Bombay HC sets key precedent on copyrighted music playback

In a landmark ruling, the Bombay High Court has just made a game-changing decision regarding the use of copyrighted songs. According to the recent judgment dated October 20, 2022 (uploaded to the High Court website on September 29, 2023), statutory licenses for playing copyrighted music can only be claimed for traditional broadcasting platforms like television and radio. This ruling came in the case of Wynk Ltd & Anr. vs. Tips Industries Ltd.

In simpler terms, the provision for statutory licenses, as defined under Section 31D of the Copyright Act, is now limited exclusively to non-internet-based broadcasting services, including radio, television, and stage performances. Internet-based services, like music streaming platforms such as Wynk, are not covered by this provision.

The division bench, comprised of Justices GS Patel and Gauri Godse, upheld a previous judgment that Airtel-owned digital music app Wynk Limited cannot use music owned by Tips Industries without obtaining their consent, even if they attempt to invoke the statutory broadcasting rights under Section 31D. This section allows public broadcasting upon notifying the copyright holder and paying prescribed royalties to the Copyright Appellate Board.

The bench explained that traditional radio and television services simply allow users to tune in to access content, giving them no control over it. In contrast, internet-based services like Wynk offer the ability to download digital audio files, although this feature typically requires an additional fee. Importantly, the bench considered making audio files available for offline use as a form of commercial rental.

As a result, the division bench conclusively stated that statutory licenses under Section 31D do not apply to any internet-based service. They affirmed that these licenses are exclusively meant for traditional non-internet-based radio and television broadcasting and performances.

The legal dispute leading to this groundbreaking ruling began in April 2017 when negotiations between Wynk and Tips Industries over the use of copyrighted songs on Wynk’s platform fell apart. Tips Industries demanded that Wynk cease using their copyrighted songs and issued a cease and desist notice effective from May 10, 2017.

However, Wynk continued to use the songs for an additional ten months. In November 2017, Tips Industries requested a royalty payment of ₹2.83 crores for the use of their copyrighted music. In response, Wynk invoked its rights as a ‘broadcaster’ under Section 31D and unilaterally determined that the royalty owed for the period from September 2016 to November 2017 amounted to only ₹1.41 crores.

This prompted Tips Industries to take legal action, leading to a single-judge ruling in their favor. Subsequently, Wynk appealed the decision before a division bench.

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