A licence expired, renewal talks collapsed, and the streaming service simply kept the catalogue — arguing the Copyright Act gave it a licence whether the label agreed or not. The Bombay High Court rejected that argument comprehensively, and the judgment still governs music streaming in India.
Background
The plaintiffs, a reputed music label owning copyright in thousands of songs, had licensed their catalogue to the defendants, a music streaming service that also allowed subscribers to download songs.
The licence expired in 2016. During renewal negotiations the talks broke down, and the plaintiffs issued a cease and desist notice requiring removal of their catalogue.
The defendants refused, invoking statutory licensing under Section 31D and claiming to be a “broadcasting organisation” desirous of communicating sound recordings to the public — relying on a Central Government circular stating that internet broadcasters could be so considered.
The plaintiffs sued for infringement before the Bombay High Court.
What Justice Kathawalla decided
1. Infringement, and no fair use. The defendants were infringing. Permitting subscribers to download songs for a fee amounted to facilitating electronic copies of the copyrighted works, so the defendants were not operating without a profit motive. Fair use failed because their use was as a commercial competitor to the plaintiffs’ business. The storage of songs on subscribers’ devices was neither transient nor incidental — the download model was a core part of the business, taking it outside Section 31D entirely.
2. Section 31D excludes internet broadcasting. Examining the legislative history of the Copyright Amendment Act, 2012 and the Copyright Rules, 2013, the court held that Section 31D creates an exemption from copyright and must be strictly interpreted. The legislature was aware of the internet, downloading and streaming, and had made a conscious decision to exclude such services. The provisions apply to radio and television broadcasts only.
3. Rates must be fixed first. The IPAB had jurisdiction to fix rates only for television and radio, putting internet broadcasting outside its authority. And the Rules required the IPAB to fix applicable royalty rates before a licence could issue — so even had internet broadcasters been eligible, the defendants could not invoke a statutory licence without the necessary rate determination.
4. The government circular was not binding. It was contrary to the legislative mandate of the Copyright Act and to India’s representations to the WIPO General Assembly, and had no statutory flavour. The court was accordingly not bound by it, and it could not be applied.
This is the point with the widest application. An executive clarification cannot extend a statutory exception beyond the words Parliament used, however clearly it states the government’s view.
5. Injunction granted. The plaintiffs made out a strong prima facie case of irreparable revenue loss, and the inapplicability of Section 31D meant the defendants had no licence to shelter behind.
Why it mattered — and what was left open
The judgment was a substantial relief to labels and publishers, who had faced repeated disputes with streaming providers over the ambiguity in Section 31D.
But the court’s reasoning that the legislature had considered the advent of technology in framing the 2012 amendment sits somewhat awkwardly with the facts. The entertainment landscape in 2012 was very different — streaming was far less common than it became — and several questions were left untouched:
- Non-interactive broadcasts. Some services stream without letting the user choose tracks, functioning effectively as internet radio. Other jurisdictions extend statutory licences to such services; whether India would was left open.
- Caching. Whether caching streamed music constitutes making an electronic copy was not addressed.
Where it stands. Tips v. Wynk remains the governing authority. Indian streaming runs on negotiated commercial licences, not statutory ones. The IPAB was abolished in 2021, so the rate-fixing function referred to in the judgment now sits with the High Courts — and the questions about non-interactive streaming and caching remain unresolved.
The takeaways
- Section 31D does not cover internet streaming — exemptions are read strictly.
- A download business is not incidental — it defeats the statutory licence outright.
- Rates must be fixed before a licence can be invoked.
- A government circular cannot extend a statutory exception.
Frequently asked questions
Can a streaming service claim a statutory licence in India? No — the Bombay High Court held that Section 31D does not extend to internet broadcasting, and that its provisions apply to radio and television only.
Why did the download business matter? Because permitting paid downloads amounted to facilitating electronic copies as a core part of the business, which is neither transient nor incidental and defeats any claim under Section 31D.
Was the government circular on internet broadcasting binding? No — the court held it was contrary to the legislative mandate, inconsistent with India’s WIPO representations, and lacked statutory force.
How is music licensed for streaming in India now? Through negotiated commercial licences with rights holders, since the statutory licence route is unavailable.
Useful official resources
- The Copyright Act, 1957
- Bombay High Court