DEVENDRAKUMAR RAMCHANDRA DWIVEDI Vs. STATE OF GUJARAT
LAWS(GJH)-2008-9-173
HIGH COURT OF GUJARAT
Decided on September 24,2008

Devendrakumar Ramchandra Dwivedi Appellant
VERSUS
State of Gujarat and 3 Ors. Respondents

JUDGEMENT

K.S. Radhakrishnan, C.J. - (1.) PETITIONER has come up with this public interest litigation apprehending disruption of Navratri Garba/Dandiya Mahotsav by the police at the instance of fourth respondent for alleged violation of provisions of the Copyright Act, 1957.
(2.) PETITIONER claims to be a resident of Ahmedabad and is engaged in the business of serving Sharbat and drinking water etc. on religious occasions and also on various other festivals. Petitioner has submitted that he is not organizing any Garba/Dandiya festival or Mahotsav nor he is concerned with any organisation in any manner holding any such event but all the same he is concerned with the interest of the general public who assemble in various venues where Garba and Dandiya Mahotsav are organised. Petitioner has referred to the newspaper report appeared in Sandesh daily stating that notices have been issued by the fourth respondent society to various hotels, clubs and restaurants indicating the necessity of obtaining licence at the tariff rates applicable to the Public Performance of Music by way of Live Performance, DJ Music & Live with the DJ (Recorded Music) etc. Petitioner further stated that there is no necessity to obtain licence from fourth respondent for conducting performance and religious ceremony of Garba/Dandiya in any manner and Garba/Dandiya is culture and tradition of Gujarat State since generation and public domain even before any kind of statute was enacted. Further, it is also stated that many folk dance, musical work and other dramatic work or action intended to be sung, spoken or performed with music work, are forming part of the religious heritage of the State, which is an art adopted in number of movies also. Petitioner submits that purported actions of the fourth respondent is contrary to the public interest and would create serious law and order problem in the celebration of the Navratri Garba Mahotsav which is nothing but a religious ceremony and/or celebrated by the public at large with religious fervour. Petitioner has, therefore, sought directions to respondents No. 2 and 3 not to act on the impugned communication issued by the fourth respondent and also other consequential reliefs.
(3.) LEARNED Advocate Mr. A.M. Hawa took notice for fourth respondent when the matter came up for admission. We heard learned Senior Counsel Mr.Mihir Joshi for the petitioner and learned Senior Counsel Mr.Minir Thakor for the fourth respondent and the learned AGP Mr.Devang Vyas. Detailed counter -affidavit has been filed on behalf of the fourth respondent. Fourth respondent has stated that it is a society registered under Section 33(3) of the Copyright Act, 1957 and it has been established to monitor, protect and enforce the rights, interest and privileges of its members comprising of authors, composers as well as music publishers. Fourth respondent is the owner or authorized administrators of Copyrights in a vast repertoires of literary and musical works assigned to them by its members. Owner of the Copyright in the Literacy or Musical Works enjoys a number of rights exclusively as set out in Section 14(a) of the Act and include the right to perform the work in public or communicate it to the public. Every event organizers/managers, broadcasting organisation, shop, departmental store, showroom, emporium, restaurant, hotel, club, disco, bars, office establishments, television channels, music concerts etc. which play music, impinges on this right unless it seeks permission of the fourth respondent society. Fourth respondent submitted that the exploitation of the works within the repertoire of fourth respondent during the course of a show or event involving public performance to the public or communication to the public of work within repertoire of the fourth respondent, without a license from fourth respondent amounts to infringement of the copyright as per the statutory provisions of Copyright Act, 1957 read with Section 14(a)(iii) of the Act. Further, it has been stated that the petitioner has not supplied any material whatsoever that any entity organizing Garba/Dandiya is an amateur club or a religious organisation. Further, it has also been stated that entry to Garba/Dandiya venues is subject to entry fee and the fact that Garba/Dandiya events are social functions which is contrary to the claim of the petitioner that they are religious ceremonies. Further, it has also been stated that Section 52(za) of the Act would exempt bona fide religious ceremonies and under no circumstances, can an event where music is played, entry fee is charged be construed to fall within legislative intention of bona fide religious ceremony. Further, it has also been stated that Pujas or religious ceremonies where music is utilized including marriage functions or ceremonies associated with marriage functions are exempt for the very specific purpose of protecting the religious sensibilities of Indian. Counter affidavit also makes it clear that fourth respondent has not collected license fees for Folk Music or Public Domain Music in any manner. Fourth respondent has brought this to the notice of the general public. Further, it has been stated that all the same, the fourth respondent seeks to collect license fees is in respect of the exploitation of music and lyrics from within the repertoire of the fourth respondent only and not from public domain music or folk music. Further, it has also been stated that in the past, various entities conducted various Dandiya/Garba dance events wherein works administered by the fourth respondent have been publicly performed and it is for this reason such entities have also taken licenses from the fourth respondent for the use of works within the repertoire of the fourth respondent. Further, it has also been stated that exploitation of music and lyrics from within the repertoire of the fourth respondent during the course of a show or event involving public performance amounts to infringement of copyright as per the statutory provisions of Section 51 read with Section 14(a)(iii) of the Copyright Act, 1957.;


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