Why Copyright Cannot be Claimed on Broadcasting - A brief Overview

This post is meant to explain basic principle as regards why copyright cannot be claimed for broadcasting. Copyright, as provided in Black’s Law Dictionary, can be defined as a right granted by the statute to the author or originator of certain literary or artistic production, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. In India, matters relating to copyright are governed by Copyright Act, 1957. Section 13 of the Act brings into notice the works on which copyright can be claimed and it can be read as –

“13. Works in which copyright subsists.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) [sound recordings;]”

Further Section 14 of the Act defines “Copyright”. Broadcasting as general does not find itself placed under this Section and it has separately been dealt under Section 37 under the head Broadcast Reproduction Right. It will not be difficult to assume that Section 14 does not provide any protection to broadcasting right and the same can be framed out from the State of Objects and Reasons of the Copyright Act, 1957 which states that

(11) Certain rights akin to copyright are conferred on broadcasting authorities in respect of programmes broadcast by them.

It clearly indicates that certain rights similar to that of copyright are conferred on broadcasting authorities but not copyright itself. Section 37 was inserted by means of an amendment to the act in the year 1994 which included the right to be conferred on broadcasting authorities and further it provides a list where broadcasting right can said to be infringed as distinct from copyright infringement. Leading case in the relation is ESPN Star Sports v. Global Broadcast News Ltd. & Ors., decided by Delhi High Court in the year 2008. It specifically deals with the issue regarding the distinction between Copyright and Broadcasting rights in detail. Further this issue was discussed in Uruguay round of the WTO Agreement of Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994. In addition to this, issue as regards satellite broadcasting has specifically been dealt in cases Raj Video Vision v. M/s Sun TV, 1994 (2), Madras Law Weekly 158, AA Associates v. Prem Goel AIR 2002 Del 142. M/s Video Master v. M/s Nishi Productions, 1998 (18) PTC 117. It can be said that Section 13 and 14 of the Copyright Act does not cover broadcasting rights and copyright cannot be claimed for broadcasting, rather broadcasting rights can be claimed. Further if broadcast work is recorded in some material form, then copyright can surely be claimed for it. Further chapters dealing with remedies for copyright and broadcasting rights are distinct from each other. The relevant portion of the Uruguay Round states that –

“Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).”

Further Section 2 (dd) of the Copyright Act defines the term broadcast

“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;”

Section 37 (3) provides the acts where broadcasting right can said to be infringement and it can be read as

“(3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the license of the owner of the right does any of the following acts of the broadcast or any substantial part thereof-

(a) re-broadcasts the broadcast; or

(b) causes the broadcast to be heard or seen by the public on payment of any charges; or

(c) makes any sound recording or visual recording of the broadcasting; or

(d) makes any reproduction of such sound

recording or visual recording where such initial recording was done without license or, where it was licensed, for any purpose not envisaged by such license; or

(e) sells or hires to the public or offers for such sale or hire, any such sound recording or visual recording referred to in clause (c) or clause (d), shall, subject to the provisions of section 39, be deemed to have infringed the broadcast reproduction right.”

It can be said that there was clear legislative intent to create separate rights for broadcasting and copyright cannot be claimed for the same. This can be further derived from Section 13 and 14 of the Copyright which does not cover Copyright. Court in ESPN case clearly of the view that there is a clear distinction between Copyright and Broadcasting Right and relevant portion of the case can be read as –

“19. Thus, in our view the above distinction clearly indicates that the Parliament clearly intended to provide separate and distinct rights to the broadcasting organisations to protect their rights against third parties. Satellite broadcasting rights are treated as separate rights and the said rights are recognized throughout the world as independent rights. This is also entirely in keeping with several radical technological advances in the field of telecommunications which could not have been contemplated when the 1957 Act was enacted.”

In the case of Raj Video vision v. M/s Sun TV, 1994 (2) Madras Law Weekly 158, court was of the view that “the Satellite television broadcasting right is an independent right for which the plaintiff cannot claim any copyright”. Though an independent copyright subsist in the work stored in the material form, and usually it is done in the form of a cinematographic film.