The reality of how broadcasting rights are interpreted and managed in India is rather grim as compared to the variety of provisions laid down by the law. India faces the problem of illegal and pirated documentation of movies which is highly dysfunctional in encouraging these broadcasters from reaping the full potential of the broadcasting industry. Indian law, in this domain, is still young and requires an effective legal mechanism for technological developments which have been established in international articles and treaties.
By: Muskan Nagdawne, Third Year Law Student at Symbiosis Law School, Pune.
From local performing arts to large scale movie production- the range of what is covered under rights of broadcasting in India is immaculate. Under the legal provisions designed by jurists, the Copyright Act of 1957 governs the laws related to the display of artistic expression. Implementation of the same is not only to protect the database involved in creativity but also to encourage the society to lay a foundation for creativity by promoting their efforts and fair use of editorial or artistic work.
The Copyright Act of India provides an arrangement of rights and liabilities when it comes to internet broadcasting and technical measures. These have been designed in a similar fashion to international guidelines for the protection of media.
Broadcasting Rights under Copyright Law
Section 37 predominantly lays down the rights for broadcasting in India via seeking legislative and an interpretive theory for protection. The moment you perform something original, your performance acquires protection. The acquiring of a performer’s right enables you to bar anyone from:
- Making a sound recording or visual recording of the performance without permission
- Reproducing a sound recording or a visual recording, wherein such recording was made without the performer’s consent or was made for purposes different to what the performer had consented.
- Broadcasting the performance.
- Communicating the performance to the public.
- Issuing copies of the performance to the public where such copies are not ones already in circulation.
- Selling or giving it on commercial rental or offer for sale or commercial rental any copy of the recording.
In addition to this, the Copyright Act also vests certain moral rights in performers. These have been enumerated in S 38B of the Copyright Act. S 38B provides that even in the event of the assignment of rights, a performer has the right to:
- Claim to be identified as the performer of his/her performance except where omission is dictated by the manner of use of performance.
- Restrain or claim damages in respect of any distortion, mutilation, or other modification of his/her performance that would be prejudicial to his/her reputation.
With rights, come limitations. Exceptions to the rights of broadcasting in India are governed under S.39 of the Copyright Act, which provide that if:
- The sound/video recording of the performance is made solely for private use or for bona fide teaching and research;
- The use is consistent with fair dealing.
- Any other act which does not constitute an infringement under S 52.
The performer in these events, cannot claim to have conducted a faithful performance of their rights.
Concept of Neighbouring Rights
The concept of neighbouring rights is subject-matter to and for the full establishment of legal protection for pre-existing materials. It enables protection of the rights of broadcasters and performers by bestowing upon them rights in three distinguished categories; namely for Performers (actors/musicians); Producers of sound recordings (also referred to as phonograms); and Broadcasting organizations.
The reason for these to be called neighbouring rights is because even though broadcasting and performing are not the subject matter of copyright, they are incidental to it.
In this manner, by providing a narrow space for individuals of niche categories into the rights of a broader category of the understanding of copyright, the Indian law sets out to expand what is essentially a corporate notion into a moral dialogue.
Commercial exploitation of original work of literary value and a profound poetic expression is as important to invest in and protect as any other legal rights. The justification provided primarily for the protection of neighbouring rights in such scenarios is that the public performer displays certain creativity in making the work enjoyable to the public. The aspect of the credibility of performance therefore is as much of an intellectual creation as a copyrighted work. Therefore, as long as they can easily satisfy the test of originality as has been required under traditional copyright protection, the remuneration for exploitation is likewise provided.
In the event of an infringement of such rights, the person is made available with both civil and criminal remedies. In the case of civil remedies, the person would be able to claim for an injunction, damages, or accounts of profit. The remedy of injunction originates from tort law which is a restriction of conduction of certain activity by a person upon violation of rights. Apart from this, criminal remedies wherein the infringer shall be punished for a term not less than six months and which may extend to six years also exist. Furthermore, the infringer is liable to pay a fine not less than fifty thousand rupees which may extend to two lakh rupees. A subsequent offense would invite a higher punishment.
In the landmark judgement Of Eastern Book Company and Others V. D.B. Modak and another the Hon’ble Apex court pronounced that in case of reproduction or publication of work in the public domain, the same does not account for the infringement of any copyright issue.
The court went on to give that the pure novelty of an idea or how innovative an invention does not amount to arousal of any copyright protection of such broadcasts and that in order to establish any right, one much prove the labour, skill and capital invested in the project.
Therefore, the execution of the idea is a more quantifiable variable over the mere thought under S.51 of the Copyright Act.
The court in New Delhi Television Ltd V. Icc Development (International) Ltd & Anr an interpretation to the concept of “FAIR DEALING” was questioned before the court in deciding whether the use of the footage of cricket matches by NDTV channel is consistent with the principles of fair dealing envisaged under Section 39(b) and Section 52(1)(a)(iii) of the Copyright Act. The court announced in their judgement that in case of such broadcasts being in accordance to the ICC guidelines, but anything restrictive in the guidelines, which distorts the principle laid down here would not be protected under law.
The reality of how broadcasting rights are interpreted and managed in India is rather grim as compared to the variety of provisions laid down by the law. The broadcasting bill of 1997 is one example, which provides for independent authority of broadcasting services to still be implemented in India. India faces the problem of illegal and pirated documentation of movies which is highly dysfunctional in encouraging these broadcasters from reaping the full potential of the broadcasting industry. Indian law, in this domain, is still young and requires an effective legal mechanism for technological developments which have been established in international articles and treaties.