SECTION 52(1) (ZA) OF COPYRIGHT ACT, 1957 AND ITS LEGAL INTERPRETATION
Section-52 of the Copyright Act, provides for certain exceptions to infringement of copyright thereby allowing use of copyrighted works without permission of the right holder. It is usually termed as fair use or fair dealing in legal parlance and does not amount to any kind of infringement. Literary, dramatic, musical or aesthetic work and their fair use in context or private as well as personal including study, criticism or review, coverage of current affairs, temporary or accidental storage during technological process of electronic transmission, reproduction for any judicial proceeding is not being considered as infringement of copyright. Section 52 (1) (za) provides that the performance of a literary, dramatic or musical work or the communication to the public of such work or of sound recording in the course of any bona fide religious ceremony or an official ceremony held by government or local authority shall not amount to copyright infringement. Therefore no license is required in furtherance of the same. Knowledgentia Consultants is known for providing best copyright registration services within India as well as global IPR protection .
SECTION 52 (1) (ZA), COPYRIGHT ACT
In a recent case titled, Phonographic Performance Limited Vs Look part Exhibitions and Events Private Ltd, the Plaintiff who was engaged in business of issuing licenses for public performance/ communication to the public of sound recordings on the basis of assignments granted to it by its member record labels filed a suit stating that the defendant who is an event management company, is infringing its copyright work by using sound recordings over which plaintiff had rights at various social events such as weddings.
The defendant sought a protection under section 52(1) (za) of the Copyright Act, 1957. The court in this case, observed that the exception of the said section which includes marriage will probably mean aligned functions like sangeet, mehndi etc. Thus, the court was in opinion to appoint an academic expert which was essential for interpreting Section 52 (1) (za) of the Copyright Act, in this present case.
The appointment of Prof. Scaria by the Delhi High Court as an expert to interpret one of the key fair use provisions was to provide with the exact interpretation of the said section and if the word marriage is included in this said section or not.
The issue which has been raised in the present case has 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. This issue concerns the Indian society in general.
The Courtin this case opined that, 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. Further, there are other ceremonies such as tilak, sagan, cocktail parties, dinner, mehndi, sangeet, etc., which have become an integral part of the wedding festivities. The appointment of expert will have a great impact in this present case and the expert’s opinion will be noticed in such a way that interpretation of section 52(1) (za) will be easy for the legal experts as well. The Court in this case, directed the expert to file a written note of submissions on the issues raised in this case, and also to consider legislative history of this provision and therafter cite relavent case laws within and outside India on the question of fair use and fair dealing. What needs to be seen now is what turn the case will take and how new paths will be chartered in the copyright regime through culmination of this case.
In order to determine whether an act constitutes a fair dealing as provided under Section 52 of the Copyright Act, 1957 or else it amounts to infringement of a Copyright, following are the factors that the courts have been taking into consideration.
- The purpose and character of the use of such work, it has to be determined whether the work is of commercial nature or for a non profit/educational purpose.
- Nature of the Copyrighted work.
- The portion used as a part of the Copyrighted work as whole.
- The effect of the use of such work on the market or value of the copyrighted work.
- Not a substitute for the original work.
- Also, is transformative in nature that is, adds new meaning and message to the original.
If these factors are present in a work it can be dealt under the scope of fair dealing.
The test to determine whether a copyrighted work falls within the exception of fair dealing differs from case to case basis and from one country to another depending on local situation. Though the legislature has attempted to make law on this concept more flexible but precise, in the Indian scenario, section 52 of the Copyright Act, 1957 makes a legitimate stand for the public to rely upon this provision for now. As mentioned under Article 13 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) which reads as follows:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder”.
India has been able to establish a proper ground as for now since the whole idea having an exception as against the protection of copyright is to give rise to creativity and growth which can be transformed and expressed in many other new ways so as to encourage people to attain such degree of creativity with careful consideration to the original copyrighted work. Knowledgentia Consultants has earned a name as one of the most client focused firm in India providing best copyright registration services. We are you one-stop solution for all kinds of legal, compliance and supplemental copyright matters. In case of any query regarding this matter you may email us at email@example.com or visit our website –https://knowledgentia.com/.
PUBLISHED BY MS APARNA JAIN, MS HARINDER NARVAN, MS AASHRIKA AHUJA AND MR. DEBANJAN ROY CHOUDHARY AS ON 04.07.2022