Overview shows trend to extend broadcasters’ rights

By Abhai Pandey, Lex Orbis IP Practice
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Broadcasting of a copyrighted work in audio or visual form requires a licence from the copyright owner, who has the exclusive right to communicate or transmit the work. The broadcast rights so acquired do not affect the original copyright vested in the author of the work, which remains a separately protected right. Also, unlike copyright, the broadcaster’s right is not based upon a creative contribution to a work, but upon the economic investment made by the broadcaster in procuring the rights to broadcast.

Abhai Pandey Lawyer Lex Orbis IP Practice
Abhai Pandey
Lawyer
Lex Orbis IP Practice

While the Rome Convention of 1961 fixes certain minimum rights for broadcasting organizations, the Berne Convention of 1979 allows the copyright owners to authorize the broadcasting of their works or their communication in any other form, regardless of broadcast rights that have already been granted. Article 2bis of the Berne Convention leaves it to local legislation to frame conditions for copyright to be vested in broadcasting organizations. Article 14(3) of the Trade-related Aspects of Intellectual Property Rights (TRIPS) agreement also confers certain rights upon broadcasters, which are comparable to those specified in the Rome Convention.

The rights of broadcasters as discussed in section 37 of the Indian Copyright Act, 1957, subsists for 25 years, restricting rebroadcast of the contents; reproduction of contents and creation of visual or sound recordings of the broadcast; and the collecting of fees for viewing such broadcast, rebroadcast or recorded contents, and for selling or hiring of any sound recording or visual recording made without licence or outside the terms of licence by the broadcaster.

The broadcaster has the right to control the extent and the manner of such broadcast. Notably, the right to broadcast can also be obtained over works that are in public domain. At the same time, fair use exceptions – such as making a sound or visual recording for private use, for training or research purposes and for the reporting of current events – apply to broadcasting rights in the same way they apply to copyright.

In Entertainment Network (India) Ltd v M/s Super Cassette Industries Ltd, while discussing compulsory licensing of musical works, the Supreme Court held that broadcast of songs without obtaining a licence from the owner amounted to infringement. The court recognized that FM radio broadcasting is a relatively new phenomenon in India and thus the conflict between the various rights subsisting in a work have to be resolved, keeping in mind the spirit of the act.

In Garware Plastics and Polysters Ltd v Telelink, the plaintiffs, who were owners of copyright in a film, had assigned the broadcasting rights for it to the Government of India and state broadcaster Doordarshan, while retaining the right to broadcast the film on cable television. Accordingly, the telecast of the film by cable operators without such licence was held to be an infringement.

The growth in various modes of communication, connected with developments in information technology, has seen broadcasting rights gain new prominence. Recently the courts defended broadcasters’ rights in relation to television transmissions, as evidenced in Prasar Bharti v Sahara TV Network, where the court restrained news channels from broadcasting substantial portions of cricket series between India and South Africa, the licence to which had been procured by Doordarshan. In Sony v Zee Telefilms, the issue related to the fair use and newsworthiness of the highlights of the Filmfare Awards show; the court ordered that not more than eight minutes in a day could be broadcast for the purpose of news reporting.

The scope of copyright and related rights has expanded in relation to digital and online media too, with copyright law being applied to file sharing, uploading, downloading and webcasts. There have been demands to upgrade the present level of protection of broadcasters’ rights, making it more rigorous and secure.

Among the current international efforts to secure effective protection of broadcasters’ rights is the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights treaty, which addresses issues such as rebroadcasting via cable television, satellite and the internet. Its proposed terms are currently being examined and discussed, prior to the ambit of broadcasting rights being determined and fixed.

The WIPO treaty not only proposes to give broadcasters intellectual property rights in the material they broadcast (like the copyrights held by the creators of the works), it even advocates that copyright holders be prevented from accessing and using broadcasts made of their own works, in order to protect broadcasters’ rights. Further, the treaty does not require countries to balance the rights of broadcasters with the rights of users in the same way that copyright laws do (such as via the fair use doctrine).

It is not surprising that opponents of the treaty are rejecting the monopoly rights that it would create in favour of broadcasters, and advocating instead a balance of rights, and the preservation of fair use provisions for the sake of freedom of expression.

Abhai Pandey is a lawyer with Lex Orbis IP Practice, a law firm specializing in intellectual property issues.

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