Interview with Ashok Nambissan, General Counsel, Sony Entertainment Television
Ashok, could you please tell us a little about your professional journey leading into your current position?
It’s been a pretty long journey. I took my degree in law from the Madras Law College in 1982, started by clerking at a law firm in Bangalore in the early 80’s, then joined Parry & Company in Chennai in 1983 as a trainee lawyer and from Parry’s moved to ICI in Kolkata managing the legal affairs of different divisions and then to the Corporate Office in Delhi/Gurgaon at a time when ICI went through a large number of “restructuring” transactions. I moved to Mumbai to join Philips as General Counsel in 1999 and since 2007 I’ve been with Sony Entertainment Television as their GC managing legal and regulatory affairs as well as Standards and Practices.
With each company the nature of activity has been different: from confectionaries, ceramics and sugar to heavy chemicals, explosives, paints to consumer durables, medical equipment, lighting to media and entertainment. Each industry has its own legal issues, regulations, processes that throw up their own unique challenges and there is never a day that you don’t learn something new.
As an experienced media, sports and entertainment lawyer, how do you think the field has changed over the past decade? Can you please describe some of the interesting legal issues you encounter?
My experience with media and entertainment began when I joined SET. So it’s not been all that long. But the industry is changing and pretty rapidly too. India’s become the biggest theatre for cricket in the globe and the IPL clearly is the cricket brand that looks set to rival the big brands in other sports. At the same time, the appetite for other games is growing: we’ve got football (FA) and basketball (NBA) on our network. The EPL, La Liga and other football leagues are available on other networks. Golf, tennis, etc are seeing more interest. As the Indian economy grows and purchasing power increases, Indians are looking for the best in content on their television screens, whether it’s sports, the Olympics, fiction or reality. The truism “content is king” was never more apt than now. At the same time delivery platforms have evolved from analogue terrestrial cable to digital platforms like digital cable, DTH, IPTV, mobile, the Internet. With over 500 channels competing for eyeballs, competition is fierce and the need to differentiate becomes a USP. Having the rights that allows you to monetise across platforms becomes a key need. All this brings with it interesting challenges and legal issues..
Could you describe the range of legal issues you deal with in your profession?
It pretty much encompasses the whole arc from content development and/or acquisition to delivery to protection and regulation. You have copyright related issues in the rights you acquire and exploit. Infringement issues to ensure your rights are adequately protected and that you don’t infringe any third party rights. Moral rights, performer’s rights, music licenses- there is no “one window” solution. You could conceive a show and then find yourself with claims from strangers claiming infringement of their rights. And, with the Internet comes UGC, peer-to-peer sharing, social networking sites and in all this the originality of content and its protection takes a beating. Legal systems the world over are finding it difficult to cope with this threat. In India, particularly given the lethargy with which the system reacts, with courts overburdened by dockets, the problem is even more acute. The fault lines are growing and a medium like the internet provokes conventional thinking on issues like privacy and the right to information. All this throws up interesting issues for a media, entertainment and licensing lawyer.
In the context of sports and entertainment broadcasting in general and broadcasting the IPL in particular, news access and use of footage by news outlets under copyright ‘fair dealing’ seems to have become a significant issue – could you please give us some background and context on this?
There’s no doubt the IPL has revolutionised cricket. Where other leagues failed, the IPL with its unique mix of theatrics and cricket seems to have struck a responsive chord in the Indian cricket viewer. A traditionally male-dominated sport has seen its appeal cross gender and demographics. No other game generates an all-India appeal like cricket and no other league brings with it the enthusiasm of the IPL. Naturally, whether it’s the advertising looking to sell products or the news channel looking for TRPs, the IPL is the ideal vehicle. “Fair dealing” is an exception to the exclusive rights of content owners insofar as it relates to events that fall within the realm of current affairs. It permits within certain limits the publication of excerpts of exclusive content for use in analyses, criticism and in stirring public debate and discussion. However “fair dealing” was never meant to permit unrestricted public exhibition or communication to the public in violation of these exclusive rights. This is especially so in live sporting events that cost enormous sums of money to organize and for which licensees pay substantial license fees for the right to exclusively exploit the content. ”Fair dealing” imposes on the purveyors of news who use such copyrighted content an element of self regulation; an innate sense of thus far and no further. Unfortunately, when this element is misused, the principle stands diluted and use becomes gratuitous commercial exploitation: a right without a corresponding duty.
How best do you think the law can balance the rights of broadcasters against the public’s right of access to diverse sources of opinion?
Well, the hard fact is that content ideation, creation and communication is a process that is time consuming and costs money. Unless those who enable its communication to the public see for themselves a reasonable return on their investment, the public’s right of access will not fructify. Hence, a balance has to be struck by laying down guidelines that protect the content owner’s exclusivity while at the same time giving to the public the access it requires to draw from different sources and form an opinion. A news channel reporting on current events may use excerpts of copyrighted content while performing its role so long as such usage is an aid to further analyses and viewer information. However, usage beyond that parameter infringes on the broadcaster’s exclusivity as it is no longer mere reporting and amounts to actual coverage.
In the event of a perceived infringement of the official broadcaster’s rights by news channels what legal remedies does your team pursue?
Well, if persuasion fails, the ultimate recourse is to enforce copyright protection under the Copyright Act by instituting proceedings in court. Unfortunately, we have had to take such recourse in the past and have obtained injunctive relief. However, given the court’s predilection to view the facts of each matter in their individual context, there is a lack of consistency in applying thresholds as to what constitutes “fair use” and this has tended to create a certain amount of uncertainty in applying guidelines for news access. Nonetheless, the fact that the courts recognise the need for quantitative thresholds has helped bring about a certain amount of discipline in the reporting of sporting events. Of course, broadcasters will argue that much more needs to be done.
Piracy and failure to pay subscriptions also appear to be significant issues. What does your legal team do to combat these?
Not enough, unfortunately. The sheer volume of content infringement and piracy on the internet makes combating it a herculean task. No sooner is a site taken down than another springs up. We have tied up with one of the major internet companies in an arrangement that allows us to “claim” UGC and that partnership has been working reasonably well. We will need to bolster our monitoring and reporting mechanisms if we are to make any dent in internet piracy. Again, the lack of enforcement is a big issue and this points to infrastructural bottlenecks in training and manpower by the law and order agencies. On the distribution side, under-reporting on subscriber reporting is a big issue. Conservative estimates are that in analogue cable less than 20% of subscribers are actually reported leading to massive losses on revenues to government by way of tax leakages.
Considering the logistical and technical difficulties associated with the issues you deal with, what is the size of your team? Do you use third party counsel and legal service providers?
We have a small team of six in-house lawyers supplemented by external law firms on a case-to-case basis. No law firm really has the size and the breadth to provide all-India coverage and, invariably, companies tend to use different firms in different geographies and so do we. One would imagine that in this electronic and information age, geographical location ought not to matter, but it does.
Are any cases or transactions that you’ve been involved in particularly memorable?
When I was at Philips, we did what I believe was India’s first case on ‘ambush marketing’ – this was during the Cricket World Cup 2003. We were also one of the first to use the ICANN dispute resolution model way back in 1999 to resolve a case of domain name squatting. The IPL rights acquisition had its share of tense moments and arduous “lawyering”. Some of the restructuring transactions with my former employer that involved large units with tangible and intangible assets, a huge workforce- these were done in the days when “right sizing” was yet to become a buzz word – were particularly engrossing and a huge learning experience.
Finally Ashok, would you have any advice for young lawyers reading this?
Nothing beats the sheer thrill of getting your hands well and truly into the nitty-gritty of the deals that you are involved in: nothing is too small or insignificant. The law is an ocean and every day is a learning experience and there’s no better way than learning it on the job. Once learnt in this manner, it becomes part of your DNA and never goes away. God is in the detail.