Authored By – Ayush Dhankar, Llyod Law College

INTRODUCTION

Genuinely, when we view a cricket match in a gallery or a live concert of any celebrity in a program or even listen to unplugged sound recordings of any singer, we just take up the leisure of the subject that is displayed. Most of us, or perhaps very few people, know that these programs or matches that we view can also be infringed or forged technically and sold off into piracy marketing. For these variant issues, the government has taken a bold step and provided protection to the broadcasting channels and the broadcaster who has been infringed under the Copyright Act. To speak in a broader sense, the broadcasting rights were totally unrecognizable or perhaps kept as a diminished part of protection under the laws. It could be understood that these laws did not show any vibrant existence until 1994. Making them legal was a strong prospect as there were no such regulations that barred the usage of broadcasted elements, and hence, it termed a leniency of infringing the original broadcaster’s work, violating his authenticity. A performer who worked hard on his piece of innovation was left to regardless of the loss of his capacity to create a masterpiece for himself upon his own name that has been put up on the television for visualizing. The Copyright Act has amended the old law and replaced it with a new law in favor of the Broadcasting Category. It has been incorporated in the Intellectual Property Law, which provides protection of the broadcaster and the programs that would not amount to infringement of broadcasting rights under Articles 37 and 39 of the Copyright (Amendment) Act, 1994, respectively.

MEANING, DEFINITION & EXPLANATION

The term broadcasting is in itself a wider term. It is the most essential part of running communication across the billions of the Indian crowd. With the growth of technology and science, the advent of telecommunications, broadcasting, and multimedia started to evolve and gradually started to reach the zenith of the public at large. It seems that it is an inevitable source of dissemination of entertainment to the developing countries and also a quicker method of delivering information. The entire scenario changed after the amendment of Sections 37 and 39 of the Copyright Act 1957, which took into consideration the ailments of the broadcasters in a huge and larger frame.

 The Copyright (Amendment) Act, 1994 hasn’t mentioned or defined Broadcasting Rights anywhere in the Act, but it sure did define ‘Broadcast’ and ‘Communication to the Public’ in sheer sense. Section 2 of the Copyright Act states[1] :-

2(dd) “broadcast” 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.” 2(ff) “Communication to the public” means making any work or performance 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 physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears, or otherwise enjoys the work or performance so made available. Explanation. — 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.” While discussing broadcasting rights, it is equally important to know what these rights are and how this bundle of rights came into existence. Actually, in the clearest sense, ‘Broadcasting Rights’ are those rights that have been duly conferred to broadcasting organizations, such as the television, radio, or other telecasting programs known as ‘Rights of Broadcasting Organizations.’. Section 37 of the Act significantly provides every broadcasting organization with such rights in respect to their broadcasts. It can limit infringement against.[2]

• Re-broadcasting the broadcasts.
• Causing the broadcast can be heard or seen by the public to be heard or seen by the public on payment of any charges.
• Making any sound recording or video recording of the broadcast.
• Making any reproduction of such sound recording or video recording where such initial recording was done without license or where it was licensed for any such purpose not envisaged by such license.
• Selling or hiring to the public or offering for sale or hire, any such sound recording or visual recording of the broadcasts.

The total term of this bundle of rights shall be twenty-five years from the day of commencement of the broadcast, and during the subsistent period, if anyone without the prior consent of the owner or license uses them, it amounts to an infringement of these rights. To add up furthermore, the Information Technology Act 3[3] under Section 43 states that a person would be liable to pay Rupees 1 crore as compensation for unauthorized downloading.

HISTORICAL BACKGROUND / EVOLUTION

After India gained independence in 1947, All India Radio (AIR) became the country’s primary broadcaster. The newly formed Indian government quickly recognized the immense potential of broadcasting to shape public opinion, spread educational content, and foster national unity. However, with this power came the need for regulation to ensure that broadcasting was used responsibly and for the public good. The government thus took several steps to regulate and manage broadcasting, marking the beginning of a new era.

The Indian Wireless Telegraphy Act, 1933: –

Before independence, in the British colonial era, the Indian Wireless Telegraphy Act of 1933 was established to regulate radio broadcasting. Although it was introduced under British rule, it remained in effect after independence, overseeing radio broadcasts until the 1990s. This act gave the government control over key aspects of broadcasting, such as:

• Licensing: It required broadcasters to obtain a license from the government in order to operate.
• Frequencies: The government controlled the allocation of frequencies, essentially determining who could broadcast and on what wavelength.
• Content Regulation: The government also had authority over the content being broadcast, ensuring it aligned with national interests and public order.

In the early years, AIR was the only broadcasting service, and the government used its control to promote national integration, cultural unity, and public education. However, as technology advanced and media consumption grew, the limitations of this colonial-era law became clear.

BROADCASTING RIGHTS IN INDIA UNDER INTELLECTUAL PROPERTY LAW

A number of conventions have been responsible for the protection of the Broadcasting Rights in India. If we track back to the history of India, the British government has passed and enumerated legislation engaging the broadcasters in a monopoly over the communications and broadcasting under the Indian Telegraph Act, 1885. In the original sense, the Indian Copyright Acts of 1914 and 1957 were a revision of the British Copyright Acts of 1911 and 1956, and due to the expansion in the usage of new technological advents and various international conventions and legal frameworks, it became a mandate to amend the copyright laws. At that time, the rights of broadcasting organizations were not inclusive under the Copyright Act of 1957, but later in 1994, the amendment brought the broadcasting rights to light.

Section 37 of The Copyright (Amendment) Act, 2004, provides “Broadcast reproduction right.” It says:

(1) Where any program is broadcast by radio diffusion by the government or any other broadcasting authority, a special right to be known as “broadcast reproduction right” shall subsist in such program.

(2) The government or other broadcasting authority, as the case may be, shall be the owner of the broadcast reproduction right, and such right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the program is first broadcast.

(3) During the continuance of a broadcast reproduction right in relation to any program, any person who,

(a) without the license of the owner of the right,

(i) rebroadcasts the program in question or any substantial part thereof, or

(ii) causes the program in question or any substantial part thereof to be heard in public, or

(b) without the license of the owner of the right to utilize the broadcast for the purpose of making a record recording the program in question or any substantial part thereof, makes any such record, shall be deemed to infringe that broadcast reproduction right.

Section 39 of the Act [4] puts a slight leniency on the Act. The Copyright (Amendment) Act, 1994, has recognized certain acts that do not cause any kind of infringement upon the broadcasting reproduction rights. They are:

• Making any sound or video recording for private purposes or for bona fide teaching or research; or
• Using consistent with fair dealing of excerpts of broadcasts in reporting a current event or for a bona fide review, teaching, or research; or
• Any such act with necessary adaptations and modifications that do not constitute infringement of copyright under Section 52 of the Act[5].

The exceptions are hereby provided so that a person who is doing a broadcast on his own risk and which is good for the public at large would be considered as a good cause for the society. These types of broadcasting events are also considerable for research or to enhance knowledge for a particular subject.

The Copyright (Amendment) Act, 1999, has incorporated Section 40A along with Section 40 and provided power to the Central Government to apply Chapter VIII to broadcasting organizations in certain other countries as well. The Section says that[6]:

1. If the Central Government is satisfied that a foreign country with which India is in a binding treaty or is a party to a particular convention relating to broadcasting organizations has made or undertaken or, as such, the Central Government thinks it expedient to require protection in that foreign country as permissible under the Act, then it may, by order, publish an official gazette under which the provisions of Chapter VIII would apply as—
2. To broadcasting organizations whose headquarters are situated in a country to which the order relates, or the broadcast was transmitted from a transmitter situated in the country to which the order relates, though the headquarters is situated in India or has been made and broadcasted from India; or
3. To performances that have taken place outside India to which the order relates in a manner as if it took place in India; or
4. To performances that are incorporated in the form of sound recordings published in a country where the order relates and it was seen to be published in India; or
5. To performances that are not fixed of a country to which the order relates or the broadcast was transmitted from a transmitter situated in the country to which the order relates thought the headquarter is situated in India or has been made and broadcasted from India.
6. Every order made under sub-section (1) [7] may provide that
   1. The provisions stated under Chapter VIII shall apply either generally or in relation to such class or classes of broadcasts as may be specified in the order.
   2. The terms of the copyrights of broadcasting organizations in India shall not exit such term as is conferred by the law pertaining to such order.
   3. The enjoyment of these rights under Chapter VIII would subject to accomplishment of such conditions or formalities, if any, as the order specifies.
   4. Chapter VIII or any part thereof shall not apply to broadcasts before the commencement of the order.
   5. In case of ownership of rights of broadcasting organizations, the provisions laid down in Chapter VIII shall apply with such exceptions and modifications as per he Central Government having regard to the laws available in the foreign country.

Similarly, under Section 42A, the Copyright (Amendment) Act, 1999 has strictly ascertained that the Central Government has the power to restrict rights of foreign broadcasting organizations if it thinks that a foreign country hasn’t provided adequate protection of rights to a broadcasting organization or the citizens of such country are not incorporated or domiciled in India under such provision.

AMENDMENTS / ADDITIONS / REPEALING

Statutory License Introduced by 2012 Amendments Section 31 D, introduced by the Copyright (Amendment) Act, 2012, grants a statutory license to broadcasting organizations desirous of broadcasting already ‘published’ literary or musical works and sound recordings. The broadcasting organization shall give prior notice to the right holders and pay royalties at the rates fixed by the Copyright Board. The names of authors and performers shall be announced during the broadcast. The broadcasting organization shall maintain all records of the broadcast and books of account and render them to the owner. Before the introduction of Section 31D, access to copyrighted works by broadcasters was dependent on voluntary licensing. As a result, unreasonable terms and conditions were being imposed by the copyright owners and societies[8]. The sole purpose of this section seems to be to allow the broadcasting organizations to synchronize musical works with their visual broadcasts. For example, TV serials can now use film songs in synchronization with their visuals. Visual works have been excluded from this section. So it is unclear how licensing will work for the broadcasting of film clips or visuals. Also, this amendment does not clarify whether a broadcast of a literary or musical work is itself a published work. Going by definition, a broadcast can be considered a ‘published work’ as it is communicated to the public by means other than by issuing copies. But this stands in contradiction to the exclusive reproduction rights given to broadcasting organizations, giving rise to ambiguity.

CRITICISM / APPRECIATION

As per our analysis of the laws regarding broadcasting, it can be seen that despite the Copyright (Amendment) Act, 1994, which has given a position to the broadcasters to protect themselves from infringement, it is not able to handle the technological advancements. The more the technology is increasing, the more the threat to infringement. The government is trying its best to provide an upper-level protection to these broadcasters, yet they are unable to implement or draft those laws that are well equipped to provide the maximum protection. The incorporation of Sections 40A and 42A has provided a certain limit of adequacy, but there is no remedy for transborder infringement of copyright. So the government should come up with better ideas for giving the broadcasters significant recognition besides those mentioned in Section 37 and also bring up better methods to diminish the controversies of infringement in the global arena. Another statement made by Legislative would have been the proposed Broadcast Services Regulation Bill of 2007, which was an attempt to facilitate and develop the carriage and content of broadcasting in an orderly manner. The bill is pending until now.

CONCLUSION & COMMENTS

The rights given to broadcasting organizations in India are actually in mere consonance with international treaties and conventions that provide for an exclusive rights-based approach. Indian law, right from amendments in 1994 to 2012, in this regard has been particularly modelled on the principles laid down by the Rome Convention 1961 and TRIPs Agreement 1994[9]. Developing countries like India and activists supporting access to knowledge have been pushing harder for a signal-based protection of broadcasting organizations. The criticism of a signal-based approach is that the rights of the broadcasters would extinguish the moment the broadcast is made and the signal thereafter ceases to exist. However, the authors here want to put forth that it is essential, especially in developing countries like India, to take a liberal access to information, and that a signal-based approach is the right one approach towards[10] access to information and that signal based approach is the right one.

The insertion of new laws has brought a major change in the scenario of copyright and hence has been able to give a certain amount of privilege to the broadcasting organizations; yet, these laws are incapable of giving the maximized level of protection due to a number of loopholes, as in the aftermath of the inclusion of these laws, the Supreme Court and the other courts had to pass many judgments to reduce the controversial streak that has arisen over time. Right after the Copyright (Amendment) Act, 1994 was passed the first in line arrived the Secretary, Ministry of I & B v. Cricket Association of Bengal (CAB) [11], which had made a magnanimous constitutional change in the history of Broadcasting. It was a positive approach. But later on, a series of judgments had reduced the scope of this act due to disputes over transmission and ownership. Hence, the best way to provide an impact emphasis to a stronger set of laws is to induce the legislature to come up with more comprehensive laws, which give the utmost security and protection to the broadcasting area.

[1] Wadhera B L, , (2007), Law Relating to Intellectual Property- Patents, Trade Marks, Copyrights, Designs,

Geographical Indications, Semiconductor Integrated Circuits Layout- Design, Protection of Plans Varieties and

Farmers’ Rights, TRIPS. , 4th Edn., (Paperback), Universal Law Publishing.p-415.

[2] Ibid.

[3] The  Information Technology Act 2002.

[4] The Copyright (Amendment) Act, 1994.

[5] Ibid

[6] Section 40, The Copyright (Amendment) Act, 1999.

[7] Ibid.

[8] Zakir Thomas, “Overview of Changes to the Indian Copyright Law”, Journal of Intellectual Property Rights,

Vol. 17, July 2012, pp. 324-334

[9] Divyanshu Sehgal and Siddharth Mathur, “ Rights and Duties of Broadcasting  Organizations:  Analysis  of the 

WIPO Treaty on the Protection of Broadcasting  Organizations”,Journal  of Intellectual Property  Rights, Vol.16, 

September 2011, pp. 402-408.

[10] Ibid.

[11] Supra, Note 16.