Hotels Must Obtain Copyright Licence for Music Played Through Cable TV in Rooms: Calcutta High Court

In a recent decision, the Calcutta High Court has addressed an important issue that straddles copyright and the hotel industry: whether the hotel is liable to obtain the proper copyright license for the use of music when it is provided to guests via cable TV in hotel rooms. The decision emphasizes the point that copyrighted music can not be used without a license — simply because it is heard on TV or cable.

The conflict was about the use of musical works by the hotel industry via TV that was provided by cable operators. The copyright owner said that hotels are “commercially using” copyrighted music without a licence. The hotel, however, argued in its favor that while guests were watching TV, that was not a case of deliberate performance or communication of the copyrighted music.

The main legislation that underlies the central aspect of copyright is the Copyright Act, 1957. The right to communicate the work to the public, subject to the statutory scheme, is included in copyright in a musical work under Section 14. The term “communication to the public” is defined in a broad way in Section 2(ff) and covers making a work available for public viewing or otherwise public enjoyment, whether directly or through display or diffusion.

The notion of “public” plays a very special role in hotel situations. A hotel might have an individual occupant of its rooms but the hotel is also a commercial business offering TV and entertainment facilities to its customers as part of the services they offer. It is important to note that the listener will only hear the music within a specific room and thus that does not necessarily mean that the copyright owner of the music is not in any way affected.

The Copyright Act outlines the situations in which copyright is infringed in Section 51. In general, infringement is where someone does an act which the Copyright Act has restricted for the copyright owner without a licence or authority. Where the hotel broadcasts copyrighted music to its guests in situations covered by the Act, therefore, it may be open to copyright infringement if a proper licence is not in place.

The Copyright Act also contains important provisions relating to broadcasting. Section 31D establishes a statutory licensing regime for the broadcasting of literary and musical works and sound recordings, under certain conditions. A licence by a cable or television company or broadcaster does not solve every individual copyright question about future commercial exploitation by another party, however. The exact rights that are involved and the type of communication needs to be investigated.

This decision is especially relevant for hotels, resorts, clubs and the like. Many times hotels have television services in their guest room packages. A music theme, or a musical composition, that is heard in a TV programme, film or advertisement, or in a music channel may be protected by more than one layer of copyright protection, such as rights in the music and lyrics, but also rights in the sound recording. The businesses need to decide if they are going to need any extra permissions or licences for their specific use.

The ruling also again draws a line between a private use and commercial use. A typical viewer doesn’t need to obtain a license from each copyright owner whose work is on television. On the other hand, a hotel is a business and it offers entertainment services to its paying clients. Therefore, in deciding whether a copyright is being exercised or communicated in a way that does require authorization, the commercial context can become relevant.

However copyright protection must not be so broad as to cover all the normal uses of a television broadcast. The definition of communication to the public in the statute and the nature of the rights exercised, any existing broadcaster or cable licences and any relevant statutory exceptions will need to be considered by the courts.

The implication of the Calcutta High Court’s judgment, therefore, is important for the hospitality industry. Hotels should negotiate with broadcasters, cable operators and cable copyright licensing organizations to ensure that the television services they pay for include all underlying copyrights.

In the end, the ruling is an affirmation of the fundamental tenet of copyright law: commercial access to copyrighted content does not equate with free commercial use of the content. The ability to secure the right copyright permissions is vital for a hotel, in order to prevent any copyright infringement claims, and for copyright owners, to enhance their capacity to defend the economic value of musical works in the event of commercial communication to paying customers.