“Illegal & Bad In Law”- Bombay HC Quashes Circular Excluding Musical Performance At Religious Ceremonies Like Weddings From Copyright Violation

The Bombay High Court has quashed a circular issued by the Goa State by which it excluded musical performance at religious ceremonies including weddings from the violation of the Copyright Act, 1957.

The Goa Bench was deciding a batch of two writ petitions filed by companies namely Phonographic Performance Limited and Sonotek Cassettes Company seeking quashing and setting aside of the said circular.

A Division Bench comprising Justice M.S. Karnik and Justice Valmiki Menezes observed, “… 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. … 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.”

The Bench said that the circular cannot overreach the provisions of Section 52(1)(za) and the Copyright Act itself.

Senior Advocates Nitin Sardessai and S.S. Kantak appeared on behalf of the petitioners while Advocate Y.V. Nadkarni appeared on behalf of the respondents.

Brief Facts -

The petitioner 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. 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 also actively prosecutes the violators of its copyright in civil as well as criminal Courts as per the remedies available under the Copyright Act. The cause for filing the petitions was a Circular dated January 30, 2024 issued by the State of Goa, addressed to the office of the DGP, Panaji Goa. By a legal notice in February this year, the petitioner called upon the State 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 and hence, it was before the High Court.

The High Court in the above regard noted, “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. … 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.”

The Court added that 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 and thus, the issue of copyright is closely connected to that of commercial viability, commercial consequences, and implications.

“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”, it observed.

The Court further noted 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”, it also said.

The Court, therefore, held that the impugned circular is in the teeth of the provisions of the Copyright Act.

Accordingly, the High Court allowed the petitions and quashed the impugned circular.

Cause Title- Phonographic Performance Limited v. State of Goa & Ors. (Neutral Citation: 2024:BHC-GOA:1357-DB)

Appearance:

Petitioners: Senior Advocates Nitin Sardessai, S.S. Kantak, Advocates Pulkit Bandodkar, Ankur Sangal, Sucheta Roy, Tarun Rebello, S. Sardessai, Saicha Dessai, Simoes Kher, and Ankit Arvind.

Respondents: AGA Deep Shirodkar, Advocates Y.V. Nadkarni, Shailesh Redkar, and S. Khadilkar.

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