 Section 31 deals with compulsory license in works withheld from

public
 Meaning – Compulsory license means that the use of owner’s
rights against payment is either set by law or determined through
some form of adjudication or arbitration. In other words, prior
permission from the right owner is not required if the mandate
provided by law is met with.
 The section states that if the owner of the rights has refused to
republish or allow republication or allow performance or allow
communication by way of broadcast to the public, the aggrieved
person may reach out to the Appellate Board. The Appellate
Board, after giving reasonable opportunity of being heard to the
owner, may hold an inquiry. If the Board is satisfied that the
grounds put by the owner are not reasonable then it shall direct
the Registrar of Copyrights to grant the license to the
complainant upon payment of such fees to the owner.
 Section 31 A deals with compulsory license in unpublished or
published works
 In case any (i) unpublished work, (ii) published work or (iii) work
communicated to the public is withheld from public in India and;
the author/ owner is (i) dead, (ii) unknown or (iii) cannot be
traced, any person shall approach the Appellate Board for a
license to publish or communicate to the public such work or a
translation in any language.
 Section 31 B deals with compulsory license for benefit of disabled
 Any person working for the benefit of disabled persons on a profit
basis or for business may apply to the Appellate Board in such
form and manner as prescribed in the Act and rules, for a
compulsory license to publish any work in which copyright
subsists for the benefit of such persons.

Statutory Licenses

 Section 31 C deals with statutory licensing to make cover

versions
  A person desirous of making cover versions, being a sound
recording in respect of any literary, dramatic or musical work,
where the sound recording of that work has been made by or
with the license or with the consent of the owner, may do so in
accordance of the provisions of the Act and rules 23 – 28 of the
Copyright Rules, 2013 that talks about the procedure which
needs to be followed to get the license.

For example: If S is desirous of making cover version of a musical work

with the license of the owner, he may do so by following the procedure.
He has to first serve a notice mentioning the intention of his work,
provide copies of all the covers and labels with which such sound
recording will be sold, shall pay in advance to the owner(s) of the
copyright the fee as prescribed by the Appellate Board. The cover version
shall not be changed to such an extent where the original meaning or
composition is lost in entirety. S has to also follow all such procedures as
mentioned in the Act and Rules.

 Section 31 D deals with broadcasting of literary, musical works

and sound recording
 Any broadcasting organization desirous of communicating to the
public by way of broadcast or by way of performance of sound
recording, musical or literary works, which has already been
published may do so by giving prior notice of its intention to
broadcast such work and by paying royalty fee to the copyright
owners at the rate fixed by the Intellectual Property Appellate
Board (IPAB).

Case Studies

o Petitions have been filed challenging the constitutionality

of section 31 D of the Copyright Act as per which a
broadcasting organization desirous of communicating
 any sound recording to the public, may obtain statutory
license to do so, provided royalty is paid to the copyright
owner(s) at the rate fixed by the Intellectual Property
Appellate Board (IPAB).
o With the ever-increasing growth of digital world, lot of
aspects of legality relating to online streaming,
broadcasting and rights of the owners are coming in
picture. This attracted more news due to the “Office
Memorandum” issued by the Department of Industrial
Policy and Promotion (DIPP), Ministry of Commerce
and Industry (Government of India) on 5th September
2016 which created a controversy.
o It stated that “the words ‘any Broadcasting Organization
desirous of communicating to the public..’ may not be
restrictively interpreted to be covering only Radio and TV
broadcasting as definition of ‘Broadcast” read with
‘communication to the public’ appears to be including all
kinds of broadcast, including Internet Broadcasting. Thus
Section 31 D not only covers Radio and TV Broadcasting
but also Internet Broadcasting.”
o The Hon’ble Supreme Court has made certain
observations in Entertainment Network (India)
Limited vs Super Cassette Industries Limited
(2008) SCC 30 as under:
o “The Copyright Act seeks to provide a balance between
the rights of the owners to protect their original works
and interest of the public at large to have access to the
works.
o The freedom to contract is the basic element of
economic activity and an essential aspect of several
Constitutional rights including The Freedom to Carry on
Trade or Business (Art 19 (1)(g)) and Right to Property
(Art 300 A) of the Constitution of India. But the said
rights are not absolute; they are subjected to reasonable
restrictions.”
 o Hence, on the above mentioned ground, the Supreme
Court held that various steps and principles have been
laid down in order to strike a balance between the rights
of the owners and the interest of the public; the
interpretation of the statute should include the doctrine
of “Purposive Construction” i.e. the law should be read
keeping the purpose in the mind and thus, Section 31
and 31 D of the Copyright Act is not unconstitutional.
o This has been reiterated by the Bombay High Court
in Tips Industries Ltd vs Wynk Music Ltd.
Commercial Suit (L) no. 113 & 114 of 2018 Bom
High Court. Justice Kathawalla has given a detail
clarification pertaining to online streaming and statutory
licensing and has ascertained that Section 31 D does not
include Internet Broadcasting.

The case background is as follows

 Tips Industries Ltd. (Plaintiff), a music label in India, which

controls copyright over a significant storehouse of popular music.
In 2016, such storehouse was licensed to Wynk Music Ltd.
(Defendant), an online music streaming service launched by
Airtel. After expiry of the license in 2017, both parties attempted
to renegotiate licensing terms for allowing Wynk to offer
downloading and streaming of musical works owned by Tips.
After negotiations broke down, Wynk took refuge by invoking
Section 31D of the Copyright Act.
 As such, Section 31D has been much a point of friction between
online music service providers and music publishers and labels
and in view of this, Tips challenged Wynk’s invocation of Section
31D and sued Wynk for infringement of their exclusive copyrights
in sound recordings under Section 14(1)(e).

Judgement
 Justice Kathawalla systematically knocked down defendant’s
defenses to the claim for infringement and prima facie found
Wynk to be guilty of direct infringement on two counts –

1. for ‘selling’ works under Section 14(1)(e)(ii), for allowing

downloading and offline listening of the plaintiff’s works; and
2. under Section 14(1)(e)(iii) for communicating the plaintiff’s
works to the public through their streaming service.

 The Bombay High Court clarified certain ambiguities pertaining to

online streaming and statutory licensing under section 31 D. They
are as under:

1. Section 31 D does not cover ‘downloading/ purchase’ of

works – The court stated that Wnyk’s feature of allowing users
to download songs and store it for unlimited period constitutes
“sale” and not “communication to the public” and hence does not
constitute “broadcast” under section 31 D of the Act. If it is
streamed without an option to download, only then it will refer to
be as broadcast.
2. Section 31 D does not cover internet broadcasting – Wynk
contended that Wynk’s streaming services get subsumed under
‘radio broadcasting’ and very confidently stated that internet
broadcasting is included under section 31 D upon relying on
Department of Industrial Policy and Promotion (DIPP)
Memorandum of 2016.
The court rejected the above contention and stated that section
31 D was an exception to copyright and must be strictly
interpreted. Section 31 D (3) and the rules framed thereunder
specifically covers statutory licensing for radio and television
broadcasting and not internet broadcasting. The court further
relied on Rajya Sabha Parliamentary Committee on Copyright
Amendment Act, 2012 and stated that the committee was well
aware of internet streaming but it intentionally chose to cover
only radio and television broadcasting under the scope of section
31 D.
 3. Section 31 D cannot be invoked without prior fixation of
royalty rates by IPAB – the Court firstly negated the powers of
IPAB in fixing royalty rates for internet broadcasting as the
section provides for only radio and television broadcasting.
Secondly, the court indicated that according to section 31 D and
the rules 29 – 31, fixation of rates by IPAB is necessary before
invoking this section. Hence, the defendants don’t have a
substantial case.

 Justice Kathawalla awarded Injunction to Tips Industries Ltd and

ascertained that Section 31 D does not cover internet
broadcasting.

Conclusion

The Owners and the public, both have their own interests and rights
because of which the Copyright Act has been implemented but it won’t
serve the purpose if the statutes are not interpreted correctly. Different
lawyers will have different view but food for thought is that in the end,
both the owner and the public get to such an understanding whereby they
both get to enjoy their interest. It’s not that the Owner does not get his
royalty or someone is not able to view certain works; it’s just the
tendency of getting more which has led to such a debate.