Scope of Compulsory Licenses under Copyright Act Expanded to Cover Online Streaming

Section 31D of the Indian Copyright Act, 1957, as amended by the Copyright (Amendment) Act, 2012, addresses compulsory licensing of copyrighted works, specifically addressing broadcasting on radio or television. Such previously broadcast work may be broadcast after appealing to the Copyright Board, paying to the owner of the copyright royalties in the manner and rate fixed by the Board. No alteration that is not strictly necessary for the broadcast may be made to the literary or musical work so licensed.

Vide an office memorandum dated 5th September 2016, the Copyright Section of the Department of Industrial Policy and Promotion (DIPP) (under the aegis of the Government of India’s Ministry of Commerce and Industry) announced thus: ‘the words “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 organizations only, but cover internet broadcasting organizations also.’

This office memorandum effectively will bring online streaming companies under the ambit of Section 31D of the Copyright Act. While earlier, rights holders were able to decide royalty rates on music and other content, now, the presence of the Copyright Board within the transaction has provided a steadying hand on such rates. This move is likely to benefit streaming websites like Saavn and Gaana, reports Mint, as well as the performers of the work. Companies owning the rights may now be bound to share the revenues from such royalties with performers and artistes.

Under Section 31D(5), the names of the authors and principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast, ensuring recognition to artistes.

However, doubts remain over whether the DIPP, as the nodal agency for all intellectual property matters, has the authority to extend the ambit of the section to include online broadcasting, or “streaming”.

Section 2(ff) defines “communication to the public as “making any work 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 copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”, with an explanation stating that for the purpose of 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”.

However, Section 31D(3) of the 2012 act states that, “the rates of royalty for radio broadcasting shall he different from television broadcasting and the Copyright Board shall fix separate rates for radio broadcasting and television broadcasting”. It is specific in its scope.

Regardless, the move will benefit content broadcasters, as well as consumers. Such a move is going to help put online streaming services and music rights holders on a more even keel in terms of negotiation of royalties. Further, more content will likely be available online since rights holders will, in theory, be unable to refuse the license. For consumers of online content, rapidly increasing in number, and slowly moving away from more traditional modes of content delivery such as television and radio, this move could prove to be a boon.