[Broadcast of copyrighted music] "Appears somewhat unworkable:" Madras High Court issues notice in challenge to Rule 29(4) of Copyright Rules

The Madras High Court on Monday issued notice on a petition moved by a radio broadcaster challenging the validity of Rule 29 (4) of the Copyright Rules, 2013 (Next Radio Ltd and 2 ors v. Union of India)..Rule 29 (4) pertains to information to be furnished to copyright owners prior to the broadcast of copyrighted musical works, literary works etc. as part of the process to obtain permission to broadcast such content. .As per Rule 29, the information prescribed under Rule 29 (4) has to be furnished to the copyright holder five days before the proposed broadcast. The second proviso to Rule 29, however, permits broadcasters to furnish information within 24 hours after the broadcast as well, if unforseen circumstances arise (i.e it permits ex post facto notice as an exception to the Rule in unforseen circumstances). .Pertinently, as interim relief, the Court on Monday extended the time given under the second proviso to Rule 29 to "within fifteen days" after the broadcast, but subject to obtaining prior permission before the broadcast. .During the hearing, the Court also expressed that Rule 29 (4) appeared somewhat unworkable and that broadcasters, copyright owners and experts may have to sit together to revise the Rule in certain respects. The concern was also reflected in the interim order passed on Monday.."The best way forward may be for representatives of the radio and TV broadcasting entities and the major owners of copyright in musical works and literary and dramatic works to sit down in the presence of experienced draftsmen to work out the modalities and rework the entirely of Rule 29," the interim order stated. .The order was passed by a Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavulu after hearing submissions this morning by senior advocate Arvindh Pandian for the petitioners, senior advocate Satish Parasaran for Saregama music (one of three respondents) and Additional Solicitor General R Sankaranarayanan who took notice for the Central government (respondent 1). Apart from Saregama, Phonographic Performance Limited has also been impleaded as a respondent..Senior advocate PS Raman appeared for Sony Music, seeking to intervene in the matter. Raman informed the Court that the only concern is that there are multiple suits filed on non-compliance with Section 31D of the Copyright Act, which ought not to be affected by the present case. In view of the concern, the Court clarified the following in its order:"The order passed herein will remain confined to petitioners herein and the works of Respondent 2 and Respondent 3 that the petitioner seeks to exploit.".Super Casettes also orally submitted that they would like to implead in the matter. However, the Court told both Sony and Super Casettes to move applications for the same if they wished to get themselves impleaded. .The matter will be taken up on October 4. The respondents were directed to file their counter affidavits in six weeks' time..The law under challenge.The challenge is focused on Rule 29 (4) of the Copyright Rules, 2013. Rule 29 deals with "notice for communication to the public of literary and musical works and sound recordings." The Rule requires broadcasters to intimate its intention to broadcast copyrighted material to (i) the owner of the copyright and (ii) the Registrar of Copyrights before a period of five days in advance of the broadcast. Further, the Rule lays down that the broadcasters are to pay the copyright owner royalties due at the rate fixed by the Copyright Board. The second proviso to Rule 29 states, "in case of communication to the public by way of broadcast or by way of performance of any published literary or musical work and sound recording or any combination thereof, in unforeseen circumstances, the notice shall, be given within twenty-four hours of such communication to the public:Rule 29 (4) lays down various kinds of information or additional details that should be furnished by the broadcaster while giving prior notice under Rule 29. The information that must be furnished includes name of the channel, territorial coverage, details necessary to identify the work proposed to be broadcast, year of publication, name, address, nationality of the owner, names of authors, alterations proposed during broadcast, mode of proposed broadcast, the programme where the broadcast is to be done, details of time-slots, duration and period of programme, details of payment of royalties, address of the place where records and books of account are to be maintained for inspection by the copyright-owner etc.Rule 29 has been framed under Section 31D of the Copyright Act which deals with statutory licence for broadcasting of literary and musical works and sound recording.The Court recorded the petitioner's grievance that it is almost impossible to furnish some of the information sought for under Rule 29 (4) five days in advance, including information on time slots, duration or period of the programme etc. .Highlights of the Interim order and the Court's observations.The Court noted that although the petitioners have sought to confine the challenge to radio broadcasters, "the problem may be generic to all forms of broadcasters." Prima facie, there appears to be an element of unworkability about the Rules in that it may be seen to be almost claustrophobic in its operation and leaving very little room for flexibility, the Court said. The Rules may be difficult to implement when it comes to live programmes, the Court has observed. In this regard, the order noted that "indeed the very concept of ad-lib, which is the essence of spontaneity in any live speech or live performance, would be lost if pre-planned details, down to the very seconds of performance must be disclosed as the impugned Rule may be read to imply. The Court added that since the Rule is stated to be difficult to comply with by broadcasters and since it does not result in "any great monetary right to the owner", it may prompt persons to choose the route of compulsory licencing or direct licencing, which may not be the intention of the law not enure to the benefit of copyright holders. In this regard, the order stated "it is not as if that the Rule completely satisfies the owners of the copyright. Indeed, the concept of compulsory licensing may not be in the best interest of the owners or the copyright since such owners insist on consensual licensing terms to be obtained by intending broadcasters of their works." The Court proceeded to observe that even the time-period (24 hours from broadcast) for ex post facto notice in unforeseen circumstances under the second proviso to Rule 29 "appears to be unworkable" given the unexpected nature of programmes or the "virtual impossibility of controlling the duration of music or the number of songs or works that may be broadcast." As such, the Court suggested that stakeholders and experts sit together and work out how the Rule can be revised. For the moment, "considering the apparently onerous duty cast on broadcasters to furnish myriad details to obtain permission to broadcast works", the Court extended the time granted to furnish information under Rule 29 (4) to fifteen days from the date of the broadcast, instead of twenty-four hours, subject to obtaining prior permission before the broadcast. In other words, no work in terms of Rule 29 of the Copyright Rules may be broadcast without obtaining prior permission, but information on the time slot, duration and like, including the quantum or royalty payable, may be furnished within fifteen days of the broadcast or performance, the Court said. .Arguments made today.Appearing for the petitioners, Senior Advocate Pandian contended that it is impossible to give some of the information prescribed five days in advance. He argued that radio broadcasts are completely different from Television broadcasts. It would be difficult to predict what radio listeners may ask for on a live radio show, he pointed out. He added that the only concern of copyright owners is that their intellectual property rights are not infringed and that they do not lose out on royalties. While proposing that the time to furnish the requisite information may be extended by a month after the broadcast, he assured the Court that no royalty payment would be lost for the copyright holders and that their copyright would remain protected.Appearing for Saregama music, Senior Advocate Satish Parasaran countered that such extension of time would dilute the copyright-holder's rights. He highlighted that the purpose of Section 31D and Rule 29(4) is to give prior notice to the copyright owners so that they may keep a check on the exploitation of copyrighted content. It is the copyright holder's choice whether to give permission or not, he observed. He added that the Copyright Rules have been working since 2013 and that it is not as if this is a new case. He also informed that while the rules have been challenged in other courts, no interim orders were issued. Chief Justice Sanjib Banerjee, however, opined that prima facie Rule 29 (4) appeared to be unworkable. "It is clearly unworkable, because you cannot have a spontaneous basis. Sometimes in live programme, a team emerges victorious in a match, if he (a team player) sings in the middle of an interview, it would be violation of copyright. How would the interviewer know that the interviewee will sing a song in elation making the broadcast a violation of copyright?" he remarked. Senior Advocate Parasaran went on to assert that the requirement of prior notice to the copyright owner before broadcasts cannot be switched off. The Court, in turn, assured that the prior notice aspect will not be tinkered with. However, it proposed to make changes to the time within which the details mentioned under Rule 29 (4) would have to be submitted. In this regard, Parasaran pointed out that as per the second proviso to Rule 29, in cases of "unforseen circumstances" notice to the copyright owner can be given after the broadcast, "within twenty-four hours of such communication to the public"."The (prior) notice has to operate. This is an exception to Section 31, which is my absolute right. This is an alternative for their benefit, they can't seek further dilution", he contended. Whereas Chief Justice Banerjee proposed that the twenty-four hour window be extended to fifteen days as an interim arrangement, Pandian also weighed in that the petitioners are not asking for a waiver of the prior notice at all. The Court ultimately assured that it will not be passing orders to do away with prior notice, although it would extend the time period for furnishing information ex post facto under the second proviso to Rule 29."Permission you must obtain, but we dispense with furnishing of further details prior to broadcast and such details can be made post fifteen days from the broadcast ... Prima facie, many details required to be finished appear to be unworkable. We will not tinker with basic tenet that prior permission must be obtained. But further details may be furnished within fifteen days of broadcast for the period of two to three months till we hear the matter", Chief Justice Banerjee said..The Court also expressed its concern about the apparently unworkable elements of Rule 29 of the Copyright Rules. "You will have to ask your people to re-work this. You might have to sit with broadcasters and owners of copyright and experts of legal field and work out something more workable," the Court told the ASG..Have appeared for Saregama: Chief Justice.During the course of the hearing, Chief Justice Banerjee also disclosed that he had appeared for Saregama music during his days as a lawyer. He, therefore, left it to the petitioners to take a call on whether he should continue hearing the matter, in which Saregama is a respondent. Senior advocate Pandian, in turn, responded that this would be all the more reason for the Chief Justice to hear the matter since he has knowledge of the relevant law involved. "They have poor replacement with me, Milords", remarked Parasaran, who appeared for Saregama today. Pandian weighed in further that while there is a replacement, the replacement is not a "poor" one..[Read Order]