Authos – Mansi Jain, Student from National Law University Jodhpur
Rule 29 of the Copyright Rules, 2013 has been framed under Section 31D of the Copyright Act [1] which deals with statutory license for broadcasting of literary and musical works and sound recording. Rule 29 of the Copyright Rules, 2013 was drafted in reference to Section 31D of the Copyright Act, which addresses statutory licenses for the broadcast of literary and musical works, as well as sound recording.
Rule 29 (4) specifies the kind of information or supplementary information that must be provided by the broadcaster while providing prior notice under Rule 29 to broadcast. It is concerned with “notice for public communication of literary, musical works and sound recordings”.[2]
The rule mandates broadcasters to notify the owner of the copyright and the Registrar of Copyrights of their intention to broadcast copyrighted content at least five days before the broadcast. Furthermore, the Rule requires broadcasters to pay copyright owners royalties at the rate set by the Copyright Board.
It would be difficult to predict what listeners could request for on a live broadcast show in our fast-paced society. As a result, it is nearly difficult to provide some of the information requested under Rule 29 (4) five days in advance, such as time slots, duration or term of the program, and so on. In this article, I shall analyze the difficulties with enforcement of Rule 29(4) and also give recommendations.
Analysis of ISSUES Within The Law
During the hearing, in New Radio India v. Union of India [3] (New Radio case), a case pending in the Madras High Court, before the Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavulu, The Court observed that Rule 29 (4) appears to be somewhat problematic and unworkable, and broadcasters, copyright holders, and experts may need to work together to recommend amendments to the Rule in certain respects. The certain respect which shall be revisited, in my opinion, may be:
I. Unworkable Deadlines
According to Rule 29, the information specified in Rule 29 (4) must be sent to the copyright owner five days prior to the intended broadcast. However, the second caveat to Rule 29 allows broadcasters to provide information within 24 hours of the broadcast if unexpected circumstances emerge[4] (i.e it allows ex-post-facto notice as an exception to the Rule in unforseeable circumstances).
Prima facie, the Rules appear to be unworkable in a way that they appear to be nearly claustrophobic in their functioning and provide little space for flexibility. The Court noted the petitioner’s complaint that it is nearly difficult to provide certain information requested under Rule 29 (4), five days in advance, such as timings, duration or term of the programme, and so on.[5] Even, the time-frame of 24 hours after broadcast, for ex post facto notice in unforeseeable circumstances under second proviso, “appears unrealistic” given the unpredictable nature of programs.[6] It is virtually impossible to control the duration of music or the number of songs that may be broadcast.
Pertinently, as interim relief, the Madras High Court extended the time-slot given in the second proviso to “within fifteen days” after the broadcast[7], however, the same shall be subjected to obtaining permission prior to the broadcast.
II. Live Programmes
The rule can be impractical and unworkable, since there can be no spontaneous basis. In a live broadcast, for example, if a team wins a match, a team player singing in the interview would be a breach of copyright. How can the interviewer know that the person will sing a song in elation, resulting in a copyright violation in the broadcast? Similarly, predicting what radio listeners could ask would be challenging on a live radio show.
The Court in New Radio case has observed that the Rules can be difficult to implement when it comes to live program.[8] In this regard, the order stated that the fundamental idea of ad-lib, which is the core of spontaneity in any live speech or performance, will be lost if pre-planned the details, down to the last seconds of performance, were required to be communicated, as the impugned Rule may be seen to indicate.
I. Redundancy of the Rule
The Rule is difficult for broadcasters to comply with, and because it does not result in “any large monetary entitlement to the owner,” it may lead to people opting for compulsory licensing or direct licensing, that may not be the objective of the legislation and it may also not benefit copyright holders.
In this regard, the interim order in the New Radio case stated that “it is not as though the Rule absolutely satisfies the copyright owners.” Indeed, the notion of compulsory licensing may not be in the best interests of the owners or copyright holders because such owners demand on consensual licensing terms to be secured by intended broadcasters of their works.”
II. Online Broadcasting
Section 31D provides the ground work for Rule 29(4) specifically covers the terms ‘radio broadcast’ and ‘television broadcasting’ only. In Tips v. Wynk [9], Bombay High Court opined, at the time, the lawmakers were aware of the Internet’s presence for content sharing. The court interpreted the absence of any reference to the Internet in the clause as a deliberate decision to confine the statutory licencing framework to radio and television broadcasters exclusively.
With the development in online music streaming, downloading, and sharing, providers have begun to seek refuge under Section 31-D, allowing them to exploit Copyrighted works without receiving prior permission from the owners.[10] The court’s conclusion that Section 31-D does not apply to internet broadcasters has a significant impact on various other online music providers. It not only provides the copyright holders an advantage in future negotiations for broadcasting deals, but it also puts all prior agreements into question for comparable infringement. This ruling by the Hon’ble High Court is crucial and a lifeline for copyright holders.
Recommendations & Conclusion
I. Prima facie, the Rules appear to be unworkable in that they appear to be virtually claustrophobic in their functioning and provide very little space for adjustment. The best way forward, according to the justices in the New Radio case, may be for representatives of radio and television broadcasting entities, as well as the major owners of copyright in musical works and literary and dramatic works[11], to sit down in the presence of experts to work out the modalities and revamps Rule 29 entirely.
II. As per Rule 29, the information required by Rule 29 (4) must be provided to the copyright holder five days prior to the intended broadcast.[12] Copyright holders’ main concern is that their intellectual property rights are not violated and that they do not lose revenue. It is recommended that the period to give the required information be extended by a month after the broadcast in order to provide flexibility to the broadcaster, as well as to ensure that no royalty payment is delayed for the copyright holders and that their copyright is safeguarded.
This modification may make the Rule easier for broadcasters to comply with, as compulsory licensing may not be in the best interests of the owners or the copyright, because such owners insist on consensual licensing terms acquired by intended broadcasters of their works.
III. Since there’s no clear understanding of the terms “for each mode of broadcast,” it may result in numerous interpretations of “broadcast” and may encompass “internet-based services.” The term “broadcast” should have a precise definition.[13] This is due to the fact that Section 31(D) read with Rule 29 is primarily applied to radio and television broadcasters. It is proposed that sections of the Copyright Act, 1957, especially Section 31D, be amended to avoid any contradiction between the Act and the Rules, and that they be construed harmoniously.
Notably, interpreting services as “broadcast” would be incorrect and would be contrary to the judgment in Tips Industries vs Wynk Limited and Anr. In view of the foregoing, the proposed regulation may be reconsidered. It is also an important solution to track down the pirates and bring them into the legal framework.
IV. Similarly, it is proposed that the wording “for each method of transmission” be substituted in Sub Rule 4 Clause h, as follows: Mode of intended public communication, i.e. radio, television, or performance; Mode of proposed public communication
* Mansi Jain, a penultimate year law student with a keen interest in the field of Intellectual Property laws. [Authored on 24.04.2022]
[1] The Copyright (Amendment) Act, 1992, No. 13, Acts of Parliament, 1992 (India). Hereinafter referred as Copyright Act.
[2] Copyright Rules, 2013, Department Of Industrial Policy & Promotion Ministry of Commerce and Industry, 2013 (India). Hereinafter referred as Copyright Rules.
[3] New Radio India v. Union of India, (2021)Madras High Court, W.P.No.15860 of 2021. Hereinafter referred as New Radio. , supra note 3.
[4] Meera Emmanuel, [Broadcast of copyrighted music] “Appears somewhat unworkable:” Madras High Court issues notice in challenge to Rule 29(4) of Copyright Rules, The Bar and Bench (Aug. 2 2021, 9:00 am), https://www.barandbench.com/news/litigation/broadcast-copyrighted-music-madras-high-court-notice-in-challenge-to-rule-294-copyright-rules
[5] Copyright Rules, supra note 2.
[6] Copyright Rules, supra note 2.
[7] New Radio, supra note 3.
[8] New Radio, supra note 3.
[9] Tips Industries Ltd. vs. Wynk Music Ltd. & Anr. (2018) (Commercial Suit IP (L) No. 114 of 2018 and Commercial Suit IP (L) No. 113 of 2018). Hereinafter referred as Wynk v. Tips.
[10] Copyright Act, supra note 1.
[11] New Radio, supra note 3.
[12] Copyright Rules, supra note 2.
[13] Wink v Tips, supra note 9.