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April 27, 2021

Article: Does Playing Songs at Political Rallies Infringe the Rights of the Owner?

Author: Intern - Ujjawal Bhargava

Introduction

Political parties host numerous rallies before the elections begin and a common practice that is noticeable in these rallies is that they use various songs in these rallies. It is imperative to understand therefore whether the act of using songs in political rallies will infringe the rights of the owner of the song.

Who owns copyright in a song?

It is pertinent to note that the term “song” is not defined in the Copyright Act, 1957 (‘the Act’). Nevertheless, a song can be understood from two different angles. Firstly, when the song is produced as a separate album. Secondly, when the song is produced and used in a cinematographic film.

From the reading of sub-section (d) of Section 2 of the Act, author in relation to a sound recording means the producer. Further Section 17 of the Act states that the author of a work shall be considered as the first owner of the copyrighted work. It is evident that the producer will be the owner of the song. In case of songs being produced as a separate album the person or company who produced the song will be the owner. In case of songs being used in a cinematographic film, the producer of the cinematographic work will be the owner of the song as held in Indian Performing Rights Society v. Eastern India Motion Pictures Association and Ors. [1].

Does playing songs at political rallies infringe the owner’s rights?

This question would not arise if there is a license agreement between the owner and the political party using the song. For this article, it has to be assumed that there are no license agreements between the owner and the political parties. In absence of a license, if the song is used directly by the party it is prima facie infringing the copyright in the song. However, it has to be assessed whether such use by a political party falls under any of the exceptions provided in Section 52 (fair dealing) of the Act. From a reading of Section 52, it can be assessed that there is no provision under this section that permits the use of a song for political rallies.

However, the Delhi High Court in Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors. [2] said that “Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Therefore, the resort must be made to the four-factor test:

        i.            “the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

      ii.            the nature of the copyrighted work;

    iii.            the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    iv.            the effect of the use upon the potential market for or value of the copyrighted work.

The above-mentioned test can be applied in the context of political rallies. 

Firstly, it has to be determined that the use is of a commercial nature or not. With respect to political rallies it can be said that the use is commercial in nature because although the primary goal is to achieve power for the party, a secondary goal to have monetary benefits is also accompanied.

Secondly, the nature of the work has to be determined. If the work is a factual work, lesser protection will be provided as compared to a creative work. In the instant case, since a song is a creative work, protection will be provided and will be against fair dealing. 

Thirdly, the amount and substantiality has to be assessed. Political parties tend to use the most relevant portion of the song (qualitatively significant portion), therefore it will be against fair dealing.  

Lastly, effect upon the potential market has to be seen. Using a song does not hamper the potential market of the song, however, it may increase the popularity of the song. This factor is in favour to conclude it as fair dealing. Thus, looking at the four factor test it can be concluded that the acts of political parties do not fall under fair dealing and infringe the rights of the owner.

Conclusion

After a due consideration of the provision in respect of fair dealing in the Act, it is clear that the act of using songs by political parties in rallies does not amount to fair dealing. Further, the test laid down by the Courts also clears that such an act does not amount to fair dealing. Thus, it can be concluded that playing songs at political rallies without owner’s permission infringe the rights of the owner.

REFERENCES:

[1] Indian Performing Rights Society v. Eastern India Motion Pictures Association and Ors. 1977 AIR 1443.

[2] Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors. 2008 ( 38 ) PTC 385 ( Del ).

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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