Online Broadcasting now within the scope of Statutory Licensing under the Indian Copyright Law
In a recent development, the Department of Industrial Policy and Promotion (DIPP), Government of India issued a memorandum clarifying the ambiguity over the term ‘Broadcasting Organisation’ as mentioned in section 31D of the Indian Copyright Act.
Section 31D of the Copyright Act deals with Statutory Licensing and subjects any ‘Broadcasting Organisation’ to the provisions of the same.
Section 31D states “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.”Further to which clause 3 of Section 31D 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.”
Clause 3 of Section 31D only expressly refers to television and radio as the broadcasting organisations and mentions the royalties to be imposed for television and radio to be different. Taking into account only ‘radio’ and ‘television’ further caused the ambiguity with respect to the term ‘Any Broadcasting Organisation’. The question as to the scope of ‘Any Broadcasting Organisation’ was whether the same was limited to ‘Television’ and ‘Radio’ or ‘Internet Broadcasting’ could be included under the ambit of the same.
As per the memorandum issued by DIPP (which can be found http://dipp.nic.in/English/acts_rules/orders/OM_CopyrightAct_05September2016.pdf ), the term “Internet Broadcasting” is included in “Communication to the public”as defined in section 2(ff) of the Copyright Act. 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 also cover internet broadcasting organisations.”
Implications of the Memorandum
Earlier Internet Broadcasters could voluntarily enter into agreements with distributors. Now they will be covered under the ambit of statutory licensing as per section 31D of the Copyright Act. Subsequent to the memorandum, prior intimation of broadcasting would be a requirement to be complied with. The rates of royalties would now be fixed by the copyright board. The memorandum curbs the contractual freedom of music distributors and on the other hand entitles internet broadcasters for a statutory license where the broadcaster is not interested.
The notification takes into account the importance of internet as a medium of broadcasting but still has to withstand any possible challenges of the court.