Delhi High Court Acknowledges Dr. Arul Scaria’s Assistance in Copyright Litigation | Submissions Taken on Record

The Delhi High Court, while dealing with the legal issue of use of music in marriages, has taken NLS faculty member Dr. Arul Scaria’s written submissions on record. Dr. Arul George Scaria is an Associate Professor of Law and the LLM Chair at NLSIU.  

The Court was dealing with a suit filed by a copyright collective engaged in the business of issuance of licences of songs for performance or communication. The Plaintiff had filed the case against an event management company which provides DJ services at social events like weddings. 

The case of the Plaintiff was that the company was using sound recordings to which the Plaintiff had rights, at social events or commercial venues. The collective initiated a case against the company as the latter had argued that they’re exempted under Section 52(1)(za) from taking any license.

Given the far-reaching implications of the case, Dr. Scaria was appointed as an expert by Justice Pratibha M Singh to prepare a comprehensive report on the issue. “The Bench felt that any decision on the dispute raised by the plaintiff can have large-scale implications for artists, societies and other stakeholders,” said Dr. Scaria. 

In an unusual move, despite the withdrawal of the original suit, the Delhi High Court has taken Dr Scaria’s written submissions ‘for the sake of record’, acknowledging his “valuable assistance…in addressing the legal issues which have been raised.” 

As part of his written report, Dr. Scaria informed the Court that: “The use of music as part of marriage ceremonies and any festivities associated with marriage is one of such instances wherein the Court may have to engage in a broad reading of the provision for the wider social benefit, thereby striking a proper balance between the rights of copyright owners and the rights of the users/ society in using those works.”

His report, which examines in detail the social, cultural, historical and legal dimensions of Sec. 52(1)(za), is available here.

Interview with Dr. Arul Scaria

We spoke to Dr. Arul to know more about the litigation and Section 52(1)(za) of the Copyright Act. Here’s what he had to say:

Context of the litigation:

Under the Copyright Act 1957, Sec. 52(1)(za) exempts the use of certain copyrighted works for official ceremonies and bonafide religious ceremonies. The explanation provided to the provision specifically mentions that the term ‘religious ceremonies’ includes marriage procession and any festivities associated with marriage. 

What often happens is that when people play music as part of their wedding — say for example, during the marriage ceremony or the wedding reception – the copyright owners or the copyright collectivities may demand royalty payment. Many times, such demands for payment may come as last minute surprises!

People often rely on a third party such as a local band or an event management company for playing music as part of their wedding related celebrations. The defendant in this case was an event management company and an important question that arose in the case was whether the exception provision also covered such scenarios.

On Copyright Infringement and Criminal Remedies:

Copyright law provides for criminal remedies which means the police can get involved in cases of copyright infringement.  In a recent judgement, the Supreme Court ruled that copyright infringement is a non-bailable and cognizable offence which means a police officer can initiate action without a warrant if there is any suspicion of copyright infringement. 

There have been instances of threatening people with police interventions,when they refuse to pay a licence fee for playing audio recordings as part of their weddings. Such instances are more or less like extortion and have been well documented in the media as well. 

So this exception provision [Sec. 52(1)(za)] has enormous significance on that front. It conveys that use of music as part of festivities  is not a copyright infringement. Any attempt to extort money during such events is a misuse of the copyright law!

On why this case was unusual:

• Section 52(1)(za) has been in existence since 1984. But there hasn’t been any detailed judicial pronouncements or scholarly analyses of this provision. This was the first time a Court decided to look at the context and scope of the provision in detail. It is also remarkable that the Court engaged an independent academic expert in this regard.
• In this litigation, the parties opted for a settlement and there was no final judgement on the questions of fact/ law. However, the Court recorded the summary of the report as part of its order. By doing this, the Court has ensured that this study will get its due visibility in all future litigations dealing with Sec. 52(1)(za). So this case was unusual on many fronts.

On what members of the public, artists and other stakeholders need to be aware of:

In case of public performances of any copyrighted work, unless you are able to show that your use is covered under one of the exceptions provided under Sec. 52 of the Copyright Act, the general position of the law is that one may be liable for copyright infringement. In other words, you need to  take permission (read as license) from the concerned copyright holders. 

In the case of a musical performance in public, this is a particularly challenging issue as there are different copyrights involved such as the lyrics, the musical composition, and the sound recording (and therefore possibly different copyright holders also!).  

On academic expertise in legal matters:

It has been uncommon to see academic expertise making its way into ongoing legal proceedings in India. In a matter like this, one could also see why the court thought it best to engage with an independent academic expert.

In Indian intellectual property litigation, this is one of the rare occasions when an academic was engaged by the court in an ongoing litigation. The first instance that I know of, is that of Prof. Shamnad Basheer, who had filed an intervention application in the famous Novartis case and his intervention was allowed. His arguments played a major role in the final outcome in that case. 

To the best of my knowledge, the Sec. 52(1)(za) litigation is perhaps the first instance where the court itself appointed an academic expert in an ongoing IP litigation. I truly hope that this paves the way for many more academic interventions in IP litigations in India.

On  cultural diversity and Sec. 52(1)(za):

My mandate was to identify the scope of Section 52(1)(za). So it was important to understand and highlight the historical and social contexts of this particular provision. My research suggests that one of the primary reasons for the existence of  such a provision is the soci0-cultural diversity in India. Ours is a very unique context as we have innumerable communities and traditions. 

In the report, I have discussed the marriage related festivities among 5 communities in Kerala, as an example. When we see so much diversity in the celebration of marriages within just 5 communities in one state like Kerala, imagine the extent of diversity in the whole country. 

And this provision caters to that rich cultural diversity by using the word “any festivities associated with marriage”. If only the words “religious ceremony” was used, the scope of it would have been narrow. But the legislators have taken the Indian context into consideration.  As long as the festivities are directly related to marriage, it is within the ambit of this provision. A court should also keep this broader context in mind, while interpreting Sec. 52(1)(za).

Read the full report:

The full text of the report, which examines the social, cultural, historical and legal dimensions of Sec. 52(1)(za), is available here.