Delhi High Court
Phonographic Performance ... vs Lookpart Exhibitions And Events ... on 11 May, 2022
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:17.05.2022
11:54:42
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th May, 2022
+ CS(COMM) 188/2022 & I.A. 4772/2022
PHONOGRAPHIC PERFORMANCE LIMITED ..... Plaintiff
Through: Mr. Akhil Sibal, Sr. Advocate with
Mr. Ankur Sangal, Ms. Suchita Roy
& Ms. Trisha Nag, Advocates (M-
9876322740)
versus
LOOKPART EXHIBITIONS AND EVENTS PRIVATE
LIMITED ..... Defendant
Through: Mr. Rajat Manchanda & Ms. Tanya
Singh, Advocates (M-9899850805)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present suit has been filed by the Plaintiff - Phonographic
Performance Limited (hereinafter, "PPL") which is engaged in the business
of issuance of licenses for public performance/communication to the public
of sound recordings on the basis of assignments granted to it by its member
record labels, i.e., owners of copyright in sound recordings. The Plaintiff
seeks an injunction against the Defendant- Lookpart Exhibitions and Events
Private Ltd., which is an event management company, providing various
event management services, including DJ services for various social events,
such as weddings.
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:17.05.2022
11:54:42
3. Submissions have been heard in part on the application being
I.A.4772/2022 seeking interim injunction. Mr. Akhil Sibal, ld. Senior
Counsel has made submissions on behalf of the Plaintiff.
4. Reply on behalf of the Defendant is stated to have been filed.
However, the same is not on record. Let the same be brought on record.
Copy of the same has been handed over to the Court and the same has been
perused.
5. The present case involves an interpretation of Section 52(1)(za) of the
Copyright Act, 1957 (hereinafter, "Act"). The said provision reads as under:
"(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 includes a marriage procession and other
social festivities associated with a marriage;]"
6. The case of the Plaintiff is that the Defendant is using sound
recordings in respect of which the Plaintiff has rights, at various social
events managed and organised by it at commercial venues, on a regular
basis. It is submitted that the Defendant, while organising its events,
including weddings / marriage ceremonies and other social events, ought to
obtain licences for playing music. However, according to the Plaintiff, the
Defendant has refused to obtain a license despite correspondence having
been addressed to the Defendant.
7. On the other hand, the Defendant relies upon the Explanation to the
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By:DEVANSHU JOSHI
Signing Date:17.05.2022
11:54:42
above provision to argue that when music is to be played for the purposes of
marriage ceremonies or other social events connected with marriages,
including a marriage procession, the use of music is deemed to be fair use,
and hence, no licence would be required.
8. This Court is of the opinion that, in the Indian context, music is an
integral part of any wedding or marriage ceremony. The kind of music
played typically ranges from devotional or spiritual music for the purposes
of the marriage ceremony to popular music in various languages. Apart from
the actual marriage ceremony itself, there are other ceremonies such as tilak,
sagan, cocktail parties, dinner, mehndi, sangeet, etc., which have become an
integral part of the wedding festivities. In all such ceremonies also music is
played. The above provision was inserted into the statute by virtue of The
Copyright Amendment Act 1994 w.e.f.10th May 1995.
9. The issue which has been raised in the present case would have large
scale implications for artists such as lyricists, music composers, singers,
sound recording producers and owners on the one hand as also, for entities
involved in the organisation and management of weddings and other social
events. The issue would also concern society in general.
10. Rule 31 of the Delhi High Court Intellectual Property Rights Division
Rules, 2021 reads as under:
"31. Panel of Experts
The Court may, in any IPR subject matter, seek
assistance of expert(s) (including individuals and
institutions) relating to the subject matter of the
dispute as may be necessary. The opinion of the expert
shall be persuasive in nature and shall not be binding
on the Court. The IPD may maintain a panel of experts
to assist the Court which panel may be reviewed from
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Digitally Signed
By:DEVANSHU JOSHI
Signing Date:17.05.2022
11:54:42
time to time. The remuneration of the expert(s) shall be
decided by the IPD. Prior to appointment, a
declaration will be provided by the expert that he or
she has no conflict of interest with the subject matter of
the dispute and will assist the Court fairly and
impartially.
Provided that the protocol to be followed by such
expert(s) shall be prescribed by the IPD, from time to
time."
11. As per the above Rule, the Court may seek assistance of experts if
deemed appropriate, considering the nature of the matter and the importance
of the issue involved.
12. Keeping in mind the significance of the issue to be adjudicated, this
Court is of the opinion that the opinion of an expert would be of assistance
to the Court. Accordingly, this Court appoints Dr. Arul George Scaria
(M: 8527262232) (Email: [email protected]), Associate Professor of Law
and Co-Director, Centre for Innovation, IP and Competition, National law
University, Delhi, who has authored books on Copyright and several articles
in the field of IP, as an expert to assist the Court.
13. Let the Registry issue notice to Dr. Arul George Scaria at the email
address and phone number. The expert shall file a written note of
submissions on the issue raised in the present case. The expert would
consider the legislative history of the provision Section 52(1)(za) of the
Copyright Act, 1957, and cite the relevant case law, from India and abroad
on the question of fair use and fair dealing. For the said purpose, the
Registry to transmit the electronic record of the present case to the expert.
14. The Court fixes the fee of the expert at a lump sum of Rs.1,00,000/-.
Ld. Counsels for the Plaintiff have fairly agreed to bear the said fee of the
Signature Not Verified
Digitally Signed
By:DEVANSHU JOSHI
Signing Date:17.05.2022
11:54:42
expert.
15. List for further submissions on 6th July, 2022.
16. This shall be treated as a part-heard matter.
PRATHIBA M. SINGH
JUDGE
MAY 11, 2022
Rahul/AD
