Wider protection needed for broadcasters’ rights

By Rahul Chaudhry, Lall Lahiri & Salhotra
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While television, radio and other entertainment media are often the subjects of discussion regarding intellectual property rights, there has been minimal discussion of broadcasters’ rights. While production of content may be a costly affair requiring tremendous creative input, the work of broadcasters is also expensive, and equally important in delivering entertainment to the public.

Rahul Chaudhry Partner Lall Lahiri & SalhotraRahul Chaudhry Partner Lall Lahiri & Salhotra
Rahul Chaudhry
Partner
Lall Lahiri & Salhotra

Broadcasters’ rights are different from the IP rights vested in the programme itself, which include author copyright on the sounds, words and pictures used to create content. Broadcasters’ rights are primarily economic and aimed at protecting the broadcaster from unauthorized use of the broadcast.

Broadcasters may suffer heavy losses if a broadcast is pirated, or re-broadcast without the royalty due being paid. At present, the law allows broadcasters to restrict the right to telecast programmes, and to control the extent and manner in which they broadcast their content. This is to allow broadcasters to recoup the costs incurred in televising or “bringing to air” any programme.

More than commercial interests are involved: it is widely recognized that the expression of thought through a free press is a cornerstone of democratic and progressive society. In order to further the cause of freedom of thought and expression, state control over media must be lifted, and private players should be allowed to disseminate information and ideas. Without broadcasters’ rights, private investors would be hesitant to undertake broadcasting, since it is a capital-intensive enterprise that is slow to recover costs.

Under the law, broadcasters are granted a bundle of rights, each subsisting for a period of 25 years from the year after the broadcast is made.

The 1961 Rome Convention, which prescribes the minimum standard of rights to be granted to broadcasters, allows for a minimum period of 20 years for the rights to subsist. One of the important broadcasters’ rights under the Copyright Act in India is the right of “broadcast reproduction”, granted under section 37 of the act.

This right allows broadcasters to grant licences for the following: rebroadcasting; providing broadcasts to the public on payment of any charges; making a sound or visual recording of the broadcast; reproducing any such recording, where the initial recording was done without licence or, where it was licensed, for any purpose not sanctioned by the licence, and; selling/hiring to the public, or offering to sell/hire any such recording.

Therefore, any person who makes a recording of a broadcast (or part of one) for the purpose of rebroadcasting it, especially on payment of charges, is infringing the broadcaster’s rights. In relation to the enforcement of broadcasters’ rights (such as licensing of these rights, or remedies against infringement), under the act, the same provisions apply as those for copyright.

After the expiry of the broadcasters’ rights in the content (after the 25-year period), the content continues to be protected for the copyright subsisting in the work, and passes into the public domain only after expiry of that copyright. It is for this reason that most contracts between authors of work and broadcasters specify that the copyright in the work shall vest with the broadcaster.

Recently, broadcast piracy and infringement have become more prevalent, due to advancements in technology which make it easier to record and re-transmit signals. As a result, demand has increased for more stringest protective measures for broadcasts.

Since it is difficult to limit broadcasts to one state or even one nation there is also a need for a more global and uniform policy. In this regard, the World Intellectual Property Organization has been creating a draft for a treaty on broadcasters’ rights.

A proposal to include webcasts in the treaty has been fiercely opposed by several countries, which argue that rights over webcasts would limit the amount of information available in the public domain, and be detrimental to the enhancement of internet-delivered services. There is also concern that allowing webcast rights to a broadcaster would eventually result in diminishing the public domain.

Another proposal for the treaty, to increase the duration of broadcasters’ rights to 50 years, has also been severely criticized. Opponents say that 50 years is a very long period to grant monopoly over content when recovery of costs – which is the basic purpose of granting broadcasters’ rights at all – doesn’t require such extreme lengths of time.

These controversies have stymied those striving towards the creation of a uniform global policy. The Rome Convention appears to be becoming obsolete. National laws in several countries, including India (with the introduction of the Telecommunications Regulatory Authority of India, and other regulatory bodies and legislation), have been able to fill the gap nationally. However, worldwide there is uncertainty and great variation in the rules and regulations governing broadcasting rights; a situation not only undesirable, but detrimental to the gains of globalization.

Rahul Chaudhry was called to the bar in September 2002. He joined Lall Lahiri & Salhotra in January 2004 and became a partner just four years later. Along with the firm’s founding partners, Anuradha Salhotra and Amar Raj Lall, Chaudhry is regarded as one of the most prominent faces of IP management in India.

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