WYNK v. TIPS: Fate of Section 31D of the Copyright Act, 1957

WYNK v. TIPS: Fate of Section 31D of the Copyright Act, 1957

August 27, 2019

In a landmark dispute between the music streaming platform Wynk Music Ltd. and the music industry giant Tips Industries Ltd., a motion was filed by Tips Industries Ltd. (Petitioner) against Wynk Music Ltd. (Respondent), for copyright infringement under Section 14(1)(e) of the Copyright Act, 1957, seeking temporary injunction against Respondent for alleged violation of Petitioner’s copyright within its repertoire. The claims of the Respondent of ‘fair use’ and the repertoire being subject to Section 31 D of the Copyright Act, 1957, i.e. Statutory licensing were dismissed on the following accounts that:

1) Activities of Respondent cannot be termed as ‘private’ or ‘personal use’ or ‘research’ hence are not valid to avail the provisions of ‘fair use’.
2) Respondent selling / commercially renting sound recordings of Petitioner’s repertoire for their own commercial benefit, again put them out of the ambit of ‘fair use’.
3) The court clarified that internet broadcasting (online streaming) is not covered under the ambit of Section 31D of the Copyright Act, 1957

The Single Judge Bench of the Hon’ble Bombay High Court held that the Petitioner has made a prima facie case for grant of interim injunction against the Respondent.

Order: The notice of motion was allowed and interim injunction was granted on April 23, 2019. The series of event that followed after the Judgment was delivered can be briefed as under:
• On May 07, 2019 :it was clarified by the Single Judge Bench of the Hon’ble Bombay High Court that the order dated April 23, 2019 shall come into force from June 25, 2019. (The order can be found here & here respectively)
• On June 24, 2019:the matter by appeal is put before the Hon’ble Chief Justice Pradeep Nandrajog who listed the matter before a Division Bench for June 25, 2019. (The order can be found here)
• On June 25, 2019: the Division Bench, placed the matters on July 10, 2019 at 3.00 p.m through an ad-interim order, stating that the order of injunction passed by the learned Single Judge, was not to take effect until then conditional to the Appellant (Wynk Music Ltd.) depositing , in the Court, a sum of Rs.5crores by July 02, 2019. (The order can be found here)
• On July 04, 2019: The matter was mentioned at 11:00 a.m.: not on Board.: Ad-interim order to be continued till next date. (The order can be found here)
• On July 24, 2019: Stand Over.: Ad-interim order to be continued till next date. (The order can be found here)
• On August 07, 2019: The matter was mentioned at 11:00 a.m.: Out of turn: Ad-interim order to be continued till next date (August 21, 2019) (The order can be found here)

Conclusion:
The matter now rests in front of the Division Bench of the Hon’ble Bombay High Court. In view of the stay order, Section 31D as interpreted by the Single Judge Bench, now will either be reinterpreted to include the proposed amendments of the Copyright Rules or will reiterate the findings and reasoning of Justice S.J. Kathawalla. Either way, the judgment would be key to understanding the judicial intent regarding the scope of Section 31D.
In light of the Draft Copyright (Amendment) Rules, 2019 in which an effort has been made to bring the Indian copyright regime in parity with the technological advancements of the modern era, as the amendments intends to bring internet/online broadcasting under the purview of Statutory Licensing provisions of the Copyright Act, 1957. The much awaited judgment of this case can be an essential study

Tips Industries Ltd. v Wynk Music Ltd. & Ors. (Notice of Motion (L) No. 197 of 2018 in Commercial Suit IP (L) No. 114 of 2018 and a doorway for easing into the proposed amendments as well as help gauge the impact it will have on the functioning of Section 31 D of the Copyright Act, 1957.

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