Introduction-

The past three decades, have seen a tremendous growth in the media and broadcasting industry. A lot of credit for the same has to be allocated to the latest technological advancements, the age of the internet, and increasing talent been showcased by creators. Gone are the days, when the broadcasting and media houses had to scavenge through a large pool of people to select the right face, now, they are simply spoilt for choice. With the advent of social media, almost everyone gets inspired, and decides to share their original works on public platforms. However, when such works are shared amongst the general public, questions regarding originality, and accountability arise. Along with that, counterfeiting, and blatantly copying of original works of others are also problems which crop up. These problems leave the media industry often crippled, and if not dealt with properly, may even lead to their downfall. Hence, it is important to understand what are the rights which the media houses being a broadcaster have over the intellectual property of their contributors, and how can they be enforced.

What is broadcasting, and who is a broadcaster?

As per the Merriam Webster Dictionary, to broadcast means, “to send out or transmit something, such as a program by means of radio or television or by streaming over the internet.”[1] In India broadcasting is managed by the Ministry of Information and Broadcasting, which is liable for controlling all substance to be communicated on private satellite TV stations and transmitted through digital TV systems.

According to the Berne Convention[2], broadcasting means, “emission by wireless means, for members of the public.” As per the Copyrights Act 1957[3], a broadcast means, “any communication to the public either by means of any wireless diffusion, or by wire, and also includes a re-broadcast.” However, what is nowhere defined is the concept of ‘broadcasting organisation.’ With the kind of advanced technology that everyone has these days, through mediums of smart phones, tablets, and computer devices, anyone can be a broadcaster by uploading, livestreaming, downloading, recording, their own content. Therefore, it becomes difficult to differentiate between an individual copyright holder broadcasting his own work, and a broadcasting organisation, broadcasting the copyrighted works of others acquired through a statutory license. Hence, based only on the definition of ‘broadcast’, following would be considered as broadcasters-

·       Individual copyright holder, broadcasting his own works

·       Government broadcasting companies (E.g. Doordarshan, All India Radio, etc.)

·       Private broadcasting companies (E.g. Zee Entertainment, Dish TV, etc)

·       Internet broadcasting companies (E.g. Alt Balaji, Netflix.in, Youtube.com)

What are the rights of the broadcasters?

Primarily, it is the Copyrights Act of 1957 which speaks about the rights of the broadcasting organisations. Generally, it is the author or the other owner of the copyright, who can authorise the performances or presentations of his copyrighted work on a public platform. The Copyrights Act was amended first in 1994[4] and later in 2012[5] to extend the scope of rights which were available with the broadcasting organisations. Essentially, what the broadcasting organisations have is a special kind of right. They do not have a right over the copyrighted material, but have neighbouring rights over that broadcast in itself. Section 37 of the Copyrights Act deals with the rights of broadcasting organisations. Usually, this special right subsists for about 25 years from the beginning of the calendar year next following the year in which the broadcast is made.

Broadcaster’s right to statutory licensing (Section 31D)-

Through the 2012 Amendment, Section 31D was introduced. This section allows the broadcasting organisation to broadcast already published works. But this has to be done subject to certain conditions prescribed within the section –

a)     The broadcasting organisation has to give prior notice to the copyright owner in a prescribed manner indicating its clear intention to broadcast such work, stating the duration and jurisdiction of such broadcast.

b)    The broadcasting organisation has to pay royalty at the rate decided by the Copyright Board.

c)     Royalties may include an advanced payment to the owners of the copyright.

d)    Names of the authors have to be clearly announced and shown during the broadcast.

e)     Except for technical alteration, and shortening of the work, no other alteration can be made without the consent of the copyright owners.

However, while a case is in dispute, the Court is not empowered to direct the deposition of a sum with the Court to grant the Broadcasting Organisations a right to exploit the copyrighted works to gain a commercial advantage, till the case is decided, as that would amount to grant of compulsory license, which is outside the Court’s purview.[6]

Section 31D was challenged to be unconstitutional in the case of Super Cassettes Industries Limited vs. Union of India[7], wherein it was argued that the section gives unfettered powers to the broadcasting organisation to obtain a statutory license, whereas, the same power does not rest with the copyright holder. However, the court after careful analysis, found no meaning in declaring the section to be unconstitutional, and stated that, these provisions have been included within the Copyrights Act to have balance of power, by letting the music labels to collaborate with the broadcasting organisations by obtaining licenses, to make copyrighted works available to the general public.

Various representations were made in front of the Ministry of Commerce and Industry, indicating that internet broadcasting companies should also be brought within the purview of Section 31D of the Copyrights Act. Therefore, the Ministry of Commerce and Industry after careful examination, stated that since the section allows any broadcasting organisation desirous of communicating to the public to obtain statutory license, it is not restricted only to radio and TV broadcasting organisations, and would include all kinds of broadcasters, including internet broadcasters. Therefore, through an Official Memorandum published on 2016, the government brought the internet companies into the ambit of Copyrights Act. Later the validity of this Circular was challenged at the Bombay High Court, in the case of Tips Industries Limited Ltd. Vs. Wynk Music Limited. and another. In this case, Tips Industries Limited was the copyright owner of about 25,000 sound recordings. Wynk Music Limited, which is an online music streaming application, had sought a contractual license from Tips for its online streaming services. When it came to renewal of the said license, due to some internal qualms, the deal could not materialise, after which Tips Industries Limited issued a cease and desist notice to Wynk for immediate deactivation and removal of their content from Wynk’s online platform. In reply to that notice, Wynk took support of Section 31D of the Copyrights Act and the 2016 Official Memorandum, and held that they were a broadcasting organisation by virtue of this section, and therefore they were entitled to a statutory licence thereunder. While dealing with this case, the Bombay High Court stated that Wynk cannot be allowed to continue using the sound recordings of Tips Industries Limited without their authorisation. Wynk would not be allowed to gain any commercial advantage out of this failed deal, without the permission of Tips. Court noted that the Official Memorandum is in contrast to the Government’s own stand on the matter taken in the report of the Standing Committee on Copyright and Related Rights, negotiation the proposed broadcaster’s treaty by WIPO. Hence, this judgement overruled the Circular, and thus excluded internet broadcasting organisations from the ambit of the Act. This way, the copyright owners now are placed at an equal footing with the broadcasting organisations, whereby, in absence of any valid agreement between the two, the case would always be decided in favour of the former.

Reproduction of Broadcast versus Re-broadcast-

Broadcast reproduction and re-broadcast, are both essentially rights which the broadcasting organisations hold. Section 37 of the Copyright Act gives the broadcasting organisations an exclusive right called as broadcast reproduction right. As per this right, the broadcasting organisations have a right to reproduce the broadcast for a period of 25 years from the year next following in which the broadcast was first made. Hence, this implies the following timeline-

·       Creation of a copyrighted work by an individual

·       Obtainment of statutory license by broadcasting organisation under Section 31D

·       Broadcasting the work obtained through such a licence by the broadcasting organisation

·       Reproduction of such broadcast by the broadcasting organisation

Since the Copyright Act does not mention what exactly amounts to reproduction, the definition given by Rome Convention[8] can be looked at, which says that ‘reproduction of a broadcast means making copies of the work or copies of such broadcast.’

As per the definition of broadcast within the Copyrights Act, a re-broadcast is included within the definition of a broadcast. However as per Section 37, any person other than the broadcasting organisation or other licensed holder, if re-broadcasts the broadcast made by the broadcasting organisation, such an act would be considered as infringement of the broadcast reproduction right of the broadcasting organisation. Hence, the following timeline can be established-

·       Creation of a copyrighted work by an individual

·       Obtainment of statutory license over such copyrighted work by a broadcasting organisation under Section 31D

·       Broadcasting the copyrighted work by the broadcasting organisation

·       Re-broadcasting of the broadcast made by the broadcasting organisation without the permission of the broadcasting organisation or the copyright owner

Therefore, we can see that, if a re-broadcast is done by the broadcasting organisation itself, it is not considered illegal, but if the same act is done by any other person who is unauthorised, the same amounts to infringement. As per the Rome Convention, re-broadcast means ‘simultaneous broadcasting of a signal belonging to some other broadcasting organisation.’

Exclusive rights of Broadcasting Organisations-

The Courts in India while deciding cases of reproduction and re-broadcasting have kept the concept of public interest in mind. In the case of Star India Private Ltd. vs. Piyush Agarwal and others[9], Star India Private Limited had a statutory license of broadcasting the cricket matches organised by the Board of Control for Cricket in India (BCCI), for 72 hours from the actual cricket match taking place. BCCI on its own was in the habit of collecting certain information released by its viewers and fan base, such as ball by ball or a minute by minute score updates and match alerts, which it circulated amongst its viewers through mobile messaging services. Therefore, Star India filed a suit against BCCI for infringement of its exclusive rights. However, the court distinguished between the kind of information which is disseminated by Star India and BCCI. The court held that since match information and updates are essential facts which the public should know, BCCI cannot be prevented from disseminating such information. But, due to the agreement between Star India and BCCI, the court allowed BCCI only to broadcast such information after a time lag of 15 minutes from the actual broadcast. However, the court also specified the kind of information which BCCI can broadcast, and limited the same only to mobile messaging alerts, and mentioned that the original audio or visual recording cannot be used.

A similar stand was taken by the Delhi High Court in the case of New Delhi Television Ltd. vs. ICC Development International and another[10], wherein the court held that dissemination of information such as match updates is essential from the point of view of public interest, and hence the same can be done by other individuals or organisations who do not have an exclusive statutory license. But if they want to use such information, and footage from the matches in future, they would have to enter into statutory agreements either with ICC, or the broadcasting organisation which has been assigned the broadcasting and reproduction rights.

Hence, through these judgements, the courts have tried to dilute the exclusive rights approach which the Copyrights Act portrays in consonance with the WIPO regulations. Although the broadcasting organisations have a statutory license to broadcast the copyrighted works of others, it has to be kept in mind that the author’s autonomy can also not be thrown out of the window. The author is and always would be the first owner of the copyright, and would have an opportunity to display his ownership over such copyrighted work, by entering into other licensed agreements with organisations other than a single broadcasting organisation, unless of course the terms of the agreement with the first broadcasting organisation explicitly provides for grant of exclusive rights.

Further, a step ahead in preventing monopoly over sharing of information, the Broadcasting Signals Mandatory Sharing (with Prasar Bharati) Act of 2007[11] was passed by the Parliament. In pursuance of this Act all private broadcasters were required to share live television and radio feed with Doordarshan and All India Radio for events which had national importance. Doordarshan, was not allowed to showcase its own advertisements, and the broadcast was to be made after a time lapse of a few minutes.

Infringement of Broadcaster’s Rights-

The rights of the broadcasting organisations are said to be infringed, if any unauthorised person without proper approval from the broadcasting organisation does the following acts (Section 37)-

a)     Re-broadcast of the original broadcast

b)    Play the broadcast in public for payment of any charges

c)     Make a sound or video recording of the broadcast

d)    Reproduction of the recording mentioned in point (c)

e)     Sale or giving on rent or making an offer for sale of the recording mentioned in point (c)

In matters of the above acts, the broadcasting organisations have the following rights in terms of remedies against infringements-

·       Civil remedies- Infringement, damages, costs, accounts

·       Seizure of infringing copies

·       Penal provisions- Imprisonment and fine

However, Section 39 also speaks of certain acts which are not considered infringement of the broadcaster’s rights-

a)     Making a recording for private purposes, or for the purpose of teaching or research

b)    Use for reporting of current events or news

c)     Making necessary adaptations or modifications which do not amount to infringement of copyright

d)    Such acts which are mentioned under Section 52 of the act, being-

·       Making of recordings and copies by the broadcasting organisation using its own facilities, and for the work for which it has right to broadcast, and using that recording for archival purpose

·       Use of such recorded material for bona fired religious purpose or official ceremony held by the Central or the State Government (religious purpose also includes marriage procession and other social festivities during marriage)

These acts are considered as fair usage of the copyrighted material, and does do not amount to infringement.

Conclusion-

The entertainment and media broadcasting industry, is growing at a rapid pace, and is venturing into newer spaces every now and then. As this happens, newer challenges emerge which are a direct consequence of the rapid growth. The Courts in India, have always tried their level best to uphold the freedom of speech and expression of the content creators, and create a space where the copyright owners not only get acknowledgement for their works, but also have the opportunity to gain commercial advantage out of the same. While doing so, the courts have also tried to do a balancing act, by trying to benefit the broadcasting organisations, and thereby ensuring greater flow of information amongst the public, and also upholding the public interest by making certain broadcasts mandatory. Where, on one hand the courts have upheld the exclusive licensing agreements entered into by the broadcasting organisations, and on the other, they have tried to frame acts such as the Broadcasting Signals Mandatory Sharing Act for the benefit of the general strata. The exclusive rights approach, although seems against the interests of the copyright owners, would not necessarily be so, as that would mean streamlined broadcasting by just one broadcasting organisation, and allowing that organisation to protect the individuality and exclusivity of the copyrighted work. Since the broadcasting organisations have greater resources for enforcing the rights over such broadcast, they are in a better position of negotiability, and protection of the copyrighted work of the author. Naturally, if there is any mischief on part of the broadcasting organisations, either in terms of the royalty paid, or in terms of any other attributions, the doors of the courts are always open for the copyright owners.