As members of the Rajya Sabha get set to debate the provisions of the Copyright (Amendment) Bill, 2010, there’s one issue that is sure to come up in the course of the discussions. With the HRD ministry narrowing the definition in S.31D (relating to statutory licensing) to include only ‘radio broadcast’ and excluding television broadcasts, television networks are up in arms and are expecting a reasonable explanation for the exclusion, when the bill is debated in parliament.
The earlier provision read as follows:
31D. (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.
The proposed amendment now, is:
31D. (1) Any broadcasting organisation desirous of communication to the public by way of a radio broadcast of a literary or musical work and sound recording which has already been published may do so subject to the provisions of this section.
Essentially, the amendment would restrict the applicability of statutory licensing provisions to radio broadcasts only, denying the benefit of its application to other forms of broadcast and through other mediums of consumption. So for instance, content on mobile phones, tablets and televisions will not fall within the ambit of this clause. Television broadcasters would now have to pay exorbitant royalty fees to transmit sound clips over which the various music companies such as T-Series, retain ownership. This directly impacts the rights of television broadcasters who would have to pay more for broadcasting the same content, which would be made available to radio broadcasters at a much lower fee, in view of the provisions of S.31D. This is aside from the fact that radio broadcasters would be granted automatic permission to transmit these audio clips under the compulsory licensing system, in high contrast to television networks, who would have to seek specific permission for each audio clip, since they no longer fall within the ambit of the statutory licensing provisions in the Indian Copyright Act.
Reports indicate that the Indian Broadcasting Foundation (IBF) and the News Broadcasters Association (NBA) have expressed their opposition to the amendment and it is to be seen what response they manage to extract from the parliamentarians in this regard. It does seem a little ridiculous that audio clips are subject to statutory licensing provisions with lowered licensing fees in respect of radio broadcasts, but this is not the case for television broadcasts. While one may argue that radio is restricted to transmitting purely audio content and hence should receive such a benefit, while television broadcasts possess a much broader spectrum of content, it must be remembered that several television channels run purely on the broadcast of songs on television. Whether a rational explanation can be provided by the HRM ministry, is a question that will have to wait to be answered.
I would really request you guys to assess the law (or proposed law)more carefully before making half baked comments. Radio Broadcast is clearly being provided the benefit of statutory licensing because the medium is essentially “free to air” and hence perhaps from this perception may claim a degree of protection (or sympathy). On the other hand, commercial TV Broadcasting still retains the benefit of a compulsory license challenge (Section 31 remains)- i.e. it will have to negotiate, be refused or be aggrevied by an unreasonable claim by an copyright owner and have the ability to approach the Copyright Board (something which seems to have worked in the past)on a case by case basis – surely this is fair enough given that commercial TV has a direct relation ship with paying subscribers (as opposed top FM Radio)and hence I would think an enquiry on a case by case basis (of revenue potential, profits etc) would be warranted in the case of commercial TV. Interestingly commercial TV Broadcasters have not been provided the ‘benefit’ of statutory licensing in many countries. Still see a conspiracy?
What when a situation comes where there are Radio channels that offer a PAID subscription service similar to Sirius-XM in the US or Worldspace as it existed back in the day. Would these also then be given the benefit of the same “free to air” logic?
of course not- but blame shoddy drafting on this gap- surely this cannot be the reason to include TV.
I agree with VALIDSONG. TV Broadcasters command extremely high advertising rates apart from also being subscribed to by consumers. As pointed out by VALIDSONG, TV broadcasters can resort to the compulsory licensing provisions of the Act as has been done by Zee Telefilms.
I’m sorry, but I have to disagree with all of you: it has nothing to do with free to air or paid services, or being a selective discrimination by Parliament.
Parliament cannot legislate for blanket licensing to TV broadcasters because, unlike radio, that is in the domain of sync licensing – a right that the Performing Right Society has not been assigned by any member: members of IPRS have given it only their performing and mechanical rights.
But nothing will prevent the new Society to issue blanket licenses to broadcasters for background music if its members agree to do so – which they should. Nevertheless, I expect that members would want to retain their right for issuing sync licenses whenever their music is used as the theme of a program or associated with an advertiser.
Someone to prove me wrong?
Just saw a massive mistake in the Amendments; the following clause should read:
“Provided further that the business of issuing or granting BLANKET licenseS in respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act:;
A collective management society is not in the business of issuing individual licenses. Who has drafted these revised Amendments?
Thanks Chantal:
I see your point and agree with you, but to a limited extent.
To me, it appears that the governmment must make out a valid case for this differentiation. And to this extent, all the reasons offered by you and the previous commentators appear valid. The potential justifications could be:
1. FM Radio is a new industry that the government is actively trying to encourage. This industry does not have the kind of deep pockets that TV channels have. Therefore, FM radio requires more state support and protection than does TV, which is a traditional strong industry with powerful lobbies and deep pockets.
2. Secondly, radio is almost always a free service (paid for by ads only), whereas most TV channels are subscription based. Therefore a compulsory license and lower licensing fees would greatly help Radio.
3. Thirdly, most of the audio content today (re: music) is licensed from two collecting societies, PPL and IPRS. A radio broadcast merely requires the licensing from PPL and IPRS. Whereas a video broadcast (through TV) would also require a license over visual content—making it a much more complex area for licensing.
This last point is the one you are attempting to raise. But i would argue that the very fact that licensing over visuals is more challenging (with more single owners that one might have to approach) makes it more amenable (from a policy perspective) for compulsory licensing. It reduces transaciton costs and enables greater access to content whilst ensuring the content owner is remunerated appropriately (assuming of course that the Board gets it right).
Personally, I am a big fan of compulsory licensing and think that, as a country, we need to move more extensively to a compulsory licensing regime for the future. Since it is a good way in which we can remunerate the IP owner and also ensure that the content is more widely accessible and available.
So what if this has not been done before in other countries. Why should we always follow in their footsteps?
Hi Shamnad,
Let’s look at practice. A TV channel either produces its own programs or licenses them from producers. In both cases, the program needs music to be synched to it. Where is the need of licensing visuals? They produce the visuals! That’s the way the business works globally and I don’t see what’s unique to the Indian market.
Obviously, compulsory blanket licensing is the future for some of the rights – performance and mechanical – and the European Commission will present a legislative proposal to this effect early next year. So we are going int the right direction here.
But where is the need to implicitly extent blanket licensing to ALL the rights? What’s then the use of being owner of rights if you cannot exercise them? Collective licensing is the solution to a particular problem – not a Swiss knife solution. The best introduction I could recommend is “Collective Management of Copyright and Related Rights” by Dr Mihaly Ficsor (WIPO).
And where is the need to address a particular industry (radio in this case) in a legislative document? Just state that blanket licensing can be done only through a Society, that will serve the purpose.
The reference to radio broadcasting is irrelevant, frustrating, causes confusion and should be removed. To draft a Copyright Act, it is not enough to be an expert in Copyright law, one must also have an inside, practical knowledge of the business.
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I think you’ve missed the point completely. Or perhaps I didn’t communicate it well enough. so let me try again. Most sound recordings (and underlying works) are covered by PPL and IPRS—which makes it much easier at the transactional level re: licensing. With videos however, it gets more complicated, since there are visuals. Nobody suggested that the copyright owners over visuals and sounds would be different re: a video in all cases. Just that in a video broadcast, you have visual content as well. And to the best of my knowledge, there are no collecting societies for audio-visual content. This essentially means that a potential licensee must transact individually with each copyright owner—raising transaction costs. A compulsory license obviates that. In short, with pure audio licensing, given the existence of PPL and IPRS, what a CL might do is to bring down your licensing rates. With audio visual, you have the added burden of huge transactional costs. So a CL here might reduce this as well significantly. And thats where I see the true value. Funny that you mention that angle of “having business knowledge” for drafting copyright legislations. For the most part, copyright regimes have reflected industry lobbies and industry interests. Very business centric, I would add!
I fail to understand how audiovisual rights can be licensed collectively. Can you give me one concrete example? Or name a single Society in the world that licenses these rights?
Another point. Collective licensing evolved in the mid-19th century to discharge tasks that where to complex or too onerous to be performed by individual rights owners, such as collecting performing royalties from restaurants, shops, etc. But you cannot extend collective licensing to every aspect of licensing like the revised Amendments seek to do because you will impinge on the right of the owner(s) to exercise control over their property. Though substantially different from goods, IP is a property nevertheless.
why not? as someone once rightly remarked: our greatest poverty is the poverty of imagination. Why cant we subject audio-visual content to collective licensing? what is so inherently intractable about this content that makes it difficult to peg it within a collective licensing hole? just because other countries have not done it earlier, why can’t we do it? secondly, there is a distinciton between collective licensing and compulsory licensing. Most of my points refer to compulsory licensing–not to collective licensing. you have to bear this distinction in mind. As to whether or not IP is property, there are extensive debates and people who argue on both sides of the fence. Some would strongly suggest that we move towards a liability rule framework. Look around you and you will see that even in the most entrenched of IP regimes such as patents (where the property nexus was often the strongest), judges refuse to grant routine injunctions—preferring rather to subject defendants effectively to compulsory licenses. Promote access and remunerate owners: seems like a good policy call to me. And the sooner we recognise it, the better.
i meant to say: “the sooner we recognise this shift in policy, the better…”
Dear Shamnad,
Temerity is not always a virtue. Anybody can say “Why can’t we…?” The real question to consider is “How can we? How will it work? and why haven’t others done it before?”. As long as you have no clear answer to these questions it is foolish to legislate on the issue. Surely, one shouldn’t legislate in ignorance?
Same goes for “Is intellectual property a real property or not?” Don’t you find it curious that those who raise this question are people who, though they may be doctors of law, have never created an IP or invested in an IP or licensed IPs? From the bundle of rights a copyright represents, we must distinguish which of these rights need collective licensing and which need to be licensed individually by their owners. The compulsory licensing system that was introduced in India was caused, not ny an inherent disability in the copyright system but by the archaic nature of the film and music industries and their unresolved conflict of interests – many of which have been reported and uncovered in detail in this great blog of yours.
It is not enough to read books or be a professor of law to draft a legislation, one must have a practical, business experience of the copyright system: how it works? how rights flow? where the bottlenecks are? why these bottlenecks are there? Are they particular to this market or global? in which direction are the creative industries evolving?
I have dealt at some length on this issue because it is crucial to a just, smooth and buoyant market.
ahhh. how predictable? the same old argument…being rehashed time and again. We’re industry…and we know exactly how to run the IP system! None of you have a say…after all, you’re mere consumers of our products….and since we are the creators, it is we who dictate the shape of these regimes…
Excuse me…and who speaks here? a creator? or a mere middle man? the IP dalal and the packager who often walks away with the lions share of the proceeds in the name of protecting the creator. And forget the arrogance of the sentiment that none of us create. We do create dear sir (and i refer to “sir”, since i assume its you, Mr Forler taking refuge under your wife’s name) ..and do save a pardon if I’m mistaken on that count.
in fact, this very comment of mine is copyrightable (copyright basics: 1.0) ….and so are the vast majority of our writings that we humbly put out…unfortunately, we may not have a dalal to market our wares….and prefer open access………we’re certainly not in the big publishing game…but does that make us any less important in articulating our views?
we certainly create…and even if we dint, we are the public and IP regimes are meant to serve us as well.
We have the right to think and propose….rather than relying blindly on industry assertions..particularly when all we’ve seen are status quoist arguments…and conservative models that refuse to budge without the interference of folks that have the temerity to challenge existing business models (napster..etc etc)…
Unfortunately, protecting turf does not always translate to public interest, an interest that should be right on top of the “interest” list when it comes to creating IP legislations.
Lastly, this is not a pie in the sky argument . Take a look around you…what do you see? the Google Books settlement…the ebay case…. more works being subject to collective licensing and to pools…..do you see a shift?….a sign of things to come…..look up something that economists call liability rules –some of them have been terribly prescient…despite not having functioned as IP dalals…
You may need to get out of your comfortable cocoon to appreciate these arguments that threaten your status quoist world! funny we speak about protecting creativity and innovation. and all the while our regimes remain for the large part rooted in a conservative framework devised ages ago! and we remain averse to any experimentation on this count. So much for risk taking and creativity!
ps: for the record, i had nothing to do with any legislative drafting on the copyright front, apart from pushing for a wider clause for the disabled, which we finally got. Like you, book publishers are up in arms with similar sentiments….that we’ve never handled real IP and therefore have no business interfering with law making on behalf of under-privileged stakeholders that are considerably weaker in influence than them.