INTRODUCTION:
The Media & Entertainment (M&E) Industry in India has experienced robust growth over the last few years and as per the FICCI-KPMG report[1] on the Indian Media & Entertainment Industry, this industry is expected to grow further at a compounded annual growth rate of 15 % per annum over the next five years, to reach INR 1.4 trillion in 2017[2]. Broadcasting was an area less touched by the Indian legislators due to lesser competition and the existence of Prasar Bharati (national broadcaster)[3]. The Supreme Court directed the government to set up an independent autonomous authority which would free Prasar Bharati from the shackles of government control and ensure conditions in which the freedom of speech and expression could be meaningful and effectively enjoyed by one and all[4]. In the world of globalization, the globalization goes in hand with the legislation by bringing more international regimes to control the national governments. In the present international framework broadcasting organisations have legal protection only over the transmissions made through wireless means (satellite)[5]. They enjoy a certain level of protection under the existing international regimes, namely the Rome Convention, 1961[6], TRIPs Agreement, 1994[7], WIPO Performers and Phonograms Treaty (WPPT), 1996[8] and WIPO Copyright Treaty (WCT), 1996. In India, broadcasting is one of the most important mechanisms for communicating information and knowledge to the public at large. Due to the technological developments it becomes so easy to communicate with other with the help of the telecommunication, broadcasting and other multimedia. Hence there is need to create the national framework and appropriate national legislation for governing such a broadcasting in India. Part of this process involves revising the existing frameworks for the protection and regulation of broadcasting organisations, which play a fundamental role in transmitting information to the public.
BROADCASTING RIGHTS IN INDIA:
India is the third largest broadcasting market in the world, and it constitutes a great chunk of the mass-media industry of the world[9]. Many laws in India are related to broadcasting such as Copyright Act, 1957, Trade Mark Act, 1999, Cinematography Act, 1952 and so on. Also, there are various governing bodies to govern and control the broadcasting such as Ministry of Information and Broadcasting, Telecom Regulatory Authority of India (TRAI), Central Board of Film Certification (CBFC or Censor Board) etc. Under the trademarks Act 1999 protection to names, titles, word, letter, graphic artwork, shape of products, words and combination of colours Provides for remedies in case of infringement of trade mark. Under the cinematography Act of 1952 the censor board is established which provide the certificate for the film before the broadcasting of it. For the first time the validity of the censor board had been challenged under the landmark case of K.A. Abbas v. Union of India[10]. The Supreme Court held that the pre-censorship is valid under Article 19(2) of the Indian Constitution on the basis that films must have to treat differently from the other form of the art since the movie can affect the emotions of the person deeply.
But the broadcaster’s right is mainly cover under the Copyright Act, 1957. The 1983 amendment inserted the definition of ‘broadcast’. The Act defines ‘broadcast’ which means communication to the public-(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast.[11] The amendments made in 1994 introduced the rights of broadcasting organisations in copyright law that was further amended in 2012 to extend the scope of the rights granted to broadcasting organisations.
- BROADCAST REPRODUCTION RIGHT UNDER SECTION 37 OF COPYRIGHT ACT, 1957
Every broadcasting organization has a special right called the “broadcast reproduction right” in its broadcasts. The rights subsist for twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. For example, twenty-five years will start from 02/05/2020. During this period the broadcasting organization’s exclusive rights are said to be infringed if any person, without license:
- rebroadcasts the broadcast; or
- causes the broadcast to be heard or seen by the public on payment of any charges; or
- makes any sound recording or visual recording of the broadcast; or
- makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence; or
- sells or gives on commercial rental or offer for sale or of such rental, any such recording or visual recording referred to clause (iii) or clause (iv).
- FAIR DEALING SECTION 39
However, Section 39 provides for fair use of the broadcast like reporting of news, bona fide research and also includes all the other fair use cases referred to in Section 52.
- STATUTORY LICENCE FOR REBROADCAST:
The amendments were made in 2012 which granted statutory license to broadcasting organisations desiring to broadcast already published literary, musical works or sound recordings. They can now do so provided they fulfil certain conditions like paying royalties to right owners as per the rates fixed by Copyright Board, mentioning names of performers or artists in the broadcast among others.[12]
- STRENGTHENING OF BORDER MEASURES SECTION 53[13]:
Section 53 as substituted by 2012 incorporates detailed border measures to strengthen the enforcement of rights by making provision to control import of infringing copies by the customs department, disposal of infringing copies and presumption of authorship under civil remedies. It provides that the owner; of copyright of any work or any performance embodied in such work, or his duly authorised agent, may give notice in writing to the commissioner of customs, or to any other officer authorised in this behalf by the Central Board of Excise and Customs requesting the commissioner for a period specified in the notice, not exceeding one year, to treat infringing copies of the work as prohibited goods, and that infringing copies of the work are expected to arrive in India at a time and a place specified in the notice.
- TECHNOLOGICAL PROTECTION MEASURES:
Article eleven of WIPO Copyright treaty[14] and Article eighteen of WIPO Performances and Phonograms treaty[15] obliges member countries to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are Broadcasting reproduction Right in Republic of India used by authors and performers in reference to the exercise of their rights. this can be to prevent digital piracy. thus Section 65A has been inserted by way of 2012 amendment to acknowledge technological protection measures (TPMs), under Section 65A anyone who circumvents an effective technological measure applied for the aim of protective any of the rights conferred under the Act with the intention of infringing such rights, shall be punishable with imprisonment which can extend to 2 years and shall even be prone to fine. Exceptions to TMPs are provided in sub-section two enabling enjoyment of fair use provisions.
Along with copyrights the protection also can be sought-after under Section forty three of the information Technology Act, 2000 that makes one prone to pay damages by way of compensation up to Rs one crore for unauthorized downloading. Also, the constitution of the india says that “all citizens shall have the right to freedom of speech and expression”[16] . The Supreme Court says that “the right to freedom of speech and expression conjointly includes the right to educate, also and to entertain and additionally the right to be educated, informed and entertained.”
Hence, we are able to conclude that the copyright act beside constitution of india provides various rights under broadcasting laws.[17]
[1]http://www.nishithdesai.com/information/areas-of-service/industry/media-entertainment.html. (lastly accessed on 16/05/2020)
[2] https://www.in.kpmg.com/Securedata/FICCI/Reports/FICCI-KPMG_Report_2012.pdf. (lastly accessed on 16/05/2020)
[3] See Girish Kumar R, Relfi Paul, RIGHTS OF BROADCASTING ORGANIZATIONS: DO WE NEED LEGAL REFORM?, https://www.nalsar.ac.in/IJIPL/Files/Archives/Volume%202/5.pdf. (Lastly accessed on 16/05/2020)
[4] Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 S.C.C. 161, 224.
[5] Supra 3.
[6] It establishes that broadcasters have the right to prohibit but not to ‘authorize’ the fixation, reproduction of fixation, and the re-broadcasting by wireless means of broadcasts.
[7] Article 14(3), Agreement on the Trade – Related Aspects of Intellectual Property Rights Apr. 14, 1994, 33 I.L.M 1125, provides broadcasting organizations have the right to control the fixation, reproduction, wireless re-broadcasting and communication to the public of broadcasts.
[8] WIPO Performers and Phonograms Treaty, Article 15, December 20, 1996 equitable remuneration for wireless broadcasting or for any communication to the public of phonograms.
[9] Tarun Jain, “Broadcaster’s Right Under Copyright Law”, ICFAI University Journal of Intellectual Property Rights, Vol. VII, No. 3,2008, p. 9-24.
[10] AIR 1971, SC 481.
[11] Section 2(dd) of Copyright Amendment Act, 1983.
[12] Section 31(c) of Copyright Amendment Act, 2012.
[13] http://14.139.60.114:8080/jspui/bitstream/123456789/15514/13/Broadcasting%20Rights%20%2863-83%29.pdf. (lastly accessed on 18/05/2020)
[14] Article 11: Obligations concerning Technological Measures. https://wipolex.wipo.int/en/text/295157.( lastly accessed on 18/05/2020)
[15] Article 18 :Obligations concerning Technological Measures https://www.wipo.int/edocs/pubdocs/en/wipo_pub_227.pdf.( lastly accessed on 18/05/2020)
[16] Article 19(1)(a) of the Constitution of India, 1950.
[17] Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 S.C.C. 161, 224.
Author: Amey Jadhav,
Maharashtra National Law University, Aurangabad