THE STORY
One debate in the world of Copyright Law that has not left the limelight since the time it has started is related to the 'inclusion of internet and online streaming platforms as Broadcasting Organisation under Section 31D'.
In the past few years, the public has expeditiously shifted towards the internet and online streaming platforms as the basic sources of entertainment. According to a report by an independent transaction advisory firm RBSA Advisors "India's over-the-top (OTT) streaming industry, including video and audio, has the potential to touch $15 billion over the next nine years, key drivers of the growth include the fact that India has the second-highest per capita consumption of online video in the world."1 Not to forget the whole pandemic and lockdown situation has redefined the media consumption by the public. Today to enjoy a sport or a movie or a song, the first choice are the internet platforms like YouTube, Gaana, Spotify, Disney Hotstar+, Sonyliv etc.
INCLUDING INTERNET AND ONLINE STREAMING PLATFORMS TO BROADCASTING ORGANISATIONS UNDER SECTION 31D: UNFOLDING THE DEBATE
In 2012, Section 31D was introduced by an amendment to the Copyright Act, 1957. The section talks about the statutory licence for broadcasting of literary and musical works and sound recording. It lays down the mechanism in which any broadcasting organisation 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 by paying the royalties to the copyright owner at a rate fixed by the Copyright Board. Interestingly, ever since the introduction of this provision, the question whether internet platforms would fall under the ambit of the term 'broadcasting organisation' has become a never-ending issue.
In year 2016, the Department of Industrial Policy and Promotion, vide an office memorandum, issued a clarification that internet and online streaming platforms should be covered under the definition of 'broadcasting organisations'. The clarification read as "the words 'any broadcasting organization desirous of communication to the public' may not be restrictively interpreted to be covering only radio and TV broadcasts as the definition of the term 'broadcast' read with 'communication to the public, appears to be including all kinds of broadcast including internet broadcasts".2
In 2019, in the case of Tips Industries Ltd vs Wynk Ltd. And Anr. (Commercial Suit IP (L) No. 114 of 2018 decision dated 23 April, 2019) while deciding on interim applications for an injunction the Bombay High Court held that the provisions of Section 31-D of the Copyright Act, 1957 are not applicable to internet broadcasting.
Recently, the 161st Report of the Rajya Sabha Parliamentary Standing Committee on the Review of the Intellectual Property Rights Regime in India, precisely supported the inclusion of internet and online streaming platforms to Broadcasting Organisation under Section 31D. The Report mentions that 'the Department to amend Section 31D for incorporating 'internet or digital broadcasters' under a statutory license in wake of the rise in digital or OTT platforms with the manifold increase in music as well as movie apps and its significant contribution to the economy. This would ensure a level playing field by making content accessible on similar terms to both traditional and internet broadcasters alike'.3
WHAT "BROADCASTING ORGANISATION" UNDER SECTION 31D SHOULD INCLUDE?
- Section 2(dd) defines broadcast as communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images or by wire. Further, Section 2(ff) defines communication to the public as making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether a simultaneously or at places and times chosen individually, regardless of whether any member of the public sees, hears or otherwise enjoys the work or performance so made available. For this clause, communication through satellite or cable or any other 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. Going by what the above sections state, the internet and online streaming performs the task of communicating the work to the public. However, it is pertinent to mention here that a line of distinction needs to be drawn between the interactive streaming services from the non-interactive ones. In simple words, it needs to be understood that till the time the services of the internet and online platforms are for communication and enjoyment purposes they will be covered by Section 31D. However, as soon as the content is made available for anything else like downloading or renting, the same would exceed the scope of Section 31D.
- Section 31D starts with the opening words 'any broadcasting organisations.....' which evidently reveals the intent of the legislature to widen the scope of the term 'broadcasting organisation'. Witnessing the internet revolution in the past decade, it can be safely interpreted that the legislature was well aware of the technological advancement that would take place and hence kept a wider scope for the term 'broadcasting organisation'. It would not be wrong in assuming that use of the words 'any broadcasting organisations.....' is a well-thought objective by the legislature. The recent recommendations in the 161st Report of the Rajya Sabha Parliamentary Standing Committee is proof of the same.
- The inclusion of internet and online streaming under the purview of Section 31D can also be seen as a defensive effort to curb online piracy. If the copyrighted work will be made available to the public easily and freely in a licensed manner it will definitely help in combating online piracy. Internet radio broadcasters enable the public to try out and discover new music at a lower cost, thereby removing the inducement for the consumer to engage in the illegal digital transmission of copyrighted work or the creation and distribution of illegal copies of copyrighted music.4
- It is contended that Section 31D takes away the possibility of negotiating the commercials of licensing as Copyright Board fixes the rate of royalty. However, in the case of internet and online streaming portals the services are two-fold – One where the services are just communicated to the users for enjoyment by streaming the copyrighted work; and Second where the user is allowed to download, purchase or rent the service. The first would be covered under the scope of Section 31D, but the second would be exceeding the purview of Section 31D. Also, the copyright holders can negotiate on the commercials freely in the second case. Hence, this draws the line and balances the rights of the public to have access to services on one hand and the rights of copyright owners on the other.
- Also, there seems to be no difference between 'Broadcasting via Radio' and 'Broadcasting via Internet. Both the mediums work on the same model – they have a public outreach based on which they communicate the same set of services to the public by means of wireless diffusion for free and earn via advertisements. Hence, if the radio broadcasters are included as a broadcasting organisation under Section 31D the internet broadcasters should also be included.
- The Bombay High Court in the case of Tips Industries Ltd vs Wynk Ltd. And Anr. (Commercial Suit IP (L) No. 114 of 2018 decision dated 23 April 2019) while analysing Section 31D relied heavily on the 227th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright (Amendment) Bill, 2010 and held that it is pertinent to note that despite the said position, the Legislature consciously decided not to specifically introduce the term 'internet broadcasting' in Section 31-D of the Act. But now the 161st Report of the Rajya Sabha Parliamentary Standing Committee undoubtedly clarifies the intention of the Legislature to categorically include internet and online streaming platforms being included in Section 31D as Broadcasting Organisations.
CONCLUSION
As per the recent statistics, the internet and online streaming platforms have become the dominant mode of communicating copyrighted work to the public, hence the need of the hour is to extend the interpretation of the term 'broadcasting organisation' under section 31D to include Internet Broadcasters. This will bring a level playing field across all mediums of communicating the work to the general public – be it TV, Radio or internet and online streaming platforms.
As it was put forth before the Supreme Court in Entertainment Network (India) Limited v. Super Cassette Industries Limited, section 31D provides for a mechanism by which the work can be made available to the public by broadcast. The scheme of section 31D protects the private interests of an owner by recognizing the efforts put in by him in the form of royalty and ensures public interest by allowing the broadcasting of such work.5 Including internet and online streaming platforms as Broadcasting Organisations for the purpose of Section 31D would provide a level playing field for all the mediums of broadcasting a copyrighted work. The copyright owners would get what they deserve for the work created by them in the form of fixed royalty and the public will get access to copyrighted works. This step would make the licensing model for broadcasting organisations better structured and more transparent. A successful example of the inclusion of internet streaming services and statutory licensing in the realm of copyright law is the Music Modernization Act, 2018 of the USA which efficaciously managed to strike a reasonably perfect balance between protecting the rights of music composers and music publishers to incentivize them for their creative efforts while simultaneously simplifying licensing processes for on-demand interactive streaming services, thereby ensuring proper dissemination and easy access of musical works to the public.6 While it is necessary and desirable to incentivize the creation of new music by ensuring that creator's right over their work is protected and creators obtain a monetary benefit for the use of their work, it is equally important to incentivize progress by encouraging more efficient ways of obtaining social benefit by developing more advanced methods of delivering recorded music.7
It is the right time to accept internet and online streaming platforms as a 'broadcasting organisations' under Section 31D, so that the Indian Copyright Law walks hand in hand with the digital and technological advancements being witnessed in India.
Footnotes
2. https://dpiit.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf
3. https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/13/141/161_2021_7_15.pdf
6. http://www.penacclaims.com/wp-content/uploads/2020/09/Akanksha-Dubey.pdf
7. James H. Richardson, The Spotify Paradox: How the Creation of a Compulsory License Scheme for Streaming On-Demand Music Platforms Can Save the Music Industry, 22 UCLA ENT. LAW REV.46,57 (2014)
Originally published 21 September 2021
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