Media houses and corporations pay huge amounts of money for exclusive right to broadcast events of national and international importance. Broadcasting organizations are given certain special economic rights in order to protect their investments. Per se the broadcaster’s rights are not based upon any creative work but a derivative work of other’s performance. In view thereof, the protection accorded to broadcasters is very limited in nature and thus needs to be protected adequately.
Initially, there was no provision in the Copyright Act which protected the rights of broadcasters and live performers. However, with an amendment in 1994, Section 37 and 38 were substituted with a new section that provided for broadcasting reproduction rights and performer’s rights
As per Section 2 (dd) of the Copyright Act, 1957, the term broadcast means communication to the public through wired or by any means of wireless diffusion. It also includes a re-broadcast.
Section 2 (q) of the Copyright Act, 1957 defines the term “performance” which is in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.
The broadcasting right is an independent subject-matter therefore the broadcasting authorities should obtain a license from the owners of the copyrighted content before broadcasting the work. Broadcasting without consent of the owner amounts to infringement under Section 51 of the Copyright Act, 1957.
Special Rights to Prasar Bharti?
The statutory provision under Section 3 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 mandates all contents rights owner to share broadcast signals of sporting events of national importance without its advertisements with the Prasar Bharti to enable them to re-transmit the same on its terrestrial networks and DTH networks. The said law was enacted in order to provide access to large number of viewers access national importance sporting events.
The Supreme Court of India in Star Sports India Private Limited vs. Prasar Bharati and Ors held that broadcasters of ‘sporting events of national importance’ must share the feed of the broadcast with Prasar Bharati free of all forms of digital commercial inserts such as advertisements, sponsor logos and credits.
The term ‘sporting events of national importance’ has not been defined in the Act. In this regard, the Ministry of Information & Broadcasting in consultation with the Ministry of Youth Affairs and Sports and Prasar Bharti determines and notifies a list of sporting events of national importance. As per the Government’s notification, the said term also covers certain matches irrespective of the participation of the Indian team. This is not just restricted to the sport of cricket but other sports such as Tennis, Football, Olympics, Asian Games, Commonwealth Games, etc. as well.
Further, it shall not be out of place to mention that a settlement agreement between Prasar Bharti and Star India establishes that certain important IPL matches shall be aired live on DD Sports after being delayed by an hour.
Non-compliance of the aforesaid law by the content owner shall invite penalties, including suspension or revocation of license, permission or registration for such violation. The amount of pecuniary penalty shall not exceed one crore rupees.
Broadcasting in Public Places
Apart from Prasar Bharti, every other private entity mandatorily requires permission to be taken from the content owner / broadcaster before further broadcasting it into any medium.
Live Screening of Cricket Matches
In Star India Pvt. Ltd. & Anr. v. Haneeth Ujwal & Ors., the Delhi High Court granted injunction against known and unknown defendants (John Doe) and websites hosting, broadcasting, and transmitting infringing content, the exclusive rights of which belonged to the Plaintiff.
While dealing with live telecast of cricket matches, the division bench of Delhi High Court held that the websites that predominantly host infringing content (rogue websites) could be blocked completely rather than a single URL being blocked.6
Further, as per Section 65B of the Copyright Act, 1957, any person who knowingly distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
Valuable Media Ltd. (VML) has the sole rights to screen IPL matches commercially in India. Recently, a hotel paid price for screening IPL match without taking any consent from VML.
Public Screening ICC 2019 World Cup
For screening of ICC 2019 World Cup, the International Cricket Council opened an online portal for parties interested in public screening of ICC Cricket World Cup for commercial and non-commercial purposes. It lays down guidelines, permissions and license fees for staging a public screening event. The International Cricket Council has identified Public screening events are classed as any commercial or non-commercial event where the ICC Cricket World Cup 2019 matches are made available for viewing by an audience, at locations which do not normally broadcast sporting events, such as beaches, parks, recreational areas, army bases, embassies and oil rigs.
With the advent of technology, broadcasting is no longer limited to radio, newspaper and television but also to internet broadcasting and live streaming. The major problem arises when the law does not evolve with technology. The emergence of internet has increased the number of problems in the statutory licensing for broadcasting. This majorly revolved around legality of internet broadcast and the ambit of coverage under Section 31D of the Copyright Act, 1957.
In this regard, the Hon’ble Bombay High Court in Tips Industries v Wynk Music, has held that Section 31D contemplates only television and radio broadcasting and not internet broadcasting. Further the court observed that section 31D of the Copyright Act has been used to exploit copyrighted works through either internet broadcast or download features, without seeking/ obtaining a license from the owners and therefore held that “such use of the copyrighted works, through internet broadcast or download features, without obtaining a license from the owners of the copyright amounts to usurpation of the exclusive rights of the owners to commercially rent, sell or communicate to the public their sound recordings.” In view thereof, no statutory license can be claimed by the internet broadcasters/ streamers, to exploit the exclusive rights granted to the owners/ licensee.