India: Vol IX Issue XOctober 16,

Last Updated: 2 December 2016
Article by Himanshu Sharma and Martand Nemana

Most Read Contributor in India, July 2017

INTRODUCTION

Copyright, a legal doctrine with a long tradition, involves legal protection for works that have been published, for which there is clear authorship, and the economic value of which does not recede over short periods of time. The changing times have raised alarming concerns in the legal arena to stay abreast with the developments and device out reforms with a vision of sustainable future. Although the rights in a copyrighted work under the Indian Copyright Act, 1957 are exclusive in nature and cannot be used by any other person for commercial use without the permission of the owner. On the other hand the owner need to use or lack of use of the copyrighted work, cannot be in such a way that it will lead to create a monopoly.

A copyrighted work which has been published or performed in public and which is withheld from public can be allowed to be compulsory licensed to an interested party after going through the process provided under the Copyright Act, 1957. The statutory licensing can be provided in different works and for different purpose such as for the benefit of disables, for cover versions, for broadcasting. The broadcasting of literary, musical and sound recording in the age of internet has sources which were earlier not thought of and same has created a void among the literature and practicality of the Act. The internet as a medium of communication has progressed a long way in last decade or so and hence the use of internet from being a medium of communication to source of entertainment has also led to create a void in the practicality of provision related to the statutory licensing for broadcasting.

Statutory licensing for broadcasting

Entertainment as a major industry has turned out into a multi-million-dollar industry; which operates on an "end-user" based model where there is a very strict adherence to the time period where the original creator of the content has to encase and embark upon the complete potential of the content in order to generate revenue.

Suspense and curiosity play a major role in garnering the fan following and creating a public base and this where the broadcasting media takes advantage of the situation. Right from the intimation of the content till the official launch where it is made available to the public, either in full or in pieces, the same is broadcasted on conventional methods of promotion such as the Newsprint, Radio and Television. However, with the technology boom, internet broadcasting and live streaming which have been garnering much attention and public interest, the void of regulations and reforms to exercise control over the internet rights has been an alarming concern which has raised out many questions over the legal validity of the entire architecture.

The emergence of Internet has led to whole new set of problems for the statutory licensing for broadcasting of literary and musical works and sound recording. The emergence of internet as a source of broadcasting and entertainment has influenced the actions of DIPP under the Ministry of Commerce and Industry, Govt. of India, to issue an Office Memorandum, dated 05th September, 2016, in response to the representations received on behalf of the stakeholders, seeking justification regarding the legal status of the internet broadcast, and whether it could be brought under the purview of Section 31D of the Copyrights Act, 1957 in India.

The said Office Memorandum has elaborated the provisions and provided its version of interpretation of the said Section 31D with regards to the fate of the internet broadcasting and its related rights, which still are subject to approval from the competent authority.

THE VOID: ENTAILING REFORMS.

The Copyright works withheld from the public can be broadcasted by applying for statutory licensing under section 31D of Copyright Act, 1957 but the provision lacks the practicality in reference to the current set of broadcasters. The contemporary period of broadcasting has sources which were earlier not thought of and same has created a void among the literature and practicality of the Act. The internet as a medium of communication has progressed a long way in last decade or so and hence the use of internet from being a medium of communication to source of entertainment has also led to create a void in the practicality of provision related to the broadcasting.

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, 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."

Section 31D of the Indian Copyright Act, 1957 enables the broadcasters to obtain statutory licenses to facilitate access of the created work by the broadcasting organizations. It also has been laid down succinctly that while broadcasting any audio or sound recordings, complete mention of the artist and due credit and recognition should be given during the broadcast. It also has been mentioned that no alteration shall be allowed without prior permission would be allowed during the broadcasting. It should be taken into consideration that the tracks or sound recordings can be shortened as per the requirements or required time frame but no new addition or alteration shall be allowed. It also has been laid down that the broadcasting organization shall maintain records of the broadcast, books of account and render to the owner such records and books of account.

The importance of developing the framework is to lay down guidelines to create a benchmark to assess the liability of the broadcaster through medium of internet and the copyright vested in the work used for the same. Section 31D of the Indian Copyright Act, 1957 has subtly discussed the process of operation when a statutory licensing in a work is applied by a broadcasting organization.

Conclusion:

The volume of the usage on the internet has clearly surpassed the total reach of conventional methods combined together, calling for immediate legal reforms to efficiently manage and control their activities. While introducing technological protection measures, the law ensures that fair use survives in the digital era by providing special fair use provisions. The proposed changes have resulted in the Copyright Act being more suitable to contemporary situation and will help in facilitating the access to works to the modern mediums along with the old mediums.

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