Mandatory Sharing, News Access and Fair Use Standards
By Roshan Gopalakrishna and Vidya Narayanaswamy
In this article, we describe and summarise the current state of Indian law and international standards in relation to the right to broadcast official content from sporting events. This module will discuss the current legal framework in India insofar as what news broadcasters ought to consider before covering a sporting event. The means of limiting and maintaining exclusivity with respect to broadcasting will also be discussed, including the wide acceptance of fair use standards and the official endorsement of accreditation and media guidelines. Lawmakers will inherently attempt to balance the importance of maintaining commercial value in sporting events through broadcasting, and the need to enable limited broadcasting of certain events and reporting of these events for the public good. The methods used in India to achieve this balancing act will be discussed below.
Broadcast rights are a valuable asset in sport. The sale of exclusive broadcast rights often commands staggering fees from rights holders. In the majority of cases, broadcast rights for a league are sold by the sporting organisation conducting it, such as the NBA, the FA Premier League or the BCCI. A percentage of the revenues generated are then distributed equally amongst the participating teams. Sale of telecast rights, along with gate revenues and sponsorship as well merchandising revenues constitute a major source of income to sports organisations and teams.
Broadcast Laws in India
The term “broadcasting service” is defined in the Telecom Regulatory Authority of India Act, 1997 as a service which is made available to users by means of any transmission or reception of signals, writing, images, sounds or intelligence of any nature by wire, radio, visual or any other electronic means. A directive issued under this Act authorises the government to notify broadcasting services as telecommunication services, thereby giving the Telecom Regulatory Authority of India (TRAI) the authority to regulate broadcasting and cable services in India.
In the case of Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal (CAB), the principal question before the Supreme Court was whether a cricket body could grant exclusive telecast rights to a private channel rather than to Doordarshan. The Court held that airwaves or frequencies were public property and their use had to be controlled and regulated by a public authority. Further, the Court held that the right to convey a telecast is a species of the right to freedom of speech and expression, and such right is subject to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution. Broadcasting is a “means of communication”, and, therefore, no private or public organisation could claim monopoly over it. The Supreme Court also instructed the Central Government to take immediate steps to establish an independent, autonomous public authority to regulate the use of airwaves. The Court concluded by saying that “the broadcasting media should be under the control of the public as distinct from the government.”
A potential issue presented in relation to the broadcast rights of a “sporting event of national significance” in India relates to the mandatory sharing of sports broadcasting signals with Prasar Bharati by virtue of The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007. This unique legislation provides that no content rights holder/owner or television/radio broadcasting service provider can telecast live a “sporting event of national significance” unless it simultaneously shares the live broadcast signal (devoid of advertisements) with Prasar Bharati to enable Prasar Bharati to re-transmit the same. The Act does provide for advertisement revenue sharing between the content rights owner or holder and Prasar Bharati in the ratio of not less than 75:25 in case of television coverage and 50:50 in case of radio coverage. Notably, there is no provision giving the content rights owner or holder any control over or opportunity to object to the nature and type of advertisers that Prasar Bharati might engage with.
The broadcasting signals referred to also include live signals of pre-event and post event coverage. Prasar Bharati is under no obligation to carry the logo of any channel available in India and has the rights to generate pre, post and intermission programming.
The criteria to determine what constitutes “sporting events of national importance” have not been specified in the Act. The list of sporting events to which the Act applies will be determined and notified by the Ministry of Information and Broadcasting in consultation with the Ministry of Youth Affairs and Sports and the Prasar Bharati. Currently, as per the government’s notification, the “sporting events of national importance” with respect to cricket are:
(i) All official one day and T-20 matches played by the Indian Men’s Team and such test matches as are considered to be of high public interest by the government; and
(ii) The Semi-finals and Finals of the Men’s Cricket World Cup and the ICC Champions Trophy, regardless of whether the Indian team is participating therein.
Non-compliance by the content rights owner of the aforementioned rules enables the Central Government to impose penalties, including suspension or revocation of licences, permissions or registration, subject to the condition that the amount of a pecuniary penalty shall not exceed Rupees One Crore. However, no penalty shall be imposed without giving a reasonable opportunity to the service provider to be heard.
Fair Use and Fair Dealing
hile the unauthorised broadcasting of a copyrighted work to the general public amounts to a copyright infringement, there remains a degree of ambiguity on what constitutes “fair use” or “fair dealing” (an affirmative defence to a claim of copyright infringement) in the context of journalistic or news-reporting usage of sports match footage. Courts have attempted to rationalise the use of this footage by the electronic media but have been unwilling to elucidate a bright-line test to determine the same.
In Prasar Bharati v. Sahara TV Network Pvt. Ltd., the Delhi High Court examined the question whether the News Access Rules imposed by Prasar Bharti are just, fair and proper. The Court approved the legitimacy of the Rules and held that news channels could, in any 24-hour period, air content with up to three repetitions of any individual clip with total duration not exceeding seven minutes of footage, with the maximum permissible length of each individual clip being 120 seconds. The court further stated that the use of this time shall only be for delivering cricket news without any commercial programming or advertisements immediately before, during and after the cricket news (i.e., commercial repackaging of the content). In ESPN Star Sports vs. Global Broadcast News Ltd., the court held that to determine whether conduct is “fair dealing”, the context, the length of the original work borrowed and the purpose must be taken into account.
In the context of relaying footage of the XIX Commonwealth Games, 2010, it was recently held that usage of footage is permissible in so far as it is consistent with the principles of fair use. Although fair use was not defined, it was held that channels must keep in mind the International Television Access Rules applicable to Delhi Commonwealth Games, 2010 in determining the extent of fair use.
In another case before the Delhi High Court, Neo Sports sought a permanent injunction against India TV to restrict them from exceeding their fair dealing rights in the reporting of an on going India-Australia Cricket Series. In considering this matter, the Court commented that the usage of broadcast by India TV is to be governed by the decision in Prasar Bharti vs. Sahara TV, wherein the Court had directed that news channels could telecast up to a maximum of seven minutes of broadcast in 24 hours, that at least a 60 minute delay from live would be necessary and that such broadcast shall only be for giving of cricket news without any commercial programming, advertisements before, during and after the cricket news.
News Access Guidelines
More recently, official broadcasters of cricket series and events have entered into agreements with the News Broadcasters Association in India which specify limitations and guidelines that the news broadcasters will comply with in respect of their use of cricket match play footage. While the enforceability of these agreements has thus far not been tested in an Indian court, a recent decision clarified that any guidelines regarding news access issued by an official sports broadcaster must be issued at least two weeks prior to the relevant event.
The precedents cited above indicate that the laws with respect to broadcasting rights of sporting events are still developing. Notwithstanding recent developments in these laws, it is clear that broadcasters must act consistently with ‘fair use’ standards and that any violations of these standards could lead to sanctioning by the courts under relevant copyright law. the spirit, if not the letter, or officially issued broadcast guidelines must be complied with by broadcasters. Accordingly, while the legal framework is still developing in the area of broadcast rights, there are mechanisms in place to restrict improper broadcasting of sporting events, in an attempt to maintain the core commercial value of the sporting events. Ultimately, the law will attempt to strike the optimal balance between the exclusivity necessary to shore up the sports business model and the rights of the public to interact with content from the sporting event through diverse channels and different voices. With the economics and the delivery technologies constantly evolving this will continue to be a dynamic and interesting subject matter of legal development.
© The Sports Law & Policy Centre