Public versus private broadcast

By Manisha Singh Nair, Lex Orbis IP Practice
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Can the viewing of a television channel by a few select clients be considered as a communication to the public and if so, would it be an infringement of copyright?

In Garware Plastics and Polyester Ltd and Ors v Telelink and Ors the Bombay High Court laid down three factors to determine what constitutes a broadcast to the public:

• The character of the audience: Whether it is a purely domestic or private audience or whether it contains a portion of the public.

• The relationship between the copyright owner and the audience: Can the audience be described as the copyright owner’s public or part of his public? If so, the copyright owner would be exercising his statutory right in performing before that audience. If anyone else performs the copyright owner’s work before that audience without the owner’s consent, then that would constitute infringement.

• The impact of the performance on the copyright owner’s earnings: Does it deprive him of earnings?

On the basis of these factors, the court held that showing video films over cable television networks amounted to broadcasting the film or communicating it to a section of the public. As such, it could not be treated as a private communication.

Manisha Singh Nair Partner Lex Orbis IP Practice
Manisha Singh Nair
Partner
Lex Orbis IP Practice

Disputing public

More recently, in Neo Sports Broadcast Private Ltd v New Sanjay Cable Networks & Ors, Delhi High Court considered what amounts to “communication to public”. It concluded that making a broadcast available, even to a selected clientele, amounts to making it available to the public, thus infringing copyright.

In the case Neo Sports, a broadcaster engaged in producing, procuring and tele-casting sports programmes to the public, filed for permanent injunction against New Sanjay Cable Network and three others for alleged copyright infringement of its broadcast rights. Neo Sports also claimed that M/s Hotel Sunbeam (the fourth defendant), had engaged in illegal communication to the public by making the broadcast available in its hotel.

First moves

A temporary injunction was granted after the court was assured that Neo Sports had made a good case for grant of an ex parte injunction and that it would suffer irreparable loss if the defendants were not restrained. The court also appointed a local commissioner who found that Hotel Sunbeam was illegally telecasting, distributing and transmitting Neo Sports and Neo Cricket – two 24-hour channels owned by Neo Sports.

M/s Hotel Sunbeam did not file a written statement despite being served notice. As such, the court held that it could proceed under order VIII rule 10 of the Code of Civil Procedure as the case averments and the materials placed on record were sufficient.

Arguments

Neo Sports claimed that it distributed the contents on its channels on payment. Further, it claimed that Nimbus Communication was licensed to exploit, and distribute various events organized by the Board of Control for Cricket in India (BCCI) through a licence agreement dated 28 February 2006.

It also argued that its business depended on IP rights, broadcast and representation rights in particular, granted under the Copyright Act.

The law

According to section 2(f)(f) of the Copyright Act, 1957, communication to the public means “making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such works regardless of whether any member of the public actually sees, hears or otherwise enjoys the works so made available.”

The relevant section goes on to explain that “For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.”

Similarly, “broadcast” is defined under section 2(d)(d) as “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.”

The verdict

The court observed that according to section 5(a), when any person does something that only the copyright owner has the right to do, without being licensed to do so by the licence owner or in contravention of conditions of licence or of any licence imposed by competent authority, it amounts to infringement.

The court also held that the fourth defendant infringed copyright by placing a television set and making available the sports channel for viewing by its clients.

The court granted a permanent injunction and awarded costs to Neo Sports.

Manisha Singh Nair is a partner at Lex Orbis IP, a New Delhi-based intellectual property practice.

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