By, Ananya Sivadas
In 2012, an amendment was made to the Copyright Act, 1957 introducing the highly disputed Section 31D giving effect to statutory license for broadcasting of literary and musical works and sound recording. The ambiguity that surrounds this provision has resulted in two disputes before the High Court of Bombay. The first between Warner Music Group and Spotify India and the second, between Tips Industries Pvt Ltd and Wynk Music India Pvt Ltd.
These cases depict the current usage of Section 31D of the Copyright Act, 1957 as a weapon by such companies to expand their business, taking advantage of an ambiguity in the existing law. This is reflective of a major loophole in the existing laws wherein parties are encouraged to adopt the “my way or no way” policy simply because of the lack of clarity on what can and cannot be brought within the ambit of the term “broadcast.” This ambiguity in the law has not only affected the parties concerned but has also left a negative image of Indian laws with respect to smooth and flawless compliance[i] as aimed for by the Ministry of Commerce & Industry. This only goes to show that change is the need of the hour. In light of this, the Department for Promotion of Industry and Internal Trade has proposed to introduce the Copyright Amendment Rules, 2019. One of the many changes proposed is in relation to statutory licensing by way of amendments made to Rules 29, 30 and 31. While the intention is to do away with the uncertainty engulfing the existing regime, there are still many gaps that are to be bridged before adopting the law on the whole.
Rules 29, 30 and 31 pertain to Section 31D and the said amendment seeks to replace the words “by way of radio broadcast or television broadcast” with the words “for each mode of broadcast” in Rules 29 and thereby expand the modes of broadcast to include internet broadcasting as well. Whereas, the change suggested to Rule 31 would now result in the Appellate Board determining the royalties for all modes of broadcast. However, if this change to Rule 29 is notified, it would result in a contravention with the Copyright Act, 1957 and would thereby attract the doctrine of substantive ultra-vires, rendering this subordinate legislation to be invalid on the grounds of it being ultra vires the Parent Act. It has been observed by the Supreme Court in the case of Kunj Behari Lal Butail v. State of H.P[ii] that the power to legislate Rules cannot be used to bring a subject that has been specifically excluded by the statute itself. The Bombay High Court observed from the Rajya Sabha Parliamentary Standing Committee Report, that the legislature despite being aware of the prevalent digital technologies and trends did not think to expressly mention internet broadcasting because the prime objective of the provision was to ensure that the public had access to the FM radio. The Court also pointed out that Section 52(1)(c) of the Act reflected the legislature’s intention to maintain the applicability of Section 31D to radio and television broadcast by way of making a separate provision to protect the interest of Internet Service Providers. The said provision provides that the transient or incidental storage of work for the purpose of providing electronic access, where the same is not prohibited by the right holder will not be considered copyright infringement, subject to certain condition as accounted for in the provision. Keeping these points in mind, it is pertinent to note that Section 78(1) of the Act provides a general rulemaking power to the Central Government “for carrying on the purposes of the Act” which clearly indicates that there exist no such power under the Act to give effect to the proposed changes as the said changes are beyond what the Statute envisaged.
Further, the term “each mode of broadcast” has not been imposed with any limitation regarding its composition which is likely to result in confusion regarding who may or may not be brought within the ambit of this provision. If such a broad interpretation is offered then it would result in broadcast happening on multiple platforms, coupled with the large-scale accumulation of underserved property rights on account of the newfound protection the law would offer, leaving very little room for control by the owner regarding the communication of such work. Additionally, it is unclear as to whether Section 52 which offers protection to Internet Service Providers would be still be required on the notification of the Rules or whether changes would have to be made in that aspect as well.
In light of the above mentioned shortcomings, it can be said that these Draft Rules appear to be a hasty attempt to remedy the basis of the judgment delivered by the Bombay High Court in the dispute concerning Tips Industries and Wynk Music, therefore making it imperative that the same be remedied before notifying in order to prevent any further confusion in this regard.
[i] Press Information Bureau, , (Dec. 25, 2019), https://pib.gov.in/newsite/PrintRelease.aspx?relid=190222/.