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.

14 October 2016

The Enhanced Scope of the 31D Statutory Licence for Broadcasters

On the applicability of Section 31D to Internet broadcasters:


The scope of Section 31D of the Copyright Act, 1957, which allows broadcasters to obtain statutory licences to communicate content (in the form of literary and musical works) to the public has steadily broadened. In its early avatars, seen in the bills which proposed what ultimately became the 2012 amendment to the Copyright Act, 1957, there were times when only radio broadcasters would have been able to obtain the licences contemplated by the then-proposed Section. However, by the time the amendment act was actually passed, the words of Section 31D had changed, and there was no doubt that both television and radio broadcasters could avail of the statutory licences contemplated by the provision.

Section 31D was roughly divided into two different parts with the former, articulated in its first sub-clause, capable of being considered a substantive provision, and the latter, comprising seven sub-clauses, amenable to being considered the procedural provisions intended to support the realisation of the former.

The first sub-clause simply did not limit the kinds of broadcasting organisations which could potentially obtain statutory licences under Section 31D. It stated:

(1) 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. 

It was only in the procedural part of Section 31D that one sub-clause mentioned television and radio broadcasters alone, and arguably conveyed the impression that Section 31D was intended to benefit only those two kinds of broadcasters by stating:

(3) 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.

Apart from Section 31D(3), however, which has, in any case, only been a supporting procedural provision, none of the clauses of Section 31D have limited the range of broadcasters which could potentially obtain 31D statutory licences. Taking this into consideration, along with the definition of communication to the public in Section 2(ff) of the Copyright Act, 1957, and stakeholder representations, in September 2016, the Copyright Section of the Department of Industrial Policy and Promotion issued an office memorandum in which it explicitly clarified that the online broadcasters were included within the meaning of 'broadcasting organisations' in Section 31D(1). In relevant part, the memorandum read:

3. In view of the above, the words "any broadcasting organization 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.

The memorandum did not so much change the law as it clarified the law by explicitly allowing internet broadcasters (using a newer technology more widely used than it was at the time the 2012 amendment came into force) to avail of a provision of the copyright statute, Section 31D, which could facilitate their operations.


Excerpts from the Copyright Act, 1957:

31D. Statutory licence for broadcasting of literary and musical works and sound recording.
(1) 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.
(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.
(3) 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.
(4) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board may require the broadcasting organisation to pay an advance to the owners of rights.
(5) The names of the authors and the 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.
(6) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights.
(7) The broadcasting organisation shall— (a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and (b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed.
(8) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2012.

2. Interpretation. In this Act, unless the context otherwise requires, — (ff) “communication to the public” means 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 simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available. Explanation.—For the purposes 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;


(This post is by Nandita Saikia and was first published at IN Content Law.)

Credit

This site is supported by FrontierNxt.