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Bombay HC upholds exclusion of internet broadcasting from copyright statutory licenses provisions

An oral judgement disposed a plea filed by Wynk Music arguing that copyright statutory license should apply broadly to all forms of dissemination, including internet-based broadcasting.

The Bombay High Court affirmed a 2019 decision that statutory licenses under the Copyright Act of India are restricted to traditional, non-internet-based broadcasting and disposed an appeal by Wynk Music Ltd challenging the same. An oral judgement by Justice G S Patel, covered at length by Bar and Bench on October 2, 2023, took a closer look at Section 31D of the copyright law to consider statutory licenses for internet broadcasting.

A copyright infringement case: The Tips Industries Ltd v Wynk Music Ltd & Anr. started somewhere around 2016 and involved a legal dispute between music streaming platform Wynk and Tips Industries Ltd, a music label. The platform was accused of copyright infringement for allegedly offering the label’s music without proper licensing. Overall, the case revolved around copyright violations and the need for streaming platforms to secure proper licensing agreements with content owners.

Patel looks at copyright provisions in the digital age: In the oral judgement, Patel looked at Wynk’s assertion of its rights as a ‘broadcaster’. The platform invoked Section 31D for this assertion which Patel called “the heart of the controversy.” Wynk claimed that Section 31D covers all kinds of dissemination under the phrase “broadcast” or “communicating to the public.” Meanwhile, Tips argued that the Section is limited and confined to traditional radio and television only.

The order noted that Section 31D does not expressly say anything about the internet. It does not prohibit or forbid, even by necessary implication, internet-based services, whether these are internet-based radio-like or internet-based non-radio-like services. The oral judgement thus highlights how this provision applies in the context of the internet, adding another dimension to the topic of statutory license to musical and literary works.

Distinction between internet-based and traditional broadcasting: An important point that came up in Patel’s judgement was the distinction between services that are offered online i.e. which are internet-based, and those that are not internet-based. The order said the real distinction between these two types of services depended on “whether a service does or does not give users a choice of what is being played and what is being heard.”

For example, in a traditional FM broadcast, there is no question of recurring monthly subscription. A person tunes in to the radio station of choice and has no control over the content. The person must listen to whatever is being played, including “the somewhat annoying non-stop chatter of the radio jockeys and equally annoying but undoubtedly necessary advertisements.”

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Meanwhile, online services sometimes do away with advertisements with a fee. However, all radio-type services offer no control to the user over the content. Some online radio-type services allow the user the choice of selecting a particular genre or sub-genre but, even in that, the user must listen to whatever is being played, noted Patel.

What differentiates platforms like Wynk as an “internet-based non-radio” service is the fact that it allows users/subscribers to put together playlists with no limit to the number of playlists or what can be added to each, or how often these may be played or replayed.

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Patel rejects Wynk’s claim as internet broadcasting service: In the 2019 judgement made by Justice S J Kathawalla, it was concluded that “internet broadcasting organizations cannot enjoy the benefits of a Statutory License under Section 31D.” It was stated that the Copyright (Amendment) Act, 2012, restricted the grant of Statutory License under Section 31D to radio and television broadcasting organisations. According to SpicyIP, Kathawalla looked at Section 31D(3), as well as the rules framed under it and concluded that statutory licensing was intended to cover only ‘radio’ and ‘television’ broadcasting. He also referred to the Report of the Rajya Sabha Parliamentary Committee on the Copyright Amendment Act, 2012 and concluded that the legislature intentionally chose to not include internet streaming services and similar communications within Section 31D.

Similarly, Patel affirmed this interpretation of the provision being restricted to “traditional non-internet-based radio and television broadcasting and performances alone.”

Criticisms against the exclusion of internet in Section 31D: Although the oral order upheld the decision to restrict Section 31D to radio and television, there have been previous contentions against this interpretation.

Supreme Court lawyer Karan Dhalla, who was a student when the 2019 judgement was made, had written on SpicyIP on why he disagreed with such an understanding of the law. He referred to the definition of “communication to the public” under Section 2(ff) as “making any work or performance available for being seen or heard…. 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 so made available.” According to Dhalla, this meant that the proprietor only has to make the musical works available to qualify as a means of communication. This status is not affected by how individuals choose to consume the work. Further, he argued that such an interpretation of Section 31D as done by the court, will also not cover recording options offered by satellite providers since individuals decide what to record and when to watch.

Further, Dhalla also challenged the claim that the Parliament was aware that the definition of broadcast in Section 2(dd) as ‘communication to the public by any means of wireless diffusion’ meaning that it is open-ended and covers Internet broadcasting.

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“Thus, Parliament’s refusal to qualify the term “broadcast” in Section 31D(1) reflects the intention to not discriminate between providers on the basis of their medium,” said Dhalla.

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I'm interested in the shaping and strengthening of rights in the digital space. I cover cybersecurity, platform regulation, gig worker economy. In my free time, I'm either binge-watching an anime or off on a hike.

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