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The subject of statutory licensing of copyrighted material, is
one which has been the subject of much debate over the last few
years. As such, the same was also scrutinized in depth by the
Department for Promotion of Industry and Internal Trade (DPIIT),
which had made several proposals vide the Draft Copyright
(Amendment) Rules, 2019 (please refer to our earlier article in
this regard at https://ssrana.in/articles/internet-broadcasting-statutory-license-section-31dcopyright/).
The issue of statutory licensing under copyright law has now
once again come under the public lens, due to the recent legal
tussle between the global media and entertainment behemoth,
Sony, and KAL Radio. Sony dragged
KAL Radio before the Hon’ble Bombay High
Court, inter alia alleging infringement of broadcasting rights.
THE PLAINTIFF
The Plaintiff in this case is Sony Music Entertainment
India Private Limited (‘Sony India’), a part of
the famous global entertainment and electronics conglomerate.
Sony India is the owner of, inter alia, various
sound recordings and other media.
The Defendant No. 2 in this case is Sony Music
Entertainment (“Sony Music“), a
New York based music label which acquires, owns and controls
copyright in various works and distributes music in various genres.
Sony India is Sony Music’s
exclusive licensee in India for the international music and sound
recordings in which Sony Music has copyright. As noted by the
venerable Justice Mr. Gautam Patel in his Order
dated June 18, 2021, the above is Sony India’s
“international repertoire”. Sony India was a member of
the controversial Phonographic Performance Limited
(“PPL”) prior to 2010.
THE DEFENDANTS
The Defendant No. 1 in this case is KAL Radio,
an Indian Broadcaster, under the meaning of the Copyright Act 1957.
Kal Radio used to broadcast copyright works of
Sony India under licenses obtained from the
PPL.
POINT OF LAW IN CONTENTION
Section 31(D) of the Copyright Act, 1957, which provides for
statutory license for broadcasting of
literary and musical works and sound recording. As per the section,
a license entails a notice in the prescribed form to the holder of
copyright, and payment of a fee (including an advance, if so
ordered).
Such notice must include various pertinent things, such as,
inter alia, names of the programmes in which the copyright
protected works are to be included, details of time-slots,
durations and period of programmes, etc.
The main point of contention herein is the interpretation and
the manner of applicability of Section 31-D of the Act and Rule 29
of the Rules, and its rigidity/ strictness.
OTHER LEGAL TUSSLES REGARDING SECTION 31(D) AND LICENSING
As readers may be aware, The Copyright Board in 2010, determined
a license fee in regard to the compulsory licensing regime under
Section 31 of the Copyright Act. Many broadcasting organisations
had sought statutory licenses by filing applications with the
erstwhile IPAB under Section 31-D read with Rule
31 of the Copyright Rules 2013. The IPAB, on December 31, 2020, had
determined royalty rates applicable for such licensing. However,
there is pending litigation about the said Order of IPAB before the
Delhi High Court.
FACTUAL BACKGROUND
As noted earlier, Kal Radio used to broadcast
copyright works of Sony India under licenses
obtained from the PPL.
However, KAL Radio in February 2021 had sent an email to Sony
India, inter alia seeking information about its copyrighted works,
to which Sony India has replied that the copyrighted works in
question have been a part of KAL Radio’s broadcasts for years,
but nevertheless, a list was provided to the Defendant. Thereafter,
KAL Radio purportedly sent a
‘Notice’ to Sony India on
February 12, inter alia claiming an entitlement to a statutory
license and forwarding a payment of INR 64,750, which was, as noted
by Justice Patel, quantified without basis and was bereft of the
details that Section 31-D contemplated. Thus, Sony India promptly
returned the cheque to them, and asked them to comply with the
Rules. Thereafter in early March 2021, it came to Sony India’s
notice that they are broadcasting copyrighted sound recordings from
Sony India’s ‘Indian repertoire‘. Thereafter,
KAL Radio had sent another cheque to Sony India on March 9th, 2021.
Another pertinent factum of this case is that Sony India per se did
not refuse the license, rather, they asked KAL Radio to comply with
the Rules.
THE PLAINTIFF’S ARGUMENTS AND RELIEF SOUGHT
In view of the above background, Sony India filed a suit for
copyright infringement, seeking injunction and damages, as the KAL
Radio had been broadcasting Sony India’s copyrighted work
without a valid license.
THE DEFENDANT’S ARGUMENTS
The Defendant’s primary argument in this case was that the
scheme of Section 31-D entitles a broadcasting organisation to use
the works ‘the moment it sends a notice and
payment‘ and that balance of convenience is in their
favour. The Defendant further argued that there has been
‘sufficient compliance’ with Rule 29 of the Copyright
Rules.
COURT’S HOLDING AND REASONING
The Court held in favour of the Plaintiff and granted a
time-limited ad-interim injunction in terms of prayer clause (a),
and the reasoning of the court is explained below:
- KAL Radio did not have a statutory license, and the notice as
sent to Sony India, was not fully compliant with Section 31D and
Rule 29. The notice did not even contain names of programmes,
details of time slots, and duration of period of programmes, which
are a compulsory prerequisite under Rule 29. KAL Radio did not have
a logical or apparent basis of its royalty computations as
well. - Strict compliance of the Act and the Rules are necessary, and
one cannot just get by making ‘sufficient’ compliance.
CONCLUSION – THE TAKEAWAY
The major takeaway from this order is that the Court considers
strict/rigid compliance with Section 31D and Rule 29 to be an
essential component of statutory copyright licensing. Mere sending
of a notice to a right holder, does not grant the party a right to
use the copyrighted works of the owner. There has to be strict/
complete compliance with the prerequisites, to get a statutory
license. This is especially important as such statutory licensing
in essence deprives a copyright-owner of the freedom of choice in
licensing, and thus has to be exercised under strict/right
conditions and protocols.
This recent order of the Bombay High Court has struck a valuable
balance between the rights of the copyright owners and public
interest. While statutory licensing, in the eyes of many, remains
to be a rather harsh aspect of IP jurisprudence, one which deprives
the exclusive rights of copyright owners, this is a case which
would instil some semblance of confidence in the minds of rights
owners – that at least there has to be strict compliance with the
requisite laws, to get a statutory license.
This would also hopefully embolden right holders of other
countries, to bring their craft to India, secure in the knowledge
that statutory licensing is one which can only be exercised with
strict/rigid conditions. This case may also have a persuasive
effect on many other such similar pending litigations. In this
regard, you may refer to our earlier articles on this topic at https://ssrana.in/articles/internet-broadcasting-statutory-license-section-31d-copyright/
and https://ssrana.in/articles/internet-broadcasting-and-section-31d-of-copyright-act-1957/.
For further information please contact at S.S Rana &
Co. email: info@ssrana.in or call at (+91- 11 4012 3000).
Our website can be accessed at
www.ssrana.in
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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