December 28, 2018

India: Scope of S.31D of the Copyright Act

 

Introduction

The Copyright Amendment Act was introduced in 2012 with the primary objective of establishing a just framework for the administration of copyright and sharing revenue to protect ownership rights over copyrights. One of the most important change brought in by this amendment was through S.31D, which provided that any broadcasting organization which wants to broadcast a literary, musical or sound recording already published may do so subject to various conditions mentioned in the section. The provision also provided the Appellate Board with the power to determine the royalty rates in cases of radio broadcasting, and also provided differential royalty rates for radio and television broadcasting and required the broadcaster to broadcast the work without any substantial alteration, giving credits to the original author of the work. The scope of the section was further expanded through a DIPP memorandum dated December 2016 by which online broadcasting too was brought under the scope of this section.

Controversy surrounding the section

This section has been heavily criticized, and has been a matter of constitutional challenge on various grounds such as

  • Not allowing commercial negotiations to determine royalty rates favors broadcasters at the expense of the copyright owners

  • The copyright owners are not given the authority to negotiate terms of royalties with the broadcasters

  • The provision is violative of Art. 19 (1) (g) of the Constitution as it provides the Appellate Board the power to fix rates for radio broadcasting. This is not a reasonable restriction.

The first challenge to the provision came in the matter of South Indian Music Companies v. UoI, where an association of music companies laid a challenge to Sections 11, 12, 31 and 31D of the Copyright Act, where the Madras High Court, commenting on the constitutionality of Sections 31D upheld the validity, stating that it ‘protects public interest through private interest’. The High Court further said that the amendment is in line with India’s international obligations under the Berne Convention and the TRIPS Agreement.

While compulsory licensing under S.31D has been upheld, restrictions on royalty rates when expanded to online broadcasting would have far reaching effects, especially at this age of online streaming services. As no constitutional challenge has been raised as of yet, the area still remains a lacuna in Copyright law.

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