Statutory Licensing Underneath Copyright Legislation – Sony Leisure PVT. Ltd v. KAL Radio Ltd – Licensing & Syndication

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The topic of statutory licensing of copyrighted materials, is
one which has been the topic of a lot debate over the previous few
years. As such, the identical was additionally scrutinized in depth by the
Division for Promotion of Business and Inner Commerce (DPIIT),
which had made a number of proposals vide the Draft Copyright
(Modification) Guidelines, 2019 (please confer with our earlier article in
this regard at https://ssrana.in/articles/internet-broadcasting-statutory-license-section-31dcopyright/).

The problem of statutory licensing below copyright regulation has now
as soon as once more come below the general public lens, as a result of latest authorized
tussle between the worldwide media and leisure behemoth,
Sony, and KAL Radio. Sony dragged
KAL Radio earlier than the Hon’ble Bombay Excessive
Court docket, inter alia alleging infringement of broadcasting rights.

THE PLAINTIFF

The Plaintiff on this case is Sony Music Leisure
India Non-public Restricted (‘Sony India’)
, part of
the well-known international leisure and electronics conglomerate.

Sony India is the proprietor of, inter alia, numerous
sound recordings and different media.

The Defendant No. 2 on this case is Sony Music
Leisure
(“Sony Music“), a
New York based mostly music label which acquires, owns and controls
copyright in numerous works and distributes music in numerous genres.
Sony India is Sony Music’s
unique licensee in India for the worldwide music and sound
recordings through which Sony Music has copyright. As famous by the
venerable Justice Mr. Gautam Patel in his Order
dated June 18, 2021, the above is Sony India’s
“worldwide repertoire”. Sony India was a member of
the controversial Phonographic Efficiency Restricted
(“PPL”) previous to 2010.

THE DEFENDANTS

The Defendant No. 1 on this case is KAL Radio,
an Indian Broadcaster, below the which means of the Copyright Act 1957.
Kal Radio used to broadcast copyright works of
Sony India below licenses obtained from the
PPL.

POINT OF LAW IN CONTENTION

Part 31(D) of the Copyright Act, 1957, which supplies for
statutory license for broadcasting of
literary and musical works and sound recording. As per the part,
a license entails a discover within the prescribed type to the holder of
copyright, and cost of a price (together with an advance, in that case
ordered).

Such discover should embrace numerous pertinent issues, resembling,
inter alia, names of the programmes through which the copyright
protected works are to be included, particulars of time-slots,
durations and interval of programmes, and many others.

The principle level of competition herein is the interpretation and
the way of applicability of Part 31-D of the Act and Rule 29
of the Guidelines, and its rigidity/ strictness.

OTHER LEGAL TUSSLES REGARDING SECTION 31(D) AND LICENSING

As readers could also be conscious, The Copyright Board in 2010, decided
a license price in regard to the obligatory licensing regime below
Part 31 of the Copyright Act. Many broadcasting organisations
had sought statutory licenses by submitting purposes with the
erstwhile IPAB below Part 31-D learn with Rule
31 of the Copyright Guidelines 2013. The IPAB, on December 31, 2020, had
decided royalty charges relevant for such licensing. Nonetheless,
there may be pending litigation in regards to the mentioned Order of IPAB earlier than the
Delhi Excessive Court docket.

FACTUAL BACKGROUND

As famous earlier, Kal Radio used to broadcast
copyright works of Sony India below licenses
obtained from the PPL.

Nonetheless, KAL Radio in February 2021 had despatched an e-mail to Sony
India, inter alia in search of details about its copyrighted works,
to which Sony India has replied that the copyrighted works in
query have been part of KAL Radio’s broadcasts for years,
however nonetheless, a listing was offered to the Defendant. Thereafter,
KAL Radio purportedly despatched a
‘Discover’ to Sony India on
February 12, inter alia claiming an entitlement to a statutory
license and forwarding a cost of INR 64,750, which was, as famous
by Justice Patel, quantified with out foundation and was bereft of the
particulars that Part 31-D contemplated. Thus, Sony India promptly
returned the cheque to them, and requested them to adjust to the
Guidelines. Thereafter in early March 2021, it got here to Sony India’s
discover that they’re broadcasting copyrighted sound recordings from
Sony India’s ‘Indian repertoire‘. Thereafter,
KAL Radio had despatched one other cheque to Sony India on March ninth, 2021.
One other pertinent factum of this case is that Sony India per se did
not refuse the license, fairly, they requested KAL Radio to adjust to
the Guidelines.

THE PLAINTIFF’S ARGUMENTS AND RELIEF SOUGHT

In view of the above background, Sony India filed a go well with for
copyright infringement, in search of injunction and damages, because the KAL
Radio had been broadcasting Sony India’s copyrighted work
with out a legitimate license.

THE DEFENDANT’S ARGUMENTS

The Defendant’s major argument on this case was that the
scheme of Part 31-D entitles a broadcasting organisation to make use of
the works ‘the second it sends a discover and
cost
‘ and that stability of comfort is of their
favour. The Defendant additional argued that there was
‘ample compliance’ with Rule 29 of the Copyright
Guidelines.

COURT’S HOLDING AND REASONING

The Court docket held in favour of the Plaintiff and granted a
time-limited ad-interim injunction when it comes to prayer clause (a),
and the reasoning of the courtroom is defined under:

  • KAL Radio didn’t have a statutory license, and the discover as
    despatched to Sony India, was not absolutely compliant with Part 31D and
    Rule 29. The discover didn’t even comprise names of programmes,
    particulars of time slots, and length of interval of programmes, which
    are a obligatory prerequisite below Rule 29. KAL Radio didn’t have
    a logical or obvious foundation of its royalty computations as
    nicely.

  • Strict compliance of the Act and the Guidelines are essential, and
    one can not simply get by making ‘ample’ compliance.

CONCLUSION – THE TAKEAWAY

The most important takeaway from this order is that the Court docket considers
strict/inflexible compliance with Part 31D and Rule 29 to be an
important element of statutory copyright licensing. Mere sending
of a discover to a proper holder, doesn’t grant the get together a proper to
use the copyrighted works of the proprietor. There must be strict/
full compliance with the stipulations, to get a statutory
license. That is particularly essential as such statutory licensing
in essence deprives a copyright-owner of the liberty of selection in
licensing, and thus must be exercised below strict/proper
situations and protocols.

This latest order of the Bombay Excessive Court docket has struck a helpful
stability between the rights of the copyright house owners and public
curiosity. Whereas statutory licensing, within the eyes of many, stays
to be a fairly harsh side of IP jurisprudence, one which deprives
the unique rights of copyright house owners, this can be a case which
would instil some semblance of confidence within the minds of rights
house owners – that a minimum of there must be strict compliance with the
requisite legal guidelines, to get a statutory license.

This is able to additionally hopefully embolden proper holders of different
nations, to deliver their craft to India, safe within the information
that statutory licensing is one which might solely be exercised with
strict/inflexible situations. This case can also have a persuasive
impact on many different such related pending litigations. On this
regard, you might confer with our earlier articles on this matter at https://ssrana.in/articles/internet-broadcasting-statutory-license-section-31d-copyright/
and https://ssrana.in/articles/internet-broadcasting-and-section-31d-of-copyright-act-1957/.

For additional data please contact at S.S Rana &
Co. e-mail: data@ssrana.in or name at (+91- 11 4012 3000).
Our web site could be accessed at
www.ssrana.in

The content material of this text is meant to supply a common
information to the subject material. Specialist recommendation must be sought
about your particular circumstances.

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