Constitutional Challenge to Rule 29(4), Copyright Rules Rejected by the SC – SpicyIP

In Next Radio Ltd. & Anr. v Union of India (SLP (C) No. 14373/2022), the Supreme Court (“SC”) has “disposed of as withdrawn”, a challenge to the constitutionality of Rule 29(4), Copyright Rules, 2013. The Petitioners sought permission to withdraw the Special Leave Petition, in light of an order passed by the Delhi HC in March 2024 in Super Cassettes Industries Pvt. Ltd. v Music Broadcast Ltd. (The order of the Delhi HC is discussed below).

Rule 29 in Chapter VIII (Statutory Licensing for Broadcasting of Literary and Musical Works and Sound Recordings) creates an obligation to give notice on broadcasting organizations:

1. To: The Copyright Owners and the Registrar of Copyrights
2. When: They are desirous of communicating to the public, by way of broadcast, or by way of performance; a published literary/musical work, and sound recording under Section 31D(1), Copyright Act, 1957 (Statutory Licence for Broadcasting).

The Rule further requires the broadcasting organizations to pay to the copyright owners, royalties as fixed by the IPAB in this regard.

Clause 4 of the Rules (subject of the challenge) details the particulars to be furnished in the notice. These include:

1. Name of the Channel;
2. Territorial coverage where communication to the public is made by way of radio broadcast/television broadcast/performance;
3. Details necessary to identify the work which is proposed to be communicated to the public by way of radio broadcast/television broadcast/performance;
4. Year of publication of such work, if any;
5. Name, address, and nationality of the copyright owners;
6. Names of authors and principal performers of such works;
7. Alterations, if any, which are proposed to be made for the communication to the public by way of radio broadcast, television broadcast, or performance of the works, reasons of the alterations, and the evidence of consent of the copyright owners;
8. Mode of the proposed communication to the public (radio/television/performance);
9. Name, if any, of the programme in which the works are to be included;
10. Details of time slots, duration and period of the programme in which the works are to be included;
11. Details of the payment of royalties at the rates fixed by the Board; and
12. Address of the place where the records and books of account are to be maintained for inspection by copyright owners.

The Petitioners contended that sub-clauses (c), (d), (e), (f), and (j) stretched beyond the scope of section 31D and placed an unreasonable burden on broadcasting organizations. For this reason, they were argued to violate Articles 19(1)(a) and (g) of the Constitution safeguarding the fundamental rights to freedom of speech and expression, and to practise any profession/carry out any occupation, trade or business, respectively. The Madras HC had earlier dismissed their challenge, by holding that Rule 29(4) is well within the scope of Section 31D.

How does the Delhi HC order come into picture?

It is important to look at the observations of a single-judge Bench of the Delhi HC (Justice Anish Dayal) here. Here, the Court observed that the payment of royalties is pegged to the prior notice of intent given by the broadcasting organizations. In this light, it assessed the compliance of the Defendants therein (Music Broadcast Ltd., Rajasthan Patrika Pvt. Ltd., DB Corp Pvt. Ltd., and TV Today Network Ltd.) with Rule 29(4). With reference to the clauses later challenged as unconstitutional before the SC by Next Radio Ltd., the Court made the following observations:

1. Clause (c):  Since the rates of royalties are “song agnostic”, and rather pegged on the basis of the duration and territory of broadcast, more details for identification were not necessitated.
2. Clauses (d)-(f): These details had already been provided by the Defendants.
3. Clause (j): The Court found that the Defendants had not provided the details of the duration and period in which copyright owners’ works were being included in different programmes. It was mutually decided that the Defendants would provide clarity on the same.

The Delhi HC listed the matters for August 13, 2024, and noted: “In this conspectus as narrated above, the immediate concern of the parties may be ironed out, subject of course to various other rights and contentions of the parties, which would be adjudicated as part of the suits.”

Based on the above, Next Radio Ltd. withdrew its constitutional challenge to Rule 29(4) before the SC. Hence, strict compliance as prescribed in Super Cassettes by the Delhi HC, and later emphasized by the Madras HC remains the norm.