Section 31 D (1) refers to a ‘broadcasting organisation’. This expression has not been defined under the Act. However, s 2(dd) introduced in 2012, defines “broadcast” as follows:
“broadcast” means communication to the public—
(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
(ii) by wire,
and includes a re-broadcast;
The definition of ‘broadcast’ has two key ingredients:
(a) there must be a communication to the public;
(b) this communication must be through wireless diffusion or by wire.
Broadcasting or performance of such work can be done by issuing a prior notice of the intention to broadcast the work and by paying royalty to the rights holder, as fixed by the Copyright Board. However, the term "Copyright Board" in the Act has been substituted with "Appellate Board" as per the Finance Act, 2017.
Due to widespread growth of internet all over the globe, 'communication to public' via internet is much more prevalent and thus, on September 05, 2016, the Department of Industrial Policy and Promotion (DIPP) issued an Office Memorandum clarifying the scope of section 31 D of Copyright Act, 1957 by construing that "any broadcasting organization desirous of communicating to the public" may not be restrictively interpreted to be covering only radio and television broadcasting, as definition of "broadcast" read with "communication to the public" appears to include all kinds of broadcasts including internet broadcasting.1 Therefore, bringing 'online broadcasting' under the ambit of section 31 D of Copyright Act, 1957.
Swaroop Mamidipudi: An advocate practicing in copyright law at the Madras High Court Contended Two Issues Arising Out of Office Memorandum:
Does the Central Government have the right to issue such an OM and is it binding?
Is the OM legally sound?
Central Government’s power to issue the OM
The Act sets up two main bodies to administer it, namely the Copyright Office and the Copyright Board. Certain functions are given specifically to the Copyright Office, which is headed by the Registrar of Copyrights and his subordinates, and other powers, mostly adjudicatory or quasi-judicial in nature, are given to the Copyright Board.
The principal function of the Copyright Office is to maintain a Register of Copyrights of the names, addresses of authors and owners of the Copyright for the time being and other relevant particulars may be entered. As per s 9 of the Act, the Copyright Office is under the immediate control of the Registrar of Copyrights who in turn shall act under the superintendence and direction of the Central Government.
On the other hand, the Copyright Board, set up under s 11 of the Act, is an independent body, and is not under the direction or supervision of the Central Government. It has been held to be a quasi-judicial body by the Supreme Court in the Super Cassettes judgment and by the Madras High Court in the South Indian Music Companies Association judgment. In fact, the Madras High Court held that in the selection committee and process of selection of members to the Copyright Board, primacy must be given to the judiciary. This shows that as far as the powers and functions given to the Copyright Board are concerned, it is meant to act as a body outside the control and supervision of the Central Government. There is, in other words, a separation of powers between the Copyright Office and the Copyright Board.
S 31D of the Act dealing with statutory licensing is administered by the Copyright Board and must be, as a corollary, interpreted only by the Copyright Board and the judiciary. The Central Government has no role in either administering or interpreting it. The Central Government has no right to issue any clarification, memorandum, notification or any other such note that ‘interprets’ or ‘clarifies’ s 31D.
The Government’s power is, in fact, much narrower. Unlike s 119 of the Income Tax Act, 1961 or similar such provisions in the other taxing statutes, there is no express provision in the Copyright Act, 1957 which empowers the Central Government to issue instructions or orders or clarifications regarding any statutory provision. Although the Act states that Registrar of Copyrights shall act under the “superintendence and direction” of the Central Government, it is clear that such “superintendence and direction” does not envisage the power to issue clarificatory statements.
The Human Resource Development Minister, at the time of passing the bill introducing section 31D in the Parliament in his speech had stated that:
“The Copyright Board, as a matter of law, under the statute will actually decide on the quantum of money that will be required to be paid by the TV companies to the music companies who have bought over those rights. Therefore, there was some debate as to whether it should be limited only to radio, and TV should be kept out of it. But ultimately, we decided that TV should be included in it.”
So, from a plain reading of the speech of the HRD Minister, it is very evident that the only debate was if the provisions of s 31D should be limited only to radio or should include the TV broadcasters and it was never the intention of the Legislature to include internet broadcasters within the ambit of this section. Any attempt to do so will be against the spirit of the amendment.