Statutory Licenses for Broadcasting – Part V: Notes on Copyright Amendment, 2012
This post was first published on 28th June, 2014.
The 2012 Copyright Amendment codified Statutory Licenses for radio broadcasting and has added television broadcasting to be within the scope of the license. Section 31D deals with statutory licenses for broadcasting. It reads as follows:
“31D. Statutory licence for broadcasting of literary and musical works and sound recording.
(1) Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.
(2) The broadcasting organisation shall give prior notice, in such manner as may be prescribed, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.
(3) The rates of royalty for radio broadcasting shall be different from television broadcasting and the copyright Board shall fix separate rates for radio broadcasting and television broadcasting.
(4) In fixing the manner and the rate of royalty under sub-section (2), the Copyright Board may require the broadcasting organisation to pay an advance to the owners of rights.
(5) The names of the authors and the principal performers of the work shall, except in case of the broadcasting organisation communicating such work by way of performance, be announced with the broadcast.
(6) No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights.
(7) The broadcasting organisation shall—
(a) maintain such records and books of account, and render to the owners of rights such reports and accounts; and
(b) allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast, in such manner as may be prescribed.
(8) Nothing in this section shall affect the operation of any licence issued or any agreement entered into before the commencement of the Copyright (Amendment) Act, 2012.”
The section permits a broadcasting organisation to broadcast or publicly perform a prior published literary or musical work and sound recording by acquiring a Statutory License. By virtue of the literal language, a sound recording, which is constituted by either literary or musical works may be used. A later clause provides that a work cannot be tampered with or modified except for technical purposes. Shortening a work, however, is allowed.
There is considerable debate about whether synchronization is covered in the scope of this provision. Upon bare reading, one cannot help but conclude that it would not be allowed, because synchronization requires more than technical changes to be made to the sound recording and from a literal reading of the first clause, use of literary/musical work alone is not permitted.
The Copyright Board, as earlier, will fix the royalty to be paid. This will be fixed separately for radio and television broadcasting and is payable in advance by the licensee. As of date, no rates have been fixed by the Copyright Board and Statutory Licenses, for this purpose, are still only on paper.
The section imposes attribution, requiring authors and performers to be credited before the broadcast. Specific provisions have been provided in the section for accountability and accounting.