Compulsory Licensing in Entertainment: A Constitutional and IP Law Reassessment of the Balance Between Innovation and Access

Introduction: Redefining Cultural Access in the Age of Platformization

In the present day, platform-driven entertainment systems, the delivery of cultural products, whether it is music, cinema, or digital media, is not interceded by state organisations but instead, by privately owned intermediaries. The ownership of huge IP portfolios by streaming platforms, digital broadcasters, and global tech conglomerates is making the question of equal access more topical than ever. It is against this background that compulsory licensing can be understood as a law tool that is supposed to curtail monopolistic gatekeeping practices by permitting the use of a copyrighted work without seeking the prior permission of the work, provided a royalty that is determined by the government is paid.

Nonetheless, such licensing, especially when applied to the entertainment sector in India, is a subject of high constitutional and intellectual property (IP) conflicts. Although aimed at the democratisation of access to creative materials, how compulsory licensing is currently conceived and operated tends to create juridical discrepancies, procedural ambiguities and constitutional tension, largely so when considered in the prism of fundamental rights.

Compulsory Licensing under Indian IP Law: The Current Legal Framework

The Indian Copyright Act, 1957 has an elaborate composition on compulsory and statutory licensing. Compulsory licenses under certain situations, like when a work is not made available to the public or when it is denied to be performed, are contained in sections 31, 31A, 31B and 31C. Most importantly, Section 31D, which was inserted by the 2012 Amendment, permits broadcasting organisations to publicly communicate literary and musical works without obtaining the prior consent of the rights holder provided they pay royalty rates that were notified by the Intellectual Property Appellate Board (IPAB) (now abolished) or as may be notified by the Copyright Office.

Although these provisions have proved essential in deterring content hoarding, especially by music labels and production monopolies, they have also resulted in court battles over Procedural fairness and economic justification. The rights holders have complained that the compulsory licenses, especially Section 31D, are an unfair burden without providing a corresponding protection in a process that is not fair

Constitutional Dimensions: Interlinking Articles 14, 19, and 21

Compulsory licensing does not flow in a constitutional vacuum. Its validity should be weighed against the doctrinaire principles of equality, freedom of speech, commerce, and the right to live with dignity.

Article 14, which provides the equality before the law and non-arbitrary state action, directly clashes with the statutory licenses that are imposed without procedural standards set out clearly. The Bombay High Court (BHC) in Music Broadcast Ltd. v. Tips Industries Ltd. (2021) stated that the broadcasting firm could not unilaterally engage Section 31D without following the formalities of procedure. The Court also highlighted the need for transparency and accountability, and copyright owners are entitled to be notified and remunerated fairly. This case revealed the constitutional flaw in the statutory licensing scheme of India, the processes of which are not clearly defined, and the rates are not uniform, resulting in unequal burden among the similarly situated rights holders.

In the same way, Article 19(1)(g), which provides the right to practice any profession or engage in any occupation, trade or business, is also engaged when the creators are coerced to license their works without a fair hearing or sufficient remuneration. Although Article 19(6) allows imposition of reasonable restrictions, the restrictions should be proportional, least impairing and justifiable. In Indian Express Newspapers v. Union of India (1985), the Supreme Court (SC) declared that any limitation to commercial speech or trade should pass the test of proportionality, and it should not excessively interfere with the economic freedom of those who create the content.

Further, Article 19(1)(a), that is the right to freedom of speech and expression, has increasingly been interpreted to include artistic speech and derivative creativity. Statutory licensing regimes which do not distinguish between commercial exploitation and transformative use risk chilling legitimate expressive activity. This right to remix, reinterpret, or critique copyrighted material is at the basic level of the cultural discourse, particularly in the digital medium, where user-created content prospers.

Also, therefore, the broad meaning attributed to Article 21, as established in Anuradha Bhasin v. Union of India (2020), in which the right to access the internet was declared as part of the fundamental freedoms, provides the basis of arguing that access to cultural content is vital to the right to live with dignity. Considering entertainment law, where hoarding of content occurs beyond the commercial paywalls or even unreasonable licensing refusal, this may lead to a denial of the right of cultural participation and growth by the citizens.

Global Perspectives: Compulsory Licensing in Comparative Jurisdictions

The statutory licensing regime in India should be weighed against international standards to know whether it strikes a substantial balance between innovation and access. A limited compulsory license to musical compositions is given in the United States (US) under 17 U.S.C. § 115. It is, however, managed by the Mechanical Licensing Collective (MLC), which has a strong framework for negotiating and determining royalty rates. The rights holders are guaranteed periodic revision, right of contestation and opt-out mechanisms, making sure that constitutional issues of due process and fairness are taken care of.

Compulsory licensing is also limited in the European Union (EU) by the EU Copyright Directive (2019/790), which encourages a more negotiated approach, and compulsory licensing represents an exception. EU member countries such as Denmark and Sweden use the extended collective licensing (ECL,) where collecting societies are allowed to license both members and non-members. Nevertheless, this model is underpinned with great procedural protections, including opt-out rights, consultation with stakeholders and judicial oversight. Significantly, these jurisdictions appreciate that licensing should be context-based and blanket licensing risks creating disincentives to creators and platform diversity.

South Africa, on the other hand, provides a cautionary tale. The Copyright Amendment Bill, 2017, had broadened compulsory licensing and fair use to an extent that attracted sharp criticism from artists and industry players. Opponents to the bill called it flawed because it undervalued creators and was procedurally unclear; similar challenges are now encountered with Section 31D of the Indian Copyright Act.

These international examples highlight the importance of institutional transparency, creator freedom of expression and judicial accountability, which are usually absent or poorly implemented in the statutory licensing system of India. The model of a future-orientated Indian has to be based not on the strict statutory requirements but on the negotiated, participatory and technologically responsive frames.

Balancing Innovation and Access: A Constitutional Imperative

The future of compulsory licensing in the entertainment industry cannot be driven simply by economic necessity or the convenience of distribution. It should be embedded in a constitutional rational framework, which honours the expressive and commercial agency of content makers and which cultural access is not the preserve of privileged consumers. The object is not to abolish the compulsory licensing generally but to reshape its contours in such a way that it can serve as an instrument of constitutional balance, as opposed to the instrument of regulatory excess.

India should look at setting up a Copyright Licensing Tribunal, like the Copyright Royalty Board of the U.S., to adjudicate on disputes, determine royalties more dynamically and look at reviewing statutory rates every few years. Moreover, the introduction of the aspects of the ECL model, which include powerful opt-out rights and transparent digital registers, can facilitate the balancing between the privacy of creativity and its accessibility to the public.

Conclusion: Towards a Constitutionally Attuned Licensing Ecosystem

The hope of compulsory licensing in the entertainment law is its normative capacity to reconcile the imperatives of access, innovation, and equity. But this promise will be only illusory unless the regime is redesigned to show the procedural values of Article 14, the expressive dignity of Article 19, and the participatory vision of Article 21. As content consumption becomes increasingly digitised, the state should not only legislate but also physically shape an environment in which the rights of all parties involved, creators, platforms, and the populace, can be balanced following the principles of constitutionalism.

Author: Vedansh Raj, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.