Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

30 May 2012

The Scope of the 31D Statutory Licence wrt Television Broadcasters

The introduction of a statutory licence for the broadcast of literary and musical works, and sound recordings into the Indian Copyright Act has had an interesting history. First introduced in the Copyright (Amendment) Bill, 2010, in a manner which could have had the licence apply to either radio or television broadcasters, then amended so as only to apply to radio broadcasters, and finally explicitly introduced into the law in 2012 as a licence which could be granted to both radio television and radio broadcasters, the provision has formed the substance of a number of debates.

The version of the statutory licence which was seen in the 2010 Bill stated, in its heading, that it was a ‘Statutory licence for radio broadcasting of literary and musical works and sound recording’ although no such limitation was placed on the kind of broadcasting in the first sub-clause of the relevant provision which read: ‘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 subject to the provisions of this section.’ An attempt was made to harmonise the heading of the statutory licence with its body in 2011, with the words ‘communicating to the public by way of a broadcast' in the first sub-clause of the provision being altered to ‘communication to the public by way of a radio broadcast’.

The 2011 revisions to the provision — which, at the time, were made to the proposed Section 31D of the Copyright Act — explicitly excluded television broadcasters from the purview of the statutory licence, and unsurprisingly, television broadcasters stated their objections to being so excluded in no uncertain terms. Possibly, as a result, further revisions were made, and the 2012 Copyright (Amendment) Act reintroduced television broadcasters into the main body of the first sub-clause of the statutory licence stating: ‘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 subject to the provisions of this section.’ In addition to this, the 2012 Act also amended the heading of the licence to ‘statutory licence for broadcasting of literary and musical works and sound recording’, thus excluding the specific reference to radio broadcasters seen in the 2010 Bill, and introduced a new sub-clause into the statutory licence — Section 31D(3) — stating: ‘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.’

As such, the 2012 amendments to the Indian Copyright Act, 1957, left no doubt that the statutory licence contained in the new Section 31D would apply to both radio and television broadcasters. The question which remained was to what extent the statutory licence would actually benefit television broadcasters.

From the words used in Section 31D(1), and with the support of Section 52(1)(z), it appears clear that the licence would (in practical terms) be restricted to enabling television broadcasters to obtain synchronisation licences for music which could, for example, enable music to be synchronised with other content such as with television serials. Given that Section 31D(1) does not directly reference cinematograph films, it is unclear how the provision could possibly be interpreted to allow for the licensing of films or clips thereof by television broadcasters for broadcast via television, without resorting to considerable interpretative legerdemain involving (possibly) the definition of a ‘broadcast’ itself.

Consequently, it is unlikely that the statutory licensing mechanism envisaged by Section 31D of the Act would in fact cover any substantial quantum of content broadcast on television (apart from enabling the grant of synchronisation licences for music). In fact, with the possible exception of music synchronisation, it appears that content licensing by television broadcasters would still, by and large, be contractually determined through voluntary contracts without reference to the statutory licence now contained in Section 31D of the Copyright Act, 1957.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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