GUESTS IN HOTEL ROOMS AMOUNT TO “PUBLIC AUDIENCE”: THE COPYRIGHT ACT, 1957
Provision of Law:
Section 2 (ff) of the Copyright Act, 1957:
“Communication to the public” means making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.
Explanation: For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.
Position of Law in England: The English Copyright Act, 1911
In matter of: Jennings V/s Stephens, (1936) 1 Ch 469, while dealing with the English Copyright Act, 1911, the performance by a dramatic society at a monthly meeting of the Duston Women’s Institute without the consent of the owner of the copyright was considered as infringement. In deciding whether the audience could be considered as public or not, the court observed that the term ‘public’ is a term of uncertain import; it must be limited in every case by the context in which it is used; mere numbers cannot be the test. Thus, what was clearly intended was that some domestic or quasi-domestic entertainments may not come within the ambit of copyright. The court held that the true criterion for deciding this question was the character of the audience. If the audience partook of domesticity or quasi-domesticity, it would not be considered as a portion of the public, otherwise it would. There may be many cases in which there can be no doubt whether a particular performance is in public or in private; for example, the concerts given at the Albert Hall are performance in public. Music provided by a man for the entertainment of his guests after dinner or at a reception is performed in private. In the latter case the entertainment forms part of the domestic or home life of the person who provides it and none the less because of the presence of his guests; the guests are for the time being members of his home circle. Further, the court also observed that the expression “in public” must be considered in relation to the owner of the copyright. If the audience considered in relation to the owner of the copyright may properly be described as the owner’s public or part of his public, then in performing the work before that audience, he would be exercising the statutory right conferred upon him and if anyone who, without his consent, performs the work before that audience would be infringing his copyright. Applying this criterion, the court said that the performance before the Duston Women’s Institute was a performance in public.
A test similar to the one applied in the matter of Jennings (Supra) was applied in the matter of: Performing Right Society Ltd. V/s Hawthorns Hotel Ltd., (1933) 1 Ch 855, to hold that performance in the lounge of the hotel was a performance in public.
In the matter of: Ernest Turner Electrical Instruments Ltd. V/s Performing Right Society Ltd., (1943) 1 Ch 167, the music which was broadcast to employees during work was considered as performance in public, once again by applying the same tests namely: (1) the character of audience, whether it could be considered as purely domestic; (2)relationship between the owner of the copyright and the audience; and, (3) the impact of the performance on the value of copyright or the loss of profit which would otherwise have accrued to the owner if the same audience had watched the performance on payment.
There are some cases where the English Courts have laid emphasis on the nature of the place where the performance took place. For example, in Performing Right Society Ltd. V/s Hammond’s Bradford Brewery Co. Ltd., (1933) All ER Rep. 270, the plaintiffs had, inter alia, granted a license to the British Broadcasting Corporation (BBC) to broadcast their works for domestic and private use only. The defendant company, who owned a hotel, used a receiving set and loudspeakers to reproduce the broadcast by BBC for customers in their hotel by the hotel owners. This was considered as a performance in public. It should be noted that the BBC did not infringe the copyright by broadcasting. The owner of the hotel, however, was held to have infringed the copyright by receiving the broadcast and relaying it over loudspeakers to his customers.
In the matter of: Performing Right Society Ltd. V/s Camelo, (1936) 3 All ER 557, the music which was broadcast over the radio was played through a loudspeaker in a private room adjoining a public restaurant in such a manner that the music was clearly audible to the public in the restaurant. This arrangement was made by the owner of the restaurant. By so doing, the owner of the restaurant was held to have arranged for the music to be performed in public. He thereby infringed the copyright of the owner.
Position of Law in India: The Copyright Act, 1957
Under the Copyright Act, 1957, a broadcast to the public is expressly covered. There is no need, therefore, to consider where the “performance” takes place. The Copyright Act, 1957 covers a broadcast and defines it as communication of such work to the public either by wireless diffusion or by wire. Therefore, the question whether the performance is in the studio or whether there is a separate performance at places where the broadcast is received does not arise. It is also, therefore, not relevant whether this ‘performance’, that is, reception of the broadcast, is in a private room or in a public place. The only question which requires determination is whether such a broadcast is a “communication to the public”. In India, the permission by the author to perform in public includes a right to broadcast.
In the matter of: Garware Plastics & Polyester Ltd. (Bombay) & Ors V/s Telelink & Ors, AIR 1989 Bom 331, the question of law that arose for consideration before the Hon’ble Court was this:
“… whether by showing video films over Cable T.V. network to various subscribers the defendants are broadcasting video films to the public and thereby infringing the copyright of the plaintiffs[?] …”
Answering the above formulated question in the affirmative, the Hon’ble Court held that:
i. The Copyright Act, 1957 is meant to protect the owner of the copyright against unauthorized performances of his work, thereby entitling him to earn monetary gain from his intellectual property.
ii. Under Section 51 of the Copyright Act, 1957, copyright in a work shall be deemed to be infringed, inter alia, when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under the Copyright Act, 1957, does anything, the exclusive right to do which is by the Copyright Act, 1957 conferred upon the owner of the copyright.
iii. Whether a communication is to the public or whether it is a private communication depends essentially on the persons receiving the communication. If they can be characterized as the public or a portion of the public, the communication is to the public.
iv. In Para 21 to Para 23 and Para 27 it was observed that:
“… 21. The defendants in the present case do not have any authorization from the owners of the copyright in cinematograph films to broadcast their films. Their sole defence is that showing films to the members of their video network who pay them for watching these films, is not a broadcast because it does not amount to showing the film to the public or a section of the public.
… 22. From the authorities the principal criteria which emerge for determining the issue are (1) the character of audience and whether it can be described as a private or domestic audience consisting of family members or members of the household, (2) whether the audience in relation to the owner of the copyright can be so considered and (3) whether permitting such performance would in any way whittle down the protection given to the author of a copyright under the Copyright Act resulting in the owner being deprived of monetary gains out of his intellectual property.
… 23. Applying the test of the character of the audience watching these video films, can this audience be called a section of the public or is this audience a private or domestic audience of the defendants? In the present case, it cannot be said that the audience which watches video films shown by the defendants consists of family members and guests of the defendants. The video film may be watched by a large section of the public in the privacy of their homes. But this does not make it a private communication so as to take it out of the definition of “broadcast” under the Copyright Act, 1957. A broadcast is heard in millions of private homes. It is nevertheless a broadcast to the public. For example, if the President of India gives a Republic Day address over Doordarshan, it may be received by millions of viewers over their T.V. sets in their homes. But this does not make it a private communication. It is very much a communication to the public. The President is not making a private broadcast to each viewer or listener. The audience may be sitting in the privacy of their homes. But this makes no difference to the character of the audience. As McCardie J. would have put it (Messager V/s British Broadcasting Company Ltd., 1927 (2) KB 543), instead of gathering the audience in a theatre, the defendants, by modern, technology, are showing the film to that audience in their homes. To hold that this is not communication to the public would be to ignore the substance of the matter and the object and intent of the Copyright Act.
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… 27. … the defendants, by showing the film over a video T.V. network, are broadcasting the film or communicating it to a section of the public. …”
(In the present case, the plaintiffs were the Owners/Assignees of the Copyright and the defendants were the Cable T.V. Network Providers.)
v. In India, the Copyright Act, 1957 protects broadcasts and defines them as “communication to the public”.
In the matter of: Super Cassette Industries V/s Nirulas Corner House (P) Ltd., 148 (2008) DLT 487, it was observed that:
i. In Para 14 and Para 15 it was held that:
“… 14. The copyrights conferred under Section 14 of the Act consist of a bundle of rights. The owner of a copyright is entitled to assign and license each of those rights separately or in bundles. The bundle of rights could vary in complexity depending upon the nature of the work- literary, dramatic, musical recording or cinematographic films. In the case of music videos, which is essentially a cinematographic film, rights could subsist in the following works: lyrics of the song (literary), music composition (musical), choreography and performance (dramatic), the sets (artistic), the capturing of the musical work on tapes (sound recording) and the capturing of it all on a film (cinematographic film). Under Section 14, the rights to reproduce, perform, adapt, translate, make copies of these work exists. Each of these rights could be assigned, reassigned and licensed. For example, the owner of the rights in a cinematographic film, can license the literary and musical rights in the lyrics to a radio channel to be aired, and also assign the license to make copies of the cinematographic films on cassettes and CDs etc. to a person and so on. The work thus follows a trail of licenses.
… 15. … In relation to cable channels [T.V. Channels] the plaintiff [Copyright Owner] would convey the right to broadcast the work to public, they in turn would convey the right to re-broadcast the work to cable operators and what is conveyed to the customer is a license to watch the work. This trail of conveyance of the rights have to be kept in mind.” (emphasis supplied)
ii. The United States Supreme Court in the matter of: Jewell-La Salle Realty Co. V/s Buck, 1931 (283) US 191, acknowledged that the owner of a private radio receiving set, who in his home invites friends to hear a musical composition which is being broadcast would not be liable for infringement, for, even if this be deemed a performance, it is neither public nor for profit. It was held however, that the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constituted a performance of such composition within the meaning of the Copyright Act, and thus violative of the owner’s rights.
iii. In Copinger and Skone James on Copyright, Volume I, 15th Edition (2005), Sweet & Maxwell (Para 7-96A), it has been observed that:
“… It has been decided by the Exchequer Court of Canada [Canadian Admiral Corporation Ltd. V/s Rediffusion Inc, (1954 Ex. CR 382)] that the performance of material by way of television in private homes, the material having been received by subscribers to a cable service, did not amount to public performance on the ground that the character of the audience was purely domestic and even a large number of ‘private’ performances could not be in public. It might therefore be argued that the character of the audience in separate hotel bedrooms is similar, each hotel bedroom being the occupant’s ‘home’ for the night, and each performance being ‘private’… In a decision… the issue arose whether the watching of television sets by the occupants of motel rooms, to which films were relayed by means of a video cassette recorder and cables, amounted to public performance. The plaintiff’s case was argued primarily on the basis that presentation of a film in a single room, even to only one person, amounted to public performance. It was held that such presentation was in fact public since the character of the audience was as guests of the motel and not as individuals in a private or domestic situation. In that capacity the guests were paying for the accommodation and the benefits which went with it. It is thought that for the same reasons the performance of works to inmates of prisons is in public…” (emphasis supplied)
iv. Section 2 (ff) of the Copyright Act, 1957 defines “communication to the public” as communication to the public in whatever manner, including communication through satellite.
v. Under Section 51 (a) (ii) of the Copyright Act, 1957, infringement occurs, if anyone permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. The exception to this definition of infringement of copyright is contained in Section 52 of the Copyright Act, 1957.
vi. Under Section 52 (1) (k) of the Copyright Act, 1957, the causing of a recording to be heard in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein, is not deemed to be an infringement.
vii. Question of proportion in the case of a copyright infringement action:
In Para 20 it was held that:
“… 20. … As held in Hubbard V/s Vosper, 1972 (1) All ER 1072 the Court must consider the question of proportions, in the case of a copyright infringement action. Therefore, for instance, the placing of a common television in a motel reception, accessible to all but without keeping a television set, in each hotel room, or placing such a set in a grocery shop for the recreation of the owner, or a wayside restaurant, may not fall within the mischief of the definition of infringement. Proportion in this context, would necessarily imply the nature of the activity of the establishment and the integral connection the infringement complained of has with it. Likewise, the use of television or radio in a city bus can be contrasted with such use in an aircraft.
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… 22. The plaintiff has been able to show that the defendants are using cable connection and extending facilities of television to their patrons in the hotel rooms, for payments are received. In this view, prima facie, the content of songs and videos broadcast are communications to the public.”
Excursus:
i. The Copyright Act, 1957 covers a broadcast and defines it as communication of such work to the public either by wireless diffusion or by wire.
ii. In India, the permission by the author to perform in public includes a right to broadcast. The Copyright Act, 1957 protects broadcasts and defines them as “communication to the public”.
iii. Whether a communication is to the public or whether it is a private communication depends essentially on the persons receiving the communication. If they can be characterized as the public or a portion of the public, the communication is to the public.
iv. The placing of a common television in a motel reception, accessible to all but without keeping a television set, in each hotel room, or placing such a set in a grocery shop for the recreation of the owner, or a wayside restaurant, does not fall within the mischief of Section 51 of the Copyright Act, 1957.
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