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.
It is relevant to note that the term broadcasting organization
not defined under the Copyright Act 1957, however, the term broadcast
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
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
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
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
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
, 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
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
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
and television broadcast
for each time it is used in with each mode of
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.
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.
- An over-the-top (OTT) media service is a streaming media service offered
directly to viewers via the Internet.
- 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
- The Copyrights Act,1957,s.2 cl.dd
- 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.
- 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.
- 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.
- 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,:
- re-broadcasts the broadcast; or
- causes the broadcast to be heard or seen by the public on payment of any
- makes any sound recording or visual recording of the broadcast; or
- 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
- 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.
- Turner Broadcasting System Asia Pacific Inc. vs Dcit, New Delhi on 30
- 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.
- 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
- Secretary, Ministry of Information and Broadcasting v. Cricket
Association of Bengal(1995) 2 SCC 161
- 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
- They are different online streaming services that provide instant access
to a vast online library of music,movies,etc.
- 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.
- 227th Report of the Rajya Sabha Parliamentary Standing Committee on the
Copyright (Amendment) Bill, 2010
- G.S.R. 393(E). dated May 30, 2019 (F. No. P-24029/2/2019-IPR-VII) available
- 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?