarding the interest of the defendants against whom the action
may be initiated by the copyright owner which we have referred to
above. Thus, as observed by Their Lordships, the copyright law
presents a balance between the interests and rights of the author and
that of the public in protecting the public domain, or to claim the
copyright and protect it under the copyright statute. It is important to
bear in mind that the issue of copyright is closely connected to that of
commercial viability, commercial consequences and implications.
29. Now let us turn to the impugned Circular dated 30.01.2024. The
circular relies upon a public notice dated 24.07.2023 issued by the
Ministry of Commerce and Industry. The public notice dated
24.07.2023 after referring to Section 52(1)(za) directs the Copyright
Society to refrain from entering into acts which are in contravention to
Section 52(1)(za) in order to avoid any legal action. Also, the general
public is thereby cautioned not to accede to any uncalled demands from
any individual/organization/copyright society which are in violation of
Section 52(1)(za) of Copyright Act 1957. We refrain from expressing
any opinion on public notice dated 24.07.2023 as the same is not the
subject matter of challenge in this petition.
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30. Section 52 contains provisions making certain acts not to be
infringement of copyright. Reading of Section 52(1)(za) does reveal
that it may pose interpretative challenges. We are concerned with the
expression 'bonafide religious ceremony'. The explanation to Section
52(1)(za) provides that for the purpose of clause (za) religious
ceremony includes a marriage procession and other social festivities
associated with a marriage. Therefore, if a sound recording is
communicated to the public in the course of any bonafide religious
ceremony and as the words "religious ceremony" as per the
explanation clause includes a marriage procession and other social
activities related with a marriage, a dispute may arise as to what is a
'bonafide religious ceremony' and/or the other social festivities
associated with a marriage. Thus, as per Section 52(1)(za), the
communication to the public of a sound recording of musical work or of
a sound recording in the course of any bonafide religious ceremony
including a marriage procession and other social festivities associated
with 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
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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 goes to clarify
that no hotel or any copyright society 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. The Circular says that the police staff has to be therefore
sensitized about the aforesaid provision of law so that no undue
harassment is caused to the general public. It further goes to provide
that the field units have to be instructed to take strict action against any
hotel or copyright society raising such illegal demands of royalties or
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. The circular in
expanding the scope of Section 52(1)(za) is bound to have consequences
disturbing the balance which the Copyright Act seeks to achieve
between the interest of the rights of the author/owner of the copyright
and those claiming protection of Section 52(1)(za). As to what shall not
constitute infringement of copyright is provided by Section 52(1)(za).
We are afraid that the circular, though claimed to be informatory in
nature to make the citizens aware about the provisions of Section
52(1)(za), according to us, such information has the effect of distorting
the provisions of Section 52(1)(za).
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33. In our opinion, the impugned Circular is much beyond the scope
of Section 52(1)(za). The requirement of Section 52(1)(za) says that the
performance of musical work or the communication to the public of a
sound recording in the course of any bonafide religious ceremony
would not be an act constituting an infringement of copyright. The
Explanation to Section 52(1)(za) says that for the purpose of clause
(za), religious ceremony including marriage procession and other social
festivities associated with a marriage. If the Circular is perused, the
same covers religious ceremonies/festivals including
weddings/marriage events and other social festivities associated with
marriage. No doubt, reading of the Circular shows that the same is
issued to prevent undue harassment to the general public. However, in
the process, the respondents have undertaken an interpretative
exercise of adding words in the circular which are not part of Section
52(1)(za). For instance, 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).
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34. The learned Additional Government Advocate was at pains to
point out that what the Circular does is only inform the general public
about the provisions of Section 52(1)(za) and nothing more. He further
submitted that the police staff has to be sensitized about the provisions
so that no undue harassment is caused to the general public. We find
that the Circular does much more than just informing the public the
provision of Section 52(1)(za). The field units have been instructed to
take strict action against any hotel or copyright society raising illegal
demands of royalties or 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.
35. The intent of the State to issue such Circular may have been
bonafide. We do appreciate the submissions of Mr Shirodkar that the
provisions should not be subject to misuse causing harassment to the
public. However the circular cannot overreach the provisions of Section
52(1)(za) and the Copyright Act itself. The Copyright Act provides for a
complete mechanism to redress the grievance of the copyright
owner/author of the copyright as also those who say that the act
complained is not an infringement of the copyright. The enforcement
mechanism is also prescribed by the Copyright Act.
36. There is one more reason why the impugned circular cannot be
sustained. As discussed earlier, 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. Thus, the issue of copyright is
closely connected to that of commercial viability, commercial
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consequences and implications. If such is the nature of the right
conferred on the author/owner, then, according to us, the question as
to what act is not an infringement of a copyright is best left for
adjudication by the competent forum which accords with the
mechanism provided under the Act. Hence the question whether the
act does not constitute an infringement of copyright needs to be
decided on a case to case basis. Rival claims may arise for
determination whether the act which is claimed to be not infringement
of a copyright may have to be dealt with the claim of the
author/copyright owner who contends that the act is closely connected
to that of commercial viability, commercial 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
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52(1)(za) is a question of fact which will depend upon the facts and
circumstances of each case.
39. According to us, the Circular puts fetters on the copyright
societies from exercising their rights under the Copyright Act. The
Circular saying that insistence by certain organizations, hotels for
getting permission from the copyright society for performance of
musical works, communication to the public sound recording is in
violation of Section 52 (1)(za), according to us, interferes with the
mechanism provided under the Act for exercise or enforcing rights of
copyright societies under the Copyright Act.
40. We have gone through the affidavit in reply filed on behalf of
respondent No.1. The respondents have taken a stand that public notice
is not an interpretation of law nor does it amounts to executive
overreach into the legislative domain. The respondent says that the
public notice is an informational document aimed at keeping the public
informed of their rights. The affidavit in reply says that several
complaints/representations were received by the Government from
M/s Crosscraft Private Ltd., Pataka event, DRQ Hospitality Services,
M/s Buzz events etc., concerning the conduct of the copyright societies
and/or persons purporting to be acting under such societies, who
would forcibly enter a marriage function and demand that the sound
recording being played at such functions be immediately stopped
unless their demand for royalties or tariff was acceded to. It is then
stated that copyright societies and/or persons acting under them would
often proceed under Chapter XIII of the said Act which provides for
offences under the said Act and abrupt a marriage function and/or its
related events using police force. It is further stated that to prevent
such abruption and undue violation of Section 52(1)(za) of the said Act,
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the Circular dated 30.01.2024 has been issued to sensitize and inform
the police the marriage venue owners and the copyright societies, the
applicability of Section 52(1)(za). The stand that Circular dated
30.01.2024 has been issued keeping with the same spirit with which the
Public Notice dated 24.07.2023 has been issued by the Union
Department.
(emphasis supplied)
41. On perusal of the impugned Circular and also the Public Notice
dated 24.07.2023 of the Government of India, we find that the stand of
the respondents that 'the impugned Circular has been issued keeping
with the same spirit as the one issued 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
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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. I say that the copyright
societies or copyright owners may seek recourse
under the provisions of the said Act and prosecute
those who they claim have infringed their
copyright by establishing the same by process of
law. I say that Circular dated 30.01.2024 seeks to
prevent unfettered interference by the authorities
or venue providers, on the behest of copyright
owners, which may disrupt ceremonies covered
under Section 52(1)(za) and hold such ceremonies
hostage."
42. Reading of the stand taken by the Respondents leaves us in no
manner of doubt that the Circular is not an informational document
aimed at keeping the public informed of their rights as contended by
the Respondents. Reading of Para 13 of the affidavit in reply makes it
obvious that the Respondents have entered into the realm of
interpretation of Section 52(1)(za) which is the domain of the
competent Court to determine in the facts and circumstances of each
case. The event Management companies/organisations are not before
us, hence we refrain from expressing any opinion on the contention of
learned counsel for the petitioners that the circular is at the instance of
event management companies/organisers to secure their interests
rather than that of the general public. We also did not go into the
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contention of the respondents as regards the circular being issued by
the State in the exercise of its executive powers under Article 162 of the
Constitution. We have tested the stand of the respondents on the basis
of the respondents' submissions that the circular is in the nature of
information to the general public about Section 52(1)(za).
43. The principles laid down in the decisions relied upon by Mr Deep
Shirodkar in Joint Action Committee of Air Line Pilots' Association of
India and others Vs Director General of Civil Aviation and others
[(2011) 5 SCC 435] (Para 18 to 22 ), Suhas H. Pophale Vs Oriental
Insurance Company Limited and its Estate Officer [(2014) 4 SCC 657]
(Para 56 and 58), Veerendra Kumar Dubey Vs Chief of Army Staff and
others [(2016) 2 SCC 627] (Para 15 and 16), Kendriya Karamchari
Sehkari Grah Nirman Samiti Limited Vs State of UP and another
[(2009) 1 SCC 754] (Paras 40, 42, 46), M/s Hiralal Rattanlal Vs State
of UP and another [(1973) 1 SCC 216] (Paras 22, 25, 26 ), are well-
settled principles of law binding us. However, in the contextual facts of
the present case and the provisions of the Copyright Act, we are
inclined to hold that the impugned Circular, for the reasons aforesaid,
is illegal and bad in law.
44. It is not possible for us to accept the submission of the learned
Additional Government Advocate that the Circular to the extent the
same is in consonance with the provisions of Section 52(1)(za) be saved.
The Circular in our opinion will have to be read as a whole considering
the overall tenor. The Circular warrants interference in the exercise of
writ jurisdiction of this Court under Article 226 of the Constitution of
India.
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45. 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. The impugned Circular dated
30.01.2024 issued by respondent No.1 is quashed and set aside. No
order as to costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
13th August 2024
