Department of Industrial Policy and Promotion ("DIPP")
recently issued an office memorandum pursuant to receiving
representations from various stakeholders for guidance with respect
to the applicability of the provisions of Section 31D of the
Copyright Act, 1957 (the "Act") to internet broadcasting
organizations (as opposed to only the radio and television
Vide the Copyright Amendment Act, 2012, (the "Amendment
Act"), the Ministry of Law and Justice inter alia
inserted Section 31D in the Act making it mandatory for the
broadcasting organizations desirous of communicating to the
public by way of broadcast or by way of performance of a
literary or musical work and sound recording, which has already
been published, to do so subject to undertaking certain
compliances. One of such compliances require the broadcasters to
give prior notice, in a prescribed manner, of its intention to
broadcast the work stating the duration and territorial coverage of
the broadcast, and also pay to the owner of rights in each work
royalties in the manner and at the rate fixed by the Copyright
The term 'communication to public' was amended by the
aforesaid Amendment Act [section 2(ff)] to mean making "of
any work or performance available for being seen or heard or
otherwise enjoyed by the public directly or by and means of display
or diffusion other than by issuing physical copies of it, whether
simultaneously or at places and times chosen individually,
regardless of whether any member of the public actually sees, hears
or otherwise enjoys the work or performance so made
The explanation to the aforesaid section clarified that
communication through satellite or cable or any other means of
simultaneous communication to more means of simultaneous
communication to more than one household or place of residence
including residential rooms of any hotel or hostel shall be deemed
to be communication to the public.
Interestingly, the popular understanding amongst the
stakeholders was that the above provisions applied to the TV
channels and radio channels only.
Pursuant to the office memorandum dated September 5, 2016, DIPP
clarified that words "any broadcasting organization desirous
of communicating to public....." may not be restrictively
interpreted to be covering only radio and television broadcasting
as definition of "broadcast" read with
"communication to 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 organizations only, but cover internet
broadcasting organizations also1.
The above liberal interpretation by DIPP brings within its ambit
various streaming websites such as Gaana, Saavn etc. who could now
stream the work of any artist on their portals subject to payment
of royalty as decided by the Copyright Board. This also disables
the copyright holders such as music companies from restricting the
license to broadcast the work to any one competing online
broadcaster. The artists would however benefit from the sharing of
royalty revenue. It also requires online broadcasters of live
videos such as facebook live, periscope, youtube live videos etc.
to pay royalty to copyright owners for broadcasting the work.
While, this could be a cause of concern for some of the online
streaming companies (who were otherwise avoiding payment of
royalty) and the music copyright owners (who sometimes demanded
substantial royalty for streaming, which would now be regulated),
it is surely an interesting development for artists who have been
lobbying for protection of their rights for sharing a part of the
royalty for long.
We have been receiving requests from our Pharma clients/readers of the blog for the analysis of the decision/ facts that led to rejection of Lumacaftor (Polymorph) patent application in India since last year.
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