In 2016 the government announced that internet broadcasters could use the statutory licence under Section 31D — pay the prescribed royalty and stream. Music labels disagreed, and in 2019 the Bombay High Court held that a government memorandum cannot rewrite a statute.
What Section 31D provides
Section 31D of the Copyright Act, introduced by the 2012 Amendment, permits a broadcasting organisation to communicate published literary and musical works and sound recordings to the public, subject to statutory conditions — giving prior notice and paying royalties at rates fixed by the Copyright Board.
It is a compulsory mechanism: the owner cannot refuse. That is a substantial inroad into copyright, and it was enacted with radio and television in mind.
The ambiguity
The provision does not, in terms, restrict broadcasting organisations to traditional media. But Section 31D(3) specifies different royalty rates for radio and television — and only those two. From that, it was widely assumed that internet broadcasting fell outside the section, since the statute prescribed no rate for it.
The 2016 memorandum
The Department of Industrial Policy and Promotion (Copyright Section) then issued an Office Memorandum taking the opposite view: Section 31D extends to internet broadcasting.
Its reasoning was that the words “any broadcasting organisation desirous of communicating to the public” are wide enough to include internet broadcasters, read with the definition of “communication to the public” in Section 2(ff). The DIPP concluded that “broadcast” and “communication to the public” should be construed broadly to cover all types of broadcasting, not merely radio and television.
On that view, internet broadcasters would have to comply with the statutory licensing provisions — prior notice and prescribed royalties — and, correspondingly, would be entitled to stream without negotiating with rights holders.
What actually happened
The memorandum did not survive contact with the courts.
In Tips Industries Ltd. v. Wynk Music Ltd. (2019), the Bombay High Court held that Section 31D does not apply to internet streaming services. Its reasoning went to the structure of the provision and the limits of executive power:
- Section 31D is an exception to copyright and must be construed strictly, not expansively;
- the section and the rules made under it contemplate radio and television broadcasting, prescribing rates for those alone — the absence of any rate for internet transmission indicates the legislature did not intend to include it; and
- an office memorandum is not law. The DIPP’s view was not binding on the court and could not extend the scope of a statutory provision.
Wynk was accordingly not entitled to rely on a statutory licence, and its use of Tips’ repertoire without a negotiated licence was infringement.
Where things stand
The practical position is the opposite of what this post originally reported. Streaming services must negotiate licences with rights holders rather than invoking Section 31D.
The question has not gone entirely quiet — amendments to the Copyright Rules have been proposed and made with a view to addressing modes of broadcast, and the issue remains contested between labels and streaming platforms. But the governing judicial authority is Tips v. Wynk, and it has shaped the market: India’s streaming sector runs on negotiated commercial licences.
The episode is a useful reminder of a general principle. Executive clarifications do not amend statutes. A memorandum from a department may reflect the government’s view of what a provision means, and may even be persuasive — but where it seeks to extend a statutory exception beyond the words Parliament used, a court is free to say so.
Two related notes: the Copyright Board referred to in Section 31D was subsequently merged into the IPAB, and following the abolition of the IPAB in 2021, its functions passed to the Commercial Courts and High Courts.
The takeaways
- Section 31D is a statutory licence for broadcasting, introduced in 2012.
- The 2016 DIPP memorandum said it covered internet broadcasting.
- The Bombay High Court disagreed in Tips v. Wynk (2019) — exceptions are read strictly.
- Streaming requires negotiated licences in India, not a statutory one.
Frequently asked questions
Does Section 31D cover internet streaming in India? No — the Bombay High Court held in Tips Industries v. Wynk Music (2019) that statutory licensing under Section 31D does not extend to internet streaming services.
What is a statutory licence under Section 31D? A mechanism allowing a broadcasting organisation to communicate published works to the public on giving prior notice and paying prescribed royalties, without the owner’s consent.
Can a government office memorandum change the scope of a statute? No — the court held the DIPP memorandum was not binding and could not extend a statutory provision beyond its terms.
How do streaming services licence music in India? Through negotiated commercial licences with rights holders, since the statutory licence is unavailable to them.
Useful official resources
- The Copyright Act, 1957
- Copyright Office, India
- Bombay High Court