By Lucy Rana and Meril Mathew Joy
With online platforms dominating the content circulation around the world, the ambit of protection granted to such platforms becomes an essential issue. The most controversial issue with respect to provision of Statutory Licensing is whether the term “Any broadcasting organisation” under Section 31D of the Copyright Act 1957 includes “internet broadcasting organization”. The controversy of inclusion of “internet broadcasting organization” had taken various courses, with arguments for and against, being continuously put forth for final decision.
The course took a turn with the Department of Industrial Policy & Promotion, Ministry of Commerce and Industry (Government of India) issuing an Office Memorandum dated September 05, 2016 stating that “words ‘any broadcasting organization desirous of communicating to the public..’ may not be restrictively interpreted to be covering only radio and TV broadcasting as definition of ‘broadcast’ read with ‘communication to the public’ appears to be including all kind of broadcast including internet broadcasting. Thus, the provisions of Section 31D are not restricted to radio and television broadcasting organizations only, but cover internet broadcasting organizations also.” The memorandum has been a subject of debate amongst scholars and IP professionals, on the ground of its reasoning and also on the constitutionality of the memorandum. However, as on this day, we have an answer to the above issue which was addressed by Hon’ble Bombay High Court in the landmark judgment of Tips Industries Ltd. vs. Wynk Music Ltd. & Anr., confirming that the term “Any broadcasting organisation” does not include “internet broadcasting organization” under Section 31D of the Copyright Act 1957; and that the Office Memorandum issued lacked ‘statutory flavour’ and therefore had no bearing on the issue.
Even though, answers by the Hon’ble Bombay High Court have gone on record, however, the reasoning of Hon’ble High Court is yet to be confirmed.
THE INTENTION OF LEGISLATURE
In order to come to an understanding as to the legislative intent of the Section 31D the following updates need to be reviewed.
- The 227th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright (Amendment) Bill, 2010, while defining the Clause 2: Definition of the term “Communication to the Public” as “making any work 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 copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”; here attention was drawn to few adverse impact on music industry and radio operators, wherein one of the impact was read as “no rationale in exclusion of only physical copies from the purview of ‘communication to the public’ in an age where commercialization and sale of music is taking place extensively through the medium of internet and transfer of files through computers/blue tooth;”. To this the parliamentary committee noted that the reservations of the stakeholders are unfounded. Issuing physical copies or legitimate digital downloading music or video recording by payment cannot be considered a communication to the public. Further, while discussing the provision of Statutory License, the committee focused on FM operators only.
- Lok Sabha records of Fifteenth Series, wherein the Hon’ble Minister while discussing the amendment to copyright, confined his argument to FM and Television only. While discussing the provision of Statutory Licensing, the following recommendation was made “There was a demand that broadcasters together should be subjected to a statutory licence. In other words, there will be no negotiation. The Copyright Board, as a matter of law, under the statute will actually decide on the quantum of money that will be required to be paid by the TV companies to the music companies who have bought over those rights. Therefore, there was some debate as to whether it should be limited only to radio, and TV should be kept out of it. But ultimately, we decided that TV should be included in it. So, broadcasters, in general, are now subjected to statutory rights. Therefore, the Copyright Board will alone have the jurisdiction to decide the quantum of money that will have to be paid by broadcasters to owners of music which of course, in turn, will include both the producers and the authors in different forms and they will share the profit. That is reflected in section 31 (b) of the amendment.” Further, while addressing digital environment, the main focus was shifted to Performers right, which was included vide the Copyright (Amendment) Act, 2012.
In light of the above, an alternative interpretation as against the one taken by the Hon’ble Bombay High Court can be cited. It may not be wrong to state that pursuant to the need of the hour at the time of proposing the 2012 Copyright Amendment, the Parliament only discussed the issue pertaining to FM and Television, as the only modes of “communicating to public”. The observation that the Parliament (Rajya Sabha and Lok Sabha) was aware of the technological advancement and also the reach of online streaming / internet broadcasting, then the legislature if intended to keep online streaming out of the purview of the Statutory Licensing, would have expressly mentioned / discussed the same on the floor of the Houses.
Further, the objective of Section 31D, as clear from the text, is with respect to “communicating to the public” whereas the observation of Parliamentary Standing Committee states “Issuing physical copies or legitimate digital downloading music or video recording by payment cannot be considered a communication to the public”. Through this it may also be deduced that any online streaming platform which is only intended to make any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion being devoid of the character enunciated in the observation of Parliamentary Standing Committee, such internet organizations providing streaming services may be considered as protected under Section 31D.
This is also in consonance with the observation of the Hon’ble Bombay High Court, as the rationale behind restraining the Wynk Music was “that the services rendered by the Defendants through their download and purchase features amount to commercial rental and / or sale of the Plaintiff’s copyrighted sound recordings. Since the right to commercially rent and / or sell a sound recording is a separate and distinct right as against the right to communicate the sound recording to the public, the Defendants cannot exercise a Statutory License under Section 31-D in respect of the download and purchase features provided by them.”
In view of the same, it is pertinent to refer the issue of “public interest and the access of online streaming in terms of its role as a broadcasting service” to the Parliament for a clarity on the subject matter.
APPLICATION OF SECTION 31D
The Hon’ble Bombay High Court was accurate in making the observation that “The Legislature was well aware of existence of prevalent digital technologies and trends, including the sharing, streaming and downloading of music when the Copyright (Amendment) Bill, 2010 was before it……In view thereof, along with the caution advised by the Apex Court in Super Cassettes Industries v. Music Broadcast (supra); Union of India v. Board of Control for Cricket in India and Ors. (supra); and the State of Madhya Pradesh v. Vishnu Prasad Sharma and Ors. (supra) in respect of expropriatory legislations, Section 31-D must be construed strictly in conformity with the specific intention for which it was enacted.”.
However, the observation that “The absence of express words in Section 31-D providing for a Statutory License in respect of internet streaming and / or downloading, was a conscious legislative choice. In view of the above and in the absence of an express statutory provision including internet broadcasting within the purview of Section 31-D, the scope of Section 31-D cannot be expanded to include the same. It appears from a reading of the Rajya Sabha Parliamentary Standing Committee Report, that the object of Section 31-D was to ensure that the public had access to FM radio networks. As aforesaid, the legislation enacting the subject section is relatively recent and the Legislature was aware of services such as the services offered by the Defendants. Clearly, the Legislature did not intend to include internet broadcasting within the ambit of Section 31-D.”, is the point of concern and further debate, in deciding the fate of the internet broadcasters.
The swift technological advancement has phased out the traditional methods, such as FM and Television, for accessing information especially sound recordings and video streaming. The innovation of online streaming services has rendered the existing traditional methods obsolete and antiquated, as most of the users have switched to modern platforms for their demands. In such a situation, where the majority of the public have transformed their mode of access of recordings (music, sound recording and other information) through online platforms, especially taking over the facilities provided by FMs and Televisions, it therefore appears to be fair to reconsider that the online streaming / internet broadcasting providing limited streaming, such as without download / purchase option and also limited to on demand limited access, to be considered covered under “broadcasting organizations” for the purpose of Section 31D of Copyright Act 1957.
WHAT IS A BROADCASTING ORGANISATION?
It is relevant to note that the term “broadcasting organization” is not defined under the Copyright Act 1957, however, the term “broadcast” as defined as means communication to the public—
- by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
- by wire
Therefore, it is accurate to observe that any organization providing services of broadcast as defined above will be considered as broadcasting organization. Since internet platforms broadcasting information, properly fits in the definition of broadcasting organizations, therefore it can be established that internet broadcasters / online platforms are covered under the definition of broadcasting organizations.
While addressing the issue of Section 31D, the Hon’ble Bombay High Court made the following observation “While Section 31-D(1) seems to be conducive to the Defendants’ case, suggesting that a Statutory License is available to any broadcasting organisation, it stipulates that such license is conditional upon its conformity with the remaining provisions of the section. Section 31-D(1) cannot be read in isolation.”. While making this observation, the High Court delved into analysing all the provisions of Section 31D and Rule 29 and finally concluded that the intention of legislature was restricted to FM and televisions for the purpose of section 31D. However, it is still point of concern that the use of words “Any broadcasting organisation” in Section 31D(1), words “broadcasting organisation” in Section 31D(2), Section 31D(4), Section 31D(5) and Section 31D(7), shows the intention of legislature to keep the scope of broadcasting organization open for further interpretation and not limited to FM and Television only. It is further pertinent to note that the legislature has used the terms “radio broadcasting” and “television broadcasting”, in Section 31D(3) where the provision is specific to the said traditional broadcasting, therefore if the legislatures intention was to restrict the broadcasting organization to Radio and Television, the section would have only included the terms “Radio” and “Television”, whereas the words used as “broadcasting organizations” which means that the said term is open to interpretation and also available to organizations who can offer the services limited to communication to Public.
Further, it is also contended that the observation of the Hon’ble Bombay High Court “internet broadcasting’ is not covered within the ambit of Section 31-D of the Act”, is unfounded as the term broadcasting organization includes internet broadcasters, and therefore, where interpretation of Section 31D was required, it would fair to limit the scope of internet broadcaster for the purpose of Section 31D rather than interpreting total exclusion of internet broadcasting for the purpose of Section 31D.
In light of the above review, we analyse that the application of the term ‘Broadcasting organisation’ when read under the Section 31D of the Copyright Act, 1957 recognises only 2 mediums, which are FM Radio and Television. This is because of the clarification of Section 31D provided under the Rules 29 to 31 of Copyright Rules 2013. However, on simple interpretation of the term ‘Broadcasting Organisation’, it may be stated that the said term may not be limited to just FM Radio and Television and would be able to include internet / online broadcasting platforms too within its purview.
The Hon’ble Bombay High Court, in dealing with the application of this section with respect to the Wynk Music case was correct in its reasoning so far as to not putting Wynk Music under the purview of Section 31D, however, the blanket statement dismissing online streaming / broadcasting platforms outside the purview of Section 31D limits the whole genera to a restricted interpretation done on account of a very specific segment of what online streaming / broadcasting platforms truly are.
The above review of the parameters specific to Section 31D shows that many services offered by online / internet streaming and broadcasting platforms can very well conform to the said parameters. In view of the same, one can only wait for the Hon’ble Bombay High Court to realise this distinction and pronounce the same in their conclusive findings and views that are yet to be established, as the initial order passed by the Hon’ble Court has been stayed and is currently under Appeal. (For details with respect to the Stay on the order, click here.)
 Commercial Suit IP (L) No. 114 of 2018 and Commercial Suit IP (L) No. 113 of 2018
 Vol. XXVI, Tenth Session, 2012/1934 (Saka) No. 34, Tuesday, May 22, 2012/Jyaistha 1, 1934 (Saka), dated May 22, 2012
 Available at: https://eparlib.nic.in/bitstream/123456789/758614/1/z2205_F_X.pdf
 Notice of Motion (L) No. 197 of 2018 (Order Dated 23rd April 2019)