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Internet Broadcasting Under The Copyright Act, 1957

In today's knowledge society, a country's social and economic development depends heavily on the production, dissemination and absorption of information and knowledge. Most of the information reaches the public through radio and television. But what about the internet broadcasting, and that too in this pandemic situation which catalyzed the growth of OTT release of movies. With online platforms dominating the content circulation around the world, the ambit of protection granted to such platforms becomes an essential issue.

For the past few months, one of the major debates and conflicts under copyright laws of India, is with respect of this question, Whether online-internet platforms are covered under the scope of Section 31D of the Copyright Act 1957? This issue which appears to have a very simple answer, is however very complicated if Section 31D is carefully analyzed.

Broadcasting Organizations
It is relevant to note that the term broadcasting organization is not defined under the Copyright Act 1957, however, the term broadcast is defined as communication to the public by any means of wireless diffusion (whether in any one or more of the forms of signs, sounds or visual images;) or by wire, and includes a re-broadcast. Therefore, any organization providing broadcast services are covered under the ambit of broadcasting organizations.

Rights of broadcasting organizations are separately explained in the Section 37 of Copyright Act, 1957. And it defines broadcast reproduction right. Sub-section (1) of Section 37 of the said Act provides that every broadcasting organisation shall have special rights known as 'broadcast reproduction right' in respect of its broadcasts. Sub-section (2) of Section 37 provides that the broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. It is further provided that during the aforesaid period, if any person performs any act specified in sub-section (3) of Section 37, then such person shall be deemed to have infringed 'broadcast reproduction right'.

The issues for consideration are, therefore, whether and in what circumstances can the assessee company claim to own a copyright (right to broadcast) over the work it broadcasts, and whether there is a transfer, by grant of a license or otherwise, of this right to broadcast under the distribution agreements entered into by the assessee company with the Indian entity.

Under Section 31D of the Copyright Act, 1957 any broadcasting association desirous to communicate a work to the public by a broadcast or a performance, can acquire a statutory license to do so by giving a prior notice and paying royalties to the copyright owner at the rate fixed by the Intellectual Property Appellate Board (IPAB).

Further, the Copyright Rules (Rule 29-31) clarifies the methodology by which one can get the statutory license. Section 31D of the Act read with Rules 29 and 30 of the Copyright Rules 2013 enables broadcasting organisations to broadcast or perform any literary or musical works and sound recordings by issuing a prior notice of such intention to broadcast the said works and by paying royalty to the rights holder, as fixed by the Intellectual Property Appellate Board (IPAB). At present, the Act just covers radio broadcasting and television broadcasting.

The manner of determining the royalties to be paid under Section 31D is highlighted under Rule 31 of the Copyright Rules. As per this rule, the IPAB is to determine the royalties payable to the owner of the copyright under Section 31D by taking into account factors such as the time slot in which the broadcast takes place and different rates for different time slot including repeat broadcast, different rates for different class of works, different rates for different nature of use of work, the prevailing standards of royalties with regard to such works, etc.

There have however been differing views with respect to statutory licensing of online streaming services mainly due to the fact that the Copyright Rules 2013 do not explicitly contain the words internet streaming and/or broadcasting. In this regard, the Department of Industrial Policy and Promotion (DIPP) clarified the scope of internet streaming vide its office memorandum dated September 5, 2016, by stating that:
Section 31D which talks of 'any broadcasting organization desirous of communicating to the public'...may not be restrictively interpreted to be covering radio and TV broadcasting and appears to include internet broadcasting as well.

Quandary on Section 31 D of Copyright Act
In the landmark judgment, the Supreme Court of India has unequivocally established that the Freedom of speech and Expression includes the right to acquire and disseminate information. The right to communicate includes the right to communicate through any means available including the electronic media. And thus in this judgment it upheld the right of the match organizers to license the telecasting rights to a foreign broadcast agency.

Initially TV and Radio were the only broadcasting organizations which provided services of communicating work to the public however with advancement of technology public started relying on online internet platforms to obtain services of music and movies (it is evident from this situation of pandemic where all the movie halls are closed, mobiles & computers became the theatre screens where new movies are released via OTT platforms). With this paradigm shift witnessed in the mode of broadcasting, the online internet platform felt the need to make a representation before the Government of India, seeking a clarification if the online internet platforms are covered under term broadcasting organizations as mentioned under Section 31D of the Copyright Act 1957?

The Ministry of Commerce and Industry Government of India, vide an office Memorandum dated September 05, 2016 provided a clarification confirming that online platforms are covered under the term broadcasting organizations.

Does it really included these online platforms in the term broadcasting organizations? Any broadcasting organization does not include internet broadcasting under the section 31 D of the act. Since the statement by the office memorandum do not have a statutory recognition, so it will not stand.

This situation lead to the dilemma on the issue and the case is under an appeal considered before a Division Bench of Bombay High court. Although it was clear evident from the judgement that the internet broadcast does not include in the term Broadcasting organization but it is very difficult to accept this avoidance in this era of much advancement in technology.

An analysis on the internet broadcasting and its role in communication to the public.
Here the question to discuss on is that whether the internet broadcasting comes under the purview of the meaning of the broadcasting organization. Looking peripherally it seems the online internet platform to fit to the ambit of the term broadcasting organization as it is involved in the business of communicating the work to public. The service of making the work available to the public through various portals including but not limited to YouTube, Netflix, Gaana, Jio Spotify, Wynk etc., is in the nature of communicating the work to public.

However, at the very instance, when these online platforms allow the user/public to purchase/ download the content provided, then the nature of service extends beyond the service of communication of work to public. It is therefore, important to understand that the essence of Section 31D of the Copyright Act 1957 is that it offers statutory protection only to the broadcasting organisation which offers service only to the extent of communicating 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 already been published. Therefore, when the internet platforms offer services to sell/ rent the content, the nature of service provided by them extends beyond the scope of communicating the work to public.

The term ‘communicating to the public' itself helps us to understand that internet platforms are also information providers, but it sometimes cross this limit of being just an information provider. It not only just provides the information to the public but also gives an option for the public to go beyond just seeing or hearing the information.

Issuing physical copies or legitimate digital downloading music or video recording by payment cannot be considered a communication to the public. So we have to consider the case where the internet platforms are available only for the purpose of getting information, for the public, excluding the download / purchase options there provided and also limited to on demand limited access.

So it is clear at what point the internet broadcasting cross the limit of being an information provider and thus exceeds the scope of services in the Section 31 D of the act.

Need for an Amendment
It is peak time for an amendment to be made especially in this digital world where even the movie releases are shifted to the online platforms due to the limitations of this pandemic situation. Even though the Copyright Act 1957 provides for a limited scope of interpretation to include any broadcasting organization, the corresponding rules under the Copyright Rules, 2013 have been formulated keeping in mind Radio and TV broadcasting only as the modes of communicating work to public. Since the provisions of the Act and Rules, have to be read together for harmonious interpretation and applicability of the provision, therefore when Section 31D of the Copyright Act 1957 is read along with Rules 29 to 31 of the Copyright Rules 2013, then it becomes a bit challenging to include online internet platform under the ambit of broadcasting organization.

In order to overcome the above discrepancy and considering the sensational changes achieved in content sharing and broadcasting through technological advancements in the digital era, the Department for Promotion of Industry and Internal Trade, Government of India (DPIIT) has proposed to Draft Copyright (Amendment) Rules, 2019, which was open for public comment and now pending stakeholders meeting.

The Draft Rules are the most recent in a long series of regulatory moves made by the government to address the passage of internet streaming services into the Indian market. One of the major changes that the amendment proposes is Copyright framework to replace the terms radio broadcast and television broadcast for each time it is used in with each mode of broadcast. So it delibrates expresses that it is high time to recognise the internet broadcasting as well.

In a significant amendment to the Rules, all modes of broadcasting are proposed to be covered under the ambit of statutory licenses, which thereby include internet and over-the top (OTT) media services, for example, Netflix, Hotstar, Amazon Prime, Gaana, Saavn, Spotify,etc.

Conclusion
As to conclude it is to be said that Section 31 D of the Copyright Act, 1957 recognizes the rights of the Broadcasting Organizations such as radio and television. These the broadcasting organizations are which provides information to the users. As this is the function of the broadcasting organizations along with the radio and television it should also include internet broadcasters also as it is the main information providers in this digital era.

But on a careful analysis on the above section of the act it limits the function of the internet broadcasters being an information provider under the purview of the section, as it goes beyond the scope of the section. But in this digital era it's important for the internet broadcasters to get necessary recognition under the Copyright Act.

The online platform in its basic service has the essence of service with respect to communicating the work to public. It is therefore, just and fair, to actually develop the guidelines under which an online platform/ internet broadcasting can be said to be allowed to take benefits from the provisions of Section 31D of the Copyright Act 1957. The guidelines will not only help the online internet platforms to serve the public better but will also give the public the opportunity to access the works easily and with convenience.

References:
  1. An over-the-top (OTT) media service is a streaming media service offered directly to viewers via the Internet.
  2. Any broadcasting organization 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
  3. The Copyrights Act,1957,s.2 cl.dd
  4. The Copyrights Act,1957,S.31D,Cl.1,Any broadcasting organization 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.
  5. The Copyrights Act,1957,S.37,sub sec.1, Every broadcasting organisation shall have a special right to be known as ‘‘broadcast reproduction right'' in respect of its broadcasts.2[37. Broadcast reproduction right.—(1) Every broadcasting organisation shall have a special right to be known as ‘‘broadcast reproduction right'' in respect of its broadcasts.
  6. The Copyrights Act,1957,S.37,sub sec.2, The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.
  7. The Copyrights Act,1957,S.37,sub sec.3, During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the license of the owner of the right does any of the following acts of the broadcast or any substantial part thereof,:
    1. re-broadcasts the broadcast; or
    2. causes the broadcast to be heard or seen by the public on payment of any charges; or
    3. makes any sound recording or visual recording of the broadcast; or
    4. makes any reproduction of such sound recording or visual recording where such initial recording was done without license or, where it was licensed, for any purpose not envisaged by such licence; or
    5. sells or hires to the public, or offers for such sale or hire, any such sound recording or visual recording referred to in clause (c) or clause (d), shall, subject to the provisions of section 39, be deemed to have infringed the broadcast reproduction right.
  8. Turner Broadcasting System Asia Pacific Inc. vs Dcit, New Delhi on 30 September, 2020
  9. Copyright Rules- 29. Notice for Communication to the Public of literary and musical works and sound recordings.30. Maintaining of records.31. Manner of determining royalties.
  10. Scope of statutory licensing under Section 31D of Indian Copyright Act - Are Internet Broadcasting or Streaming Services covered?, https://www.lexology.com/library/detail.aspx
  11. Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal(1995) 2 SCC 161
  12. Tips Industries Ltd v. Wynk Music Ltd & Others,.Commercial Suit IP (L) NO. 114 OF 2018 and Commercial Suit IP (L) NO. 113 OF 2018
  13. They are different online streaming services that provide instant access to a vast online library of music,movies,etc.
  14. Copyrights Act,1957,s.2,cl.ff , Communication to the public means making any work 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.
  15. 227th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright (Amendment) Bill, 2010
  16. Ibid.4
  17. G.S.R. 393(E). dated May 30, 2019 (F. No. P-24029/2/2019-IPR-VII) available at https://dipp.gov.in/sites/default/files/Draft_Copyright_Amendment_Rules_2019.pdf
  18. Internet Broadcasting Organization And Statutory License Under Section 31D Of Copyright Act https://www.mondaq.com/india/copyright/921018/internet-broadcasting-organization-and-statutory-license-under-section-31d-of-copyright-act?

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