AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (8) TMI 1479
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....4 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 entitl....
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....gal 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 n....
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....es 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. 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....
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....ourt 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; (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,....
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....the petitioner from filing a suit in terms of Section 55 to recover the same, or to take recourse to appropriate remedies for 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 ....
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....olation of section 52(1)(za) of Copyright Act 1957 and is adversely affecting not only the citizens but also the economic/tourism activities in the state. It is therefore clarified 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. 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 (Vive....
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..... (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. 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 g....
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....ides 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 o....
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....t 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 ot....
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....rovisions 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 t....
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....blic 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 a....
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....t 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 interpre....
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....r, 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 insi....
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....r 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....