Bombay HC restrains Airtel’s Wynk from commercial rental or sale of Tips’ library

MUMBAI: The Bombay High Court has restrained Bharti Airtel and its over the top (OTT) app Wynk from commercial rental or sale by way of allowing download in any manner, on its musical portal or Wynk App, of the songs from the repertoire of Tips Industries.

The telecom operator was further restrained from allowing interactive streaming of the said songs. The court also rejected the proposal of Wynk to allow it to broadcast Tips Repertoire over internet upon payment of the monetary deposit with the Court during the pendency of the Suit.

The common order has been issued on 23rd April 2019 in favour of Tips Industries in two Commercial IP Suits filed by it against Wynk and Airtel.

Commenting on the order, Tips Industries CMD Kumar Taurani stated, “The order manifests the provisions of 31-D of the Copyright Act in its correct perspective, which were hitherto being mis-utilised by various OTTs. He was positive that the OTTs and other service providing platforms will now approach the first copyright holders for providing licensed downloads of their music.”

Justice SJ Kathawalla observed that recently the music industry which has experienced a rise of OTT service providers, who seek safe harbor under Section 31-D to exploit copyrighted works, through either internet broadcast or download features, without seeking/obtaining a license from the owners thereof.

In his view, such use of the copyrighted works, through internet broadcast or download features, without obtaining a license from the owners of the copyright amounts to a usurpation of the exclusive rights of the owners to commercially rent, sell or communicate to the public their sound recordings.

The Court while holding that the Sale/Commercial rental of sound recordings in a digital medium through the internet was no different than done through physical modes had inter alia observed that the activities of Wynk and Airtel, enabling its customers to download sound recordings and access them offline in lieu of a monthly subscription fee was essentially renting out the sound recordings which clearly did not fall under the exclusions provided in the definition of ‘commercial rental’ and were a vivid instance of a commercial rental as contemplated under the Copyright Act, for which Wynk / Airtel did not have any such right, authorisation or permission of the Tips.