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(Mohit Kar is a fourth year student at Maharashtra National Law University, Aurangabad.)
Introduction After years of lobbying from media houses and international pressure, the Indian Parliament amended the Copyright Act, 1957 in 2012. It was done with the primary intent of bringing the Indian Copyright provisions up-to-date with the current technological advancements and to make it compliant with international treaties such as the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. The amendment inserted Section 31(D) which allowed radio and television broadcasters to seek a statutory license for communicating to the public any previously-published musical work, literary work or sound recording. The amendment was welcomed as providing a helping hand to the Indian radio industry that was crumbling under the strain of exorbitant license fees demanded by record labels.[1] A wave of criticism ensued when the Department of Industrial Policy and Promotion (“DIPP”) issued an office memorandum dated 05 September 2016 (“OM”) clarifying that ‘internet broadcasting’ would be considered as communication to the public under Section31 (D). Subsequently, multiple petitions were filed before different High Courts and the Hon’ble Supreme Court challenging the constitutional validity of the provision as well as the OM, especially with regards to Article 14 and Article 19(1)(g) of the Constitution of India.[2] These matters remain pending before the Supreme Court. In this post, the author will analyze the challenges to Section 31(D)to examine whether it would pass the test of constitutionality. The Challenges to Section 31 D’s Constitutionality The primary constitutional issue with regards to this section pertains to its violation of Article 14 of the Constitution. It has been argued that the provision negates equality by granting statutory licensing only to literary works, musical works and sound recordings but not other forms of copyrighted works such as dramatic works and cinematographic films.[3] This contention seems vague because the amendment was made as an enabling provision to allow the general public access to sound recordings. The primary intent of introducing a statutory licensing regime to the musical and sound recordings was to curb the high licensing fees that were being demanded by owners of sound recordings/musical works and enable easier and faster access to them (given the large of number of sound recordings that are produced in India) for the broadcasters as well as the general public. A possible explanation for the provision not being extended to dramatic and cinematographic works could be that the number of cinematographic movies that are produced are significantly lesser in number compared to sound recordings/musical works. Secondly, it is preferable if each cinematographic film is licensed individually keeping in mind the production cost so that it is fair to producers. The status quo enables them to be compensated fairly. Extending statutory licensing onto movies would have been an unnecessary change to a system that is working well. Further, Section 31D does not intend to give any special rights to broadcasters such as free, unlimited access to copyrighted literary works, musical works sound recordings. Rather, it enables the copyrighted literary works, musical works and sound recordings to be broadcasted to a larger audience after the payment of a fixed price to copyright societies. In this way the provision intends to strike a balance between public interest and private interest and there is no negation of equality as other forms of copyrighted works can be broadcast as per the usual procedure of licensing under Section 30 of the Copyright Act. Thus, the provision would pass the test of arbitrariness laid down by the Supreme Court of India in Ajay Hasia. Accordingly, Section 31D does not appear to violate any tenets of Article 14. The debate around Section 31D arose again after the OM was issued by the DIPP. The use of the word “any broadcasters” in Section 31D by the Legislature clarifies its intent to restrict the classes of broadcasters to radio and television organizations rather than modes of broadcast such as internet. This can be further pointed by going through the intricacies of Section 31D (3), and Rules 29(3), 29(4)(b), 29(4)(g), 29(4)(h) of the Copyright Rules, 1958 wherein there is an explicit mention of radio and television broadcasting with no mention of internet broadcasting. It is evident that the OM was not well thought out by the DIPP. The Bombay High Court struck it down in Tips Industries Ltd v Wynk Ltd on the ground that it lacked ‘statutory flavour’. The Court reasoned that the absence of express words in Section 31-D providing for a Statutory License in respect of internet streaming and/or downloading, was a conscious legislative decision and should be adhered to. The other prominent constitutional issue pertains to the rights of the owners of copyright under Article 19(1)(g) of the Constitution. It guarantees the right to practice any profession or carry out any occupation, trade, or business, subject to reasonable restrictions laid down in Article 19(2) and further expanded upon in Article 19(6). In the present scenario, the legislative intent of Section 31(D) was to support the radio industry in India. The radio industry was going through a tough phase because it had no access to licensed works at reasonable rates.[4] The broadcasters were also lacking sufficient engagement to rake in the lucrative sponsorships and advertisements. Now, with the help of this provision the radio broadcasters could get access to protected works by paying a fair amount of compensation which would be fixed by the Intellectual Property Appellate Board. Thus, the provision would pass the constitutional test of “reasonable restriction” specifically with respect to freedom of trade as laid down by the Supreme Court in Laxmi Khandsari v State of UP, since it was enacted keeping in mind public policy and the rights of public-at-large at the time. Conclusion The principal goal of copyright law is to strike a balance between the interests of the copyright owner and the general public who get to experience it. It aims to promote creativity and incentivize authorship by giving due compensation to the authors in order to maximize public engagement and benefits. The other stakeholders in the industry play a secondary role. But with the advent of commercialization of intellectual property, copyright holders such as record labels have come to the forefront of the market. The labels try to exert their copyrights in a way that is pernicious to the interests of both the authors and the public at large. But provisions like statutory licensing aim to address this issue by acting as a deterrent to the monopoly created by the record labels. Their aim is to set fair and equitable prices for licenses which would act in favor of not only the broadcasting organizations but also the authors and the public-at-large. Hence, the statute should be held constitutionally valid to act as a precedent for future amendments to the Indian copyright law that attempt to strike a balance between the rights accorded to owners of the copyright and the broadcasters. - Mohit Kar [1]Zakir Thomas, Overview of Changes to the Indian Copyright Law, 17 Journal of Intellectual Property Rights 329 (2012). [2]M/s Lahari Recording Company v Union of India (W.P. (C) 667/2018); Eskay Video Pvt. Ltd. v Union of India (W.P. 14979 (W)/2016); South Indian Music Companies vs Union Of India (W.P. 6604 (M)/2015). [3]Super Cassettes Industries Ltd. and Anr. v Union of India (W.P (C) 2316/2013) [4] NDA Hotline, Fm Radio - Royalties Reduced to Global Standards, NISITH DESAI ASSOCIATES, (Apr. 17 2020), http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/fm-radio-ndash-royalties-reduced-to-globalstandards.html?no_cache=1&cHash=1701dc615585e57659b0064315012d19.
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