Section 31D of the Copyright Act – What it permits and What it prohibits – interesting dispute between Tips and Wyank
Commercial Appeal No.424 of 2019 with connected matters – Wynk Ltd and another Vs. Tips Industries Ltd. Decided on 20.10.2022 and available on the website on 29.9.2023
Tips holds copyright in a very large repertoire of more than 25,000 sound records. Wynk owns and operates an online internet based “music streaming service” and has music OTT facility.
Negotiations for Tip’s repertoire for two years for Rs.4.5 crores were held from October 2016 until March 2017 but without execution of a formal document. This was disputed by Wynk. Tips demand Wynk to desist use of its repertoire from 10.5.2017 but Wynk did not comply.
On 17.11.2017, Tips demanded royalty of Rs.2.38 crores and directed Wynk to deactivate its entire repertoire from its platform.
Wynk asserted its right as “broadcaster” and invoked Section 31D of the Copyright Act, 1957. It had sent demand draft of Rs.1.41 crores for September 2016 to November 2017 by calculating on its own the royalty at 10 paise per stream and market shares & conditions.
Tips filed two commercial IP suits against Wynk for infringement actions – one relating to downloading facility and another relating to on-demand streaming service. Defendant No.2 in both suits is Wynk’s holding company Bharati Airtel.
Wynk claims that section 31D does not say about internet and does not prohibit internet based radio-like or non-radio-like services.
Tips claims that Section 31D is limited to traditional radio and television only.
HELD that the reasons given by the learned Single Judge that statutory licences under Section 31D are restricted to traditional non-internet based radio and television broadcasting and performances lone. Section 31D has no application to any internet-based offering. The appeals were disposed.
