Internet broadcasting companies to come within the ambit of statutory licensing

This article deals with statutory licensing of copyright under the Copyright (Amendment) Act, 2012 and whether internet broadcasting organizations are covered within the said Act. As is well known, copyright exists in any original literary, dramatic, musical works, sound recordings, cinematograph films, to name of few. No registration is necessary, as such. However, a copyright registration certificate is a prima facie evidence before any Indian Court to claim ownership, at the time of any disputes, arising from such original work.

A copyright provides an exclusive right to do or authorize some of the following acts, including:

• to reproduce the work in any material form including the storing of it in any medium by electronic means;
• to issues copies of the work to the public not being copies already in circulation;
• to perform the work in public, or communicate it to the public;
• to make any cinematograph film or sound recording in respect of the work;
• to make any translation of the work;
• to make any adaptation of the work, to name a few.

The Copyright Act, 1957 was amended in 2012, inserting Section 31D by which broadcasting organizations desirous of communicating any work to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has been already published may do so, subject to the compliance requirements under the section [see end note 1]. The Department of Industrial Policy and Promotion (DIPP) has recently issued an Office Memorandum (OM) dated 5^th September, 2016 bringing all internet broadcasting organizations within the purview of Section 31D of The Copyright (Amendment) Act, 2012 [see end note 2].

The term ‘Broadcast’ is defined as per the Copyright (Amendment) Act, 2012 as the ‘communication to the public- (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast [see end note 3]'. The term ‘Broadcasting organization’ has not been defined in the Act. The term ‘communication to the public’ is defined in Section 2(ff), introduced by the Copyright (Amendment) Act, 2012 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 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’. The Copyright Act further provides that 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 [see end note 4].

The DIPP, in the OM has mentioned that 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 definition of the term ‘broadcast’ read with ‘communication to the public’, appears to be including all kinds of broadcast including internet broadcasts[see end note 5] Section 31D of the Copyright (Amendment) Act, 2012, empowers the Copyright Board to fix royalties on statutory licenses granted under this section. The Board consists of a chairman, along with two (2) members, entrusted with the job of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of Licenses in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes. It also hears cases in other miscellaneous matters instituted before it under the Copyright Act, 1957 [see end note 6].

Rule 31 provides details about the manner in which the royalties are to be determined for a statutory license. As per this rule, the Copyright Board shall on receipt of a request from any interested person for obtaining a license, give public notice of its intention to fix royalties for communication to the public of literary or musical work and sound recording under section 31D and may invite suggestions for determining the same [see end note 7]. Also, the copyright board shall:

1. publish the notice in the Official Gazette
2. re-publish the same in 2(two) daily newspapers having circulation in the major parts of the country.
3. post the notice on the website of the Copyright Office and Board [see end note 8].

Any owner of copyright or any broadcasting organization or any interested person may within thirty days from the date of publication of public notice under sub-rule(1) give suggestions with adequate evidence as to the rate of royalties to be fixed including different rates for different works and different formats [see end note 9].

Thus, all internet broadcasting organizations communicating work to the public will now attract a royalty fixed by the Board.

[The author is a Joint Partner, IPR Practice, Lakshmikumaran & Sridharan, Bangalore]

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