This piece has been authored by Hriti Parekh, 5th year B.A.LLB student at HNLU, Raipur

Abstract

The growth of IPR and technical advancement are connected. Cyberspaces have dramatically grown over the past ten years as a result of two interdependent forces: the development of multimedia technology and the exploitation of a sizable worldwide market. Because of legal changes as well as technical developments—which some people refer to as convergence—the distinction between traditional broadcasting and new media has grown more hazy. Possibly the most well-known example of this phenomenon is the Internet. In the light of the same, this article discusses Section 31-D of the Copyright Act, 1957, Draft Amendment of 2019 to “Rule 29 of the Copyright Rules” which is in furtherance of Section 31-D and its constitutionality as well as addresses an important question pertaining to “Should the Internet Broadcasters be included under Section 31-D of the parent act?”

1. Background

The main goal of copyright laws is to prevent others from appropriating the results of an individual’s labour and skill. When we study the definition of IPR, it is seen as a “bundle of exclusive rights.” These exclusive characteristics are a key factor in obtaining IPR. The 2012 amendment made substantial modifications to the copyright law, one of which is the inclusion of licencing (statutory/compulsory) as an exemption to this aspect of exclusivity.

The Section 31D issue results from the need to include internet broadcasters and use of copyrighted content when communicating with the public through the Internet. In light of the Tips v. Wynk case and the draft amendment rules for 2019, the first query that arises in our minds is that-  “Is there a necessity for inclusion of internet broadcasters?” This and other related questions shall be addressed further in this this article.

Note- The suggested changes to the 2019 draft guidelines for online broadcasting were not included in the Copyright Amendment Act of 2021, which is perhaps for the best considering that it may be necessary to revise the Act first before the Copyright Rules are altered. Thus, the internet broadcasting interpretational problem persists and hence the author would be discussing the draft amendment rules of 2019, in that regard.

2. A Primer on Section 31-D 

In accordance with the 2012 amendments, Section 31C was added to provide “statutory licences for cover editions”, and Section 31D was added to allow for a “statutory licence to broadcast sound recordings, literary works, and musical works”. Any media platform that wished to make a written work available to the public via “a television or radio broadcast system, as well as any recorded music or radio output and sound recording”, may do so by notifying the authors beforehand.

Additionally, the Copyright Rules (Rule 29-31) make it clear how to get a statutory licence. However, It solely referred to broadcasting on radio and television. While, WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty are frequently referred to as internet agreements, Section 31D had been adopted in accordance with the Berne Convention (Articles 11 and 13), the Rome Convention (Articles 15 and 10), and Article 9 (1) of the TRIPs Agreement. The intention was to close the gaps in the current norms and advance with the technological advancements taken into consideration during the 2012 Amendment. The issues of developing new technologies, and especially the distribution of such products across digital networks like the Internet, are covered in both the WCT and the WPPT.

India joined the treaty in 2018. The pact gave the original owners more authority after technological advancement. For the first time, it recognised performers’ moral rights and granted exclusive economic rights. Both treaties gave creators and right owners the ability to successfully secure their work and safeguard information by using  mechanisms such as Technological Protection Measures (TPMs) and Right Management of Knowledge Information (RMI). In addition to this matter, it is crucial to remember that Section 31 D’s goal was to create a pathway for the expansion of the broadcasting sector while also taking the interests of those who own intellectual property into consideration. But prior to this clause, the only thing that gave the owner of the copyright additional negotiating leverage was the principle of voluntary licencing.

Additionally, Section 31D (3) makes it clear that separate rates are determined for radio and television transmissions. No other kind of broadcasting was foreseen, according to Section 31 of the Copyright Rules, 2013 Rules. Internet television was purposefully left out of the contentious decision and the Rajya Sabha Parliamentary Standing Committee only received queries on “radio” and “television,” which expressly stated that radio and television broadcasts fall under the purview of Section 31-D.

According to judicial interpretation of section 31D, internet or online broadcasters were not covered by its provisions. The Bombay High Court held that Section 31D must be interpreted narrowly with respect to the reports of the “Rajya Sabha Standing Committee and the Statement of Objects and Reasons of the Copyright (Amendment) Act, 2012, which can be seen in the cases of Tips Industries v. Wynk Musicand Warner/Chappell Music Limited v. Spotify AB”. Internet broadcasters were specifically left out of the scope of section 31D by the legislature, according to Justice Kathawalla in Tips Industries.

However, The Ministry of Commerce and Industry presented the Copyright Draft Amendment Regulations, 2019 in May 2019 to alter the “Copyright Rules, 2013”, in accordance with its authority granted by Section 78 of the Copyright Act, 1957. These Amendment Rules were being suggested primarily to ensure that the Act complies with current technical advancements and to bring it into accordance with other pertinent laws. 

It had been suggested to amend “Rule 29, Chapter VIII of the Principal Rules”, which is in furtherance of section 31D of the Act and is headed “Statutory Licence for Broadcasting of Literary and Musical Works and Sound Recordings” (Notice for communication to the public of written works, musical compositions, and sound recordings is covered by Rule 29). This amendment substitutes the words “by way of radio broadcast or television broadcast”, with the words “for each mode of broadcast” implying that “internet broadcasting would also fall under these rules.”

3. Proposed Amendment as per the Draft Amendment Rules of 2019 – Constitutionally Sound?

The Madras High Court maintained Section 31D’s constitutional legality in“South Indian Music Companies v. Union of India concluding that the limitations are inappropriate if “Section 31D” is contested in breach of “Article 19 (1) (g)”. The Court, however, decided that this freedom is subject to the implied limitations established explicitly in “Articles 19 (2) to 19 (6)” of the Constitution.

It is clear from defending constitutional legitimacy that there is no purpose to include Internet broadcasters since balance is required. As was already indicated, Sections 31 and 31D provide a framework for handling the public interest in regard to the private interest. The protection of the owner’s interests has evolved into a subject of public policy.

However, It should be remembered that the Bombay High Court ruled unequivocally in Tips Industries that “Section 31D and its sub-part 3 only apply to broadcasters of television and radio. Additionally, it was decided that the clause should be carefully read because it is expropriatory in character. The proposed modification to Rule 29 is unconstitutional since it contradicts the Bombay High Court’s reading of section 31D.” “

Although it is now evident that “the legislature wants to include online broadcasters under section 31D of the Act, a change to the parent Act (Section 31D of the Copyright Act, 1957) is necessary in order to carry out the proposed amendment.””

4. Should Internet Broadcasters be included under Section 31D? – Author’s Analysis and Concluding Note.”

There is a lot of discussion about whether or not section 31D should extend to internet broadcasters.

• First, those opposed to bringing internet broadcasters under “Section 31D of the Act” contend that the definition of “communication to the public” in that section and “section 2(ff) of the Act” include the owner’s power to determine the time and location of such communication. Internet broadcasters, on the other hand, let consumers pick the time and location. Therefore, one of the defences is that online broadcasting does not constitute public communication if user discretion is allowed.

• Second, the phrase “any other broadcaster” is quite vague and general. The word must be defined by the legislature, and it must establish criteria for who will be included in this definition. The Telecom Regulatory Authority of India does not yet regulate over-the-top (OTT) service providers, therefore it would be fascinating to see if this definition includes them.

• The other side argues that it is unreasonable to exclude internet broadcasters from section 31D because both radio and television broadcasters are covered by it. They rely on the Madras High Court’s decision in “South Indian Music Companies Association v. Union of India (2016) and the Supreme Court’s decision in Entertainment Network (India) Limited v. Super Cassette Industries Limited,” which state that  –

“Section 31D offers a mechanism to deal with the public interest in relation to private interests. The plan of section 31D preserves public interest by enabling the broadcasting of such work while safeguarding the owner’s private interests by recognising his contributions in the form of royalties.”

Conclusion

The author concludes that the reasons for including internet and online broadcasters within “Section 31D of the Act” are outweighed by the deficiencies. By modifying the Act and the Rules, the legislature must first fix the constitutional flaw. It must also define the term “any other broadcasters” and establish the guidelines that apply to them. However, the legitimacy of “Section 31D of the Copyright Act, 1957, which is being contested and is currently before the Supreme Court and Calcutta High Court, as well as the question of whether TRAI has the authority to regulate OTT service providers, are both vulnerable to revision.”

Therefore, the fact that the suggested changes to the 2019 draft guidelines for online broadcasting were not included in the Copyright Amendment Act of 2021,  was for the best considering that it may be necessary to revise the Act first before the Copyright Rules are altered.