Broadcasting rights and its statutory licensing under the Copyright Act is dealt under the provisions of Section 31D, inserted by virtue of the 2012 Amendment.

Section 31D allows “Any broadcasting organization desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.”

Although a prima facie reading of the provision does not limit the scope of broadcasting organisations to only television and radio, yet Clause 3 of Section 31D further states, “The rates of royalty for radio broadcasting shall be different from television broadcasting and the Copyright Board shall fix separate rates for radio broadcasting and television broadcasting.”

The specific mention of royalty rates for radio and television in the aforementioned clause was interpreted to mean that “broadcasting organisations” under Section 31D would only include television and radio. And hence the presumed notion was that internet broadcasting would not fall under the purview of Copyright Act.

However, the Department of Industrial Policy and Promotion (Copyright Section) recently issued an Office Memorandum, whereby internet broadcasting was also brought within the scope of Section 31D and hence under the purview of the Copyright Act.

According to the Memorandum, Section 31D clearly states “Any broadcasting organisation desirous of communicating to the public…” and thus internet broadcasting organisations would also be included in the same category of broadcasters as radio and television.

The Memorandum further states that internet broadcasting falls under the ambit of explanation of Section 2(ff), which defines “communication to the public”. Explanation to Section 2(ff) reads, “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.”

DIPP finally quoted that, “any broadcasting organisation 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 organisations only, but cover internet broadcasting organisations also.

 What does it mean?

So far, internet broadcasters could enter into voluntary license agreements with various distributors of literary and musical works to publish their works on the internet. However, henceforth all internet broadcasters would have to comply to the provisions of Copyright Act and they would come under the ambit of statutory licensing as per Section 31D.

Which implies that in order to communicate or broadcast any work or performance to the public, the internet broadcasters would now by obliged to give a prior notice of its intention to do so and pay to the copyright owner royalties at the rate fixed by the Copyright Board.

This Memorandum gives a wide interpretation to Section 31D and expands its scope. On one hand it curbs the contractual freedom of the music distributors and on the other entitles the interest broadcasters for a statutory license in cases where the copyright holders aren’t willing to issue licenses or are quoting oppressive terms in license agreements.

This interpretation though seems logical but is primarily a notification and we would have to see if it is challenged in Court. Given that statutory licenses have been challenged in the past, it is quite possible that this order will be challenged as well.