Author(s): Nakul Singh

Abstract: In Simple parlance, copyright or author’s right denotes the rights which authors or creators have over their literary and artistic works. In the Indian context, the copyright discourse is regulated and governed by The Copyright Act, 1957 (“CA”). Amongst many other provisions of the CA which have been subject to numerous constitutional challenges in various courts of the land, one such provision is section 31D (“31D”) of the CA which was introduced by section 18 of The Copyright (Amendment) Act, 2012. In a nutshell, 31D stipulates that any broadcasting organisation desirous of broadcasting or communicating to the public at large any literary or music work or sound recording can do so, subject to certain conditions which have been prescribed under 31D itself. 31D has been subjected to various constitutional challenges in the Supreme Court and various High Courts on grounds of its conflict with Articles 14, 19(1) (g), 21 and 300A alleging that the provision 31D hinders or restricts reciprocal understanding between the licensees and the owner of the copyright rights and that 31D supports broadcasters in publishing the content and works of copyright owners without allowing the latter any say in the matter and thereby denying them their intellect reward or the fruits of their labours. However, one important, relevant and yet unexplored area is the constitutionality of the DIPP issued office memorandum, dated 5th September, 2016, issued under 31D. The office memorandum disproportionately widens the scope of 31D by holding that in addition to radio and television broadcasters, as the language of 31D applies to and suggests, even internet broadcasters and internet broadcasting falls within the scope of section 31D. The scheme of the paper is to subject this very clarification via the office memorandum to the scrutiny of the articles 14 and 19(1) (g) of the constitution.

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