A wants to get a statutory licence in respect of a musical work. How can he get it?

Facts of the Case

‘A’ is a content creator and entrepreneur who runs a digital streaming platform focused on Indian classical and contemporary music. In order to enrich the platform’s offerings and reach a wider audience, A wants to broadcast a set of renowned musical works composed and recorded by various artists. These works are under copyright protection, and A is aware that broadcasting them without appropriate permissions would amount to infringement under Indian copyright law.

To comply with the law and yet make use of the works, A decides to opt for a statutory licence—a legal route that allows the use of copyrighted works without direct negotiation with each rights holder, provided certain conditions are met. He seeks to understand the process for obtaining this licence under Indian law, especially under Section 31D of the Copyright Act, 1957, as amended by the Copyright (Amendment) Act, 2012.

Issues of the Case

1. What legal provision permits A to use musical works without individual negotiation?
   A needs clarity on how the statutory licence under Section 31D applies to his streaming platform.
2. What conditions must A fulfill to obtain this statutory licence legally?
   A must ensure he meets all statutory requirements, such as giving prior notice and paying royalties.
3. Does the statutory licence cover online streaming, or is it limited to traditional broadcasting?
   This raises the question of how courts interpret “communication to the public” under Section 31D.

Principles and Related Case Law

Section 31D of the Copyright Act, 1957 governs statutory licensing for broadcasting of literary and musical works and sound recordings. The provision enables broadcasters to use copyrighted material without prior consent of rights holders, provided they pay royalties and follow the rules specified by the Copyright Board (now replaced by the Intellectual Property Appellate Board, and further responsibilities now lie with commercial courts after its abolition in 2021).

Key requirements for a statutory licence under Section 31D:

• The applicant must give prior notice to the copyright owner and the copyright office.
• Royalties must be paid at rates fixed by the appropriate authority.
• The license must be non-exclusive and cannot be assigned.
• The broadcaster must not alter the integrity of the work.

Case Reference: Tips Industries Ltd. v. Wynk Music Ltd. (2021)
This landmark case clarified that a digital streaming platform could not claim statutory licence under Section 31D, as the provision originally applied to traditional broadcasters like radio and television. The Bombay High Court held that Section 31D’s scope, as per legislative intent, did not extend to online streaming services unless specifically amended.

However, the Department for Promotion of Industry and Internal Trade (DPIIT) issued an Office Memorandum in 2016 clarifying that “internet broadcasters” also fall under Section 31D. While this memorandum is persuasive, courts have often given it limited weight unless codified into the statute.

Judgement and Legal Procedure

To obtain a statutory licence in respect of a musical work, A must take the following steps:

1. Submit Prior Notice: A must send a written notice to the copyright owner (and publicly notify via official channels such as newspapers or the Copyright Office website), indicating the intention to broadcast or stream specific musical works.
2. Specify Details: The notice must include:
   • Name of the musical works.
   • Time and manner of intended communication.
   • Nature of use (radio, TV, internet streaming, etc.).
   • Geographical scope of the communication.
3. Royalty Payment: A must pay royalties at the rates fixed by the Copyright Board (or as may be prescribed by rules or through industry-negotiated tariff schemes).
4. Compliance with Conditions: A must ensure:
   • No distortion or unauthorized modification of the musical work.
   • Use is for the purpose of communicating the work to the public.
   • The licence remains non-exclusive and non-transferable.
5. Maintain Records: A must maintain detailed records of usage and submit reports to the copyright holders or licensing bodies.

Judicial Viewpoint:
While courts like the Bombay High Court have expressed a narrow view of Section 31D, newer interpretations and regulatory clarifications have expanded its applicability. If A operates a streaming platform, he must check whether the prevailing interpretation in his jurisdiction recognizes such platforms under Section 31D. If not, A may need to obtain voluntary licences from rights holders.