Name of author: Chaitanya Vohra – 3rd year student at RGNUL, Punjab
Name of Co-author: Harshit Bansal – 3rd year student at RGNUL, Punjab
INTRODUCTION
Statutory licence under Section 31D of the Copyright Act, 1957 aims to protect the broadcasting industry by granting them a statutory licence to broadcast literary work or musical work and sound recording. Initially, the scope of the word “Broadcasting” under Section 31D was limited to the radio and television industry considering the massive advent of these platforms at the time of introduction of Section 31D in 2012. Recognizing the rise of internet-based and satellite-based platforms, the Ministry of Commerce and Industry in 2016 clarified that online platforms fall under the category of “broadcasting organisations”.
However, subsequently the Bombay High Court in Tips Industries Ltd. v. Wynk Music Ltd. & Anr. overruled the notification issued by the Ministry of Commerce and Industry in 2016 by virtue of a withdrawal notice and clarified that Section 31D must be only restricted to radio and the television industry. In this blog, the authors critically analyze the Tips v. Wynk judgment and make a bold case for reform, arguing that the exclusion of internet-based platforms must be reconsidered to align with evolving market dynamics.
EVALUATING THE SCOPE OF SECTION 31D
For determining the purpose of Section 31D, it is very important to understand the parliamentary intent and the contextual background while introducing such provision. The profits of the radio and television industry were suffering in the early 2010s, as they were not able to generate much revenue and had to pay high costs to get the statutory licence. Songs were the only source of income for radio stations, especially small ones with little funding. Therefore, Section 31D allowed these companies to get a statutory licence under Section 31D at royalties fixed by the appellate Board, with the view to escape the web of overly restricted copyrighted content and opening up the flow of such material.
Furthermore, the Parliamentary debate about the Copyright (Amendment) Bill, 2012 kept the interpretation of the word “broadcasters” wide open which can be subject to change depending upon the circumstances which became evident from the parliamentary statement “there was some debate as to whether it should be limited only to radio, and TV should be kept out of it. But ultimately, we decided that TV should be included in it. So, broadcasters, in general, are now subjected to statutory rights.”
However, it is prudent to infer that, people have stopped listening to the radio and television platforms with the growth of internet streaming platforms in the present times. According to Nielsen Media Research data published by the Radio Advertising Bureau, in India, 71% of the people from whom the data were collected have never listened to the radio platforms, while only 4% of the people listen to the radio daily. Therefore, it becomes evident that the current Section 31D has become more or less obsolete with the rise of the internet and other streaming platforms.
Furthermore, for the purpose of interpretation of any statute, it is necessary that any statute must be interpreted liberally to understand the legislative intent and objective and uphold the Spirit of the Statute. The Court must always try to look to the context, the collocation and the subject of such words relating to such matter and interpret the meaning intended to be conveyed by the use of such words. The legislature, while drafting the Copyright, didn’t consider the technological advancements that might happen in the 21st century and left it open for the judiciary to interpret the law according to the current working of society.
THE NEED FOR JUDICIAL AND LEGISLATIVE INTERVENTION IN THE DIGITAL STREAMING ERA
The judiciary narrowed down the application of Section 31D to conventional industries with the justification that internet-based platforms do not meet the criteria of being a broadcasting organization as mentioned collectively under Section 2(dd) and Section 2(ff) of the Copyright Act. The cognizance of the legislature of the existing internet platforms at that time and the conscious effort to not mention the same at the time of passing the Copyright (Amendment) Act, 2012 does not negate the need of an appropriate regulatory framework within the internet platforms as well. The intent behind the introduction of such provision within the legal bounds was to primarily ensure public access to such restricted content.
While the degrees of restrictiveness may be argued to be different with regards to the present times, it is still prudent to enable the judicial interference within internet-based platforms with the similar intent to ensure public access and avert concentration of available content within a few brands or platforms which are effectively well-known in the market. The application of such provision shall be rare, as per the unique facts and circumstances of each case, with the view to not disrupt the forces of demand and supply, but at the same time, it should not be altogether negated.
Thus, the inclusion of internet-based platforms within the scope of Section 31D would work towards net neutrality principle, but not quite meet it, which would ensure that a balance is maintained between justified exclusive licensing agreements and the public access to the online content. In the current times, few oligopolies are responsible for the circulation of online copyrighted content, which can significantly deter the newcomers within this industry from getting access to such content. Therefore, the proposed amendment would ensure that there is always a room for the new entrants in the market, which would ultimately work towards safeguarding public access to online content.
With the similar reasoning, the US and the EU have come up with the Music Modernization Act, 2018 and the Digital Single Market Directive, 2019. These regulations focus on the flow of copyrighted content within the digital streaming platforms. To this effect, the Parliamentary Committee in its report recommended the appropriate regulatory authority to amend Section 31D so as to incorporate the digital broadcasters within its ambit and emphasized on the need to develop an even battlefield between traditional and modern broadcasting industries. In India, this aspect of market remains unaddressed due to the explicit exclusion of internet-based platforms from the purview of Section 31D.
CONCLUSION AND REMEDY
Therefore, it is very important to uphold the spirit of the law and interpret the law according to the current working with the society. The problem with the Tips v. Wynk judgment is that the judgment restricted the meaning of “Broadcasting platforms” only to the radio and television industry, making the provision obsolete. Since the internet industry encompasses a majority of the streaming platforms, and whose major source of revenue is also from making less investment in purchasing the songs, it is perennial to protect these online streaming platforms.
An amendment is therefore required to incorporate internet streaming platforms under Section 2(dd) of the Copyright Act, 1957. It is also required to design a separate royalty standard specifically to meet the standards of different internet platforms (depending on their size) , separate from the radio and television industry, to ensure fairness in the system. Hence, a scrupulous analysis of the current scenario vis-à-vis understanding the true legislative intent of the Parliament is required, in an effort to protect the online internet streaming platforms.