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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 publicas 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.

Publishers lose copyright case against Delhi University’s Photocopy shop

In an important judgment certain to have a far reaching impact on Copyright Law in India, the Delhi High Court yesterday ruled in favor of photocopiers and students by holding that photocopying of textbooks for educational needs of students does not amount to copyright infringement.

This judgment means that the Rameshwari Photocopy Shop (a small photocopy shop situated in the North Campus of the Delhi University) has managed to successfully stand against the might of globally renowned publishers (including Oxford University Press, Cambridge University Press, Taylor & Francis) which sued it for copyright infringement alleging that bulk photocopying of textbooks by students was causing them financial losses students had stopped buying textbooks, preferring to simply purchase or copy relevant chapters at a meagre amount.

The stand of the photocopy shop and the Delhi University (which backed this shop throughout) was that photocopying enabled the students to have easy and affordable access to education material and was thus in the larger interest of the society.

This gave rise to the following important question of law which the Court had to settle –

Whether photocopy of books by students and academicians would qualify as a fair dealing under the Copyright Act, 1957 if the same was beyond affordability for the academia.

The High Court opined on the scope of “educational exception” under “fair dealing” as laid down under Section 52(1) of the Copyright Act, 1957.  Some of the lines of arguments taken by the Plaintiffs, amongst others, were to the effect that “publishers are not charity houses” and “why should they give out their work for free”.

The Hon’ble Judge held that the alleged infringement was covered under the exception of fair dealing as per section 52(1) of the Copyright Act, 1957 hence there was no infringement on part of the defendants. The Judge further quoted that “Copyright is not a divine right”, stating that Delhi University or any of its agents had the right to photocopy whether inside or outside the campus, if and when the same is for educational use and not commercial use.

This case attracted huge media attention and was greatly talked about in academic circles, colleges, publishing houses and the intellectual property law fraternity.

Irrespective of the fact that whether one agrees with this judgment or feels that the publishers have been hard done by, it is undeniable that this judgment settles an important debate under the Indian Copyright Law, at least for now, the same being liable to an appeal in the higher court.