Broadcasting Rights Across Jurisdictions:A Comparative Analysis of India, the United States,and the European Union

Written by: Tanush Patil, B.A.LL.B (Hons.) | Christ University Pune Lavasa 

JUSTICE

I. Introduction

Broadcasting rights are the cluster of legal rights that enable certain parties usually broadcasters, content producers and rights owners to broadcast, reproduce and control the use of audio-visual and audio content through various broadcast platforms, such as terrestrial, satellite, cable and digital media[1]. These rights are a subset of intellectual property law, often distinct from copyright, that have been referred to as "neighbouring rights" or "related rights" that compensate broadcasters for the substantial economic and organisational investment they make, even when the underlying content may be owned by others.

The scope of broadcasting rights has expanded over the last 30 years. From the initial radio and television broadcast to satellite, digital cable, internet protocol television (IPTV) and to the streaming services of over-the-top (OTT) providers[2]. This has led to a complex problem in the identification of rights, territories and against whom the rights can be exercised.The differences in national legislations and the increasing globalisation of broadcasting make a comparative legal analysis not only a theoretical but practical necessity. Broadcasting and content distributors, regulators and policymakers need to grasp the ways in which  ̰different jurisdictions perceive and safeguard broadcasting rights so they can successfully resolve licensing disputes, combat piracy, and distribute content across borders. This paper engages in such an analysis by considering the legal frameworks in three of the world's largest broadcasting markets  India, the US and the EU  and provides comparative lessons to guide future policy.

II. Conceptual Framework of Broadcasting Rights

The rights associated with broadcasting have shifted from being relatively limited rights to transmit in the early 20th century to a dense web of rights, including signal-based protection, content rights, neighbouring rights and retransmission rights[3]. In its early days, broadcasting was regulated by communications law, not copyright law. The awareness of broadcasters' investment in economic and creative activities gave rise to neighbouring rights  rights related to, but not identical with, copyright  which protect the organisational activity of broadcasters without necessitating originality[4].

The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) was the first international treaty to explicitly acknowledge neighbouring rights for broadcasters[5]. It set minimum standards for the protection of broadcasting organisations, which have the right to authorize or prohibit the retransmission, fixation and reproduction of their broadcasts. Copyright protects original works of authorship - literary, artistic, musical and cinematographic works - that display a threshold level of creativity. Neighbouring rights, on the other hand, protect the contributions of those who make investment in the communication of these works to the public, even though they may not be authors of the work. Neighbouring rights principally benefit broadcasters, performers and phonogram producers[6]. This is important because a broadcaster that broadcasts a live sporting event does not have copyright in the event  which cannot be copyrighted because it is not an authored work  but may have neighbouring rights in the broadcast signal that is used to transmit the event.

The key international treaties that address broadcasting rights include the Rome Convention (1961)[7], the WIPO Copyright Treaty (WCT, 1996)[8] and the WIPO Performances and Phonograms Treaty (WPPT, 1996)[9]. The WIPO Broadcasting Treaty (WBT), not yet in force, is the most developed proposal for signal-based broadcaster protection. The Trade-Related Aspects of Intellectual Property Rights (known as TRIPS) agreement, overseen by the World Trade Organization, also establishes minimum standards of neighbouring rights protection for broadcasters in Article 14[10]. These treaties form the basis of national legislation, but with significant differences in application.

III. Legal Framework in India

The legal framework for the rights of broadcasters in India is largely based on the Copyright Act of 1957, with substantial amendments in 1994 and 2012[11]. The Act is based on the concept of neighbouring rights, which grants special broadcasting reproduction rights to broadcasting organisations in addition to copyright in the content. This approach of two layers of protection (copyright for the creator and neighbouring rights for the broadcaster) is in line with the Rome Convention approach, although India is not a party to the Rome Convention.

Under Section 37 of the Copyright Act, 1957[12], every broadcasting organisation has a special right, called "broadcast reproduction right", in relation to its broadcasts. This right, which lasts for a period of twenty-five years from the year in which the broadcast was made, allows the broadcasting organisation to authorise or prohibit: (a) the re-broadcasting of the broadcast; (b) the communication of the broadcast to the public for a fee; and (c) the making of any sound or visual recording of the broadcast. Section 38 and 38A[13] also confer similar rights in favour of performers, establishing a parallel framework for performers' rights. These rights have been robustly fortified by the Copyright (Amendment) Act, 2012, which widened the ambit of performers' rights and also clarified the distinction between broadcasting right and digital transmission of broadcasts.

The 2012[14] amendments include provisions on digital broadcasting. The term 'broadcast' was broadened to include communication by means of a digital network, ensuring broadcasters' reproduction rights over traditional and internet broadcasting. The amendments also enhanced moral rights protection and introduced statutory licensing provisions for some types of broadcasts, such as statutory licensing under Section 31D, which allows radio and television broadcasters to broadcast literary and musical works in exchange for royalties.

There have been a number of significant cases on broadcasting rights in India. In Star India Pvt. Ltd. v. Piyush Agarwal (2013)[15], the Delhi High Court affirmed that the unauthorised retransmission of a live cricket broadcast over the internet was an infringement of the broadcaster's Section 37 rights. The court dismissed the claim that internet transmission was not broadcasting, upholding the technology-neutral approach to broadcasting reproduction rights. In ESPN Software India Pvt. Ltd. v. Tudu Enterprise (2011)[16], courts ruled on signal piracy in the cable industry, confirming that injunctive relief is an effective remedy against unauthorised retransmission via cable.

IV. Legal Framework in the United States

Interest in broadcasting in the United States is protected primarily by copyright law rather than by neighbouring rights. The U.S. Copyright Act of 1976 provides copyright protection for "audiovisual works" and "sound recordings", both of which can include broadcast material. The fixation requirement (copyright arises only when a work is fixed in a tangible medium) has posed a problem for the protection of live broadcasts, as live events are not fixed. But simultaneous fixation during broadcast is acknowledged to meet the fixation requirement, allowing broadcasters to assert copyright in broadcasts if they are recorded simultaneously[17].

The Federal Communications Commission (FCC) is the primary regulator for broadcasting in the US, a government agency created by the Communications Act of 1934[18]. The FCC allocates broadcast licenses, oversees radio spectrum allocation, and administers regulations on concentration of ownership, indecency, and equal time for broadcast stations. In contrast to the TRAI in India, the FCC does not directly regulate intellectual property rights  which are left to copyright law. But FCC rules on retransmission consent, which have been established under the Cable Television Consumer Protection and Competition Act of 1992[19], provide a strong economic tool for broadcasters to demand payment from cable and satellite distributors for their retransmission of signals.

The lack of explicit neighbouring rights for broadcasters in the US law is an anomaly. The US has steadfastly opposed the conclusion of a WIPO Broadcasting Treaty that would provide for signal-based protection, on the grounds that copyright law already offers sufficient protection to broadcaster rights. In response, some argue that this stance leaves broadcasters vulnerable to signal piracy not involving any underlying copyrighted works  for instance, the unauthorised capture and re-broadcast of a live news broadcast where the underlying video content may not be independently copyrighted by the broadcaster.

The doctrine of fair use, found in Section 107 of the Copyrigh Act, is a major limitation on broadcasting rights in the US. The courts use a four-part test to weigh the evidence in support of a claim for fair use of copyrighted broadcast content: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market for the original. Fair use has been invoked in relation to broadcasting in the context of reporting news excerpts, parody of broadcast material, and educational rebroadcasting. In Sony Corp. of America v. Universal City Studios (1984)[20], the Supreme Court ruled that home video recording of broadcast television was a fair use, with important consequences for the rights of broadcasters vis-à-vis private copying.

Innovation has continually pushed US broadcasting laws. The much-decried decision in Cartoon Network v. CSC Holdings (2008)[21] by the Second Circuit Court of Appeals found no copyright infringement where a cable company provided a remote-storage digital video recorder (DVR) service because copies of the works were held in individual customer buffers, not on the company's servers. In 2014, the Supreme Court in American Broadcasting Cos. v. Aereo, Inc.[22] considered the legality of a service which received over-the-air broadcast signals and made them available to subscribers via the internet, concluding that Aereo "publicly performed" the works and infringed the broadcasters' exclusive right of public performance. These cases highlight the interplay between technological change and broadcasting copyright in US law.

V. Legal Framework in the European Union

The European Union has adopted a more comprehensive approach to harmonizing broadcasting rights law than either the United States or India through a number of directives which must be incorporated into the law of member states[23]. The harmonization project is part of the EU's single market strategy to facilitate the movement of broadcasting services across borders of member states, while ensuring sufficient intellectual property protection. The Audiovisual Media Services Directive (AVMSD), the InfoSoc Directive and the Satellite and Cable Directive are important directives[24].

The directive on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive) sets the basic framework for broadcasting rights in the EU. Articles 3 and 5[25] provide broadcasting organisations with the exclusive right to authorise or prohibit the communication to the public of fixations of their broadcasts, on-demand. Articles 7 and 8 provide the rights of broadcasting organisations to authorize fixation, reproduction and retransmission. It requires member states to ensure effective legal protection against technological measures to circumvent rights management, tackling digital broadcasting piracy.

The EU explicitly acknowledges neighbouring rights for broadcasting organisations, in line with the Rome Convention, to which most EU members are signatories. This offers broadcasters a stronger independent protection in comparison to the US system, allowing them to sue signal pirates even without proving content ownership. The EU framework was further refined in 2019 with the adoption of the Copyright in the Digital Single Market Directive (DSM Directive), which has specific provisions on the use of press publications online (the 'neighbouring right for press publishers') and tools for value-sharing with digital platforms.

Council Directive 93/83/EEC[26] on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (Satellite and Cable Directive) specifically deals with cross-border broadcasting.

Important decisions on the interpretation of broadcasting rights have been made by the Court of Justice of the European Union (CJEU). In the case of FAPL v. QC Leisure (2011)[27], the CJEU ruled on the importation of decoder cards from other EU member states to gain access to satellite broadcasts at a discounted rate, concluding that copyright law could not be invoked to establish absolute territorial exclusivity in conflict with EU freedom of movement. In Reha Training v. GEMA (2016)[28], the court interpreted the concept of 'communication to the public' in the context of broadcast retransmission, laying down the principles for retransmission in hotels and commercial premises. These have had a major impact on territorial licensing of sports rights and broadcasting in the EU.

VI. Comparative Analysis

The first major difference between the three countries lies in whether neighbouring rights for broadcasters exist at all. India and the European Union both have statutory neighboring rights for broadcasters, namely, Section 37 of the Copyright Act, 1957[29] for India, and InfoSoc Directive, and national implementations of Rome Convention in Europe. The United States, however, does not give neighboring rights to broadcasters, using copyright of broadcasting material and retransmission consent as substitutes[30]. As a result, US broadcasters lack legal tools to stop piracy of their signals when there is no underlying copyright infringement involved.

Both the EU and India have systems where copyright or neighboring rights protections and industry regulations work in tandem. For example, in India, it is the Telecom Regulatory Authority of India (TRAI)[31] and Ministry of Information and Broadcasting (MIB), while in Europe, it is Audiovisual Media Services Directive (AVMSD)[32]. The same is true of the United States, which combines its copyright law and regulation of FCC, albeit in different proportions. While the US regulatory system has a greater emphasis on allocation of spectrum, restrictions on ownership, and economics of retransmission consent, IP issues are dealt with separately via copyright litigation.

None of the three countries has managed to integrate the emerging OTT providers into their existing regulatory frameworks for broadcasting reproduction rights. India has adopted new amendments to its Copyright Act from 2012, which created broadcasting reproduction rights for digital communications and introduced a technology-neutral approach to broadcasting rights protection; however, minimal regulation of OTT services' content applies in India. Under the European Union's Audiovisual Media Services Directive (AVMSD), video-sharing platforms and on-demand services are included, thereby creating an all-encompassing set of regulations that cover OTT services. In the United States, copyright legislation is employed to regulate OTT services and, specifically, addresses the public performance right and mechanical licenses; however, the applicability of the latter to OTT services remains controversial, as evidenced by recent litigation concerning OTT royalties and passage of the Music Modernization Act of 2018.

Civil and criminal enforcement mechanisms are both applicable under Indian copyright law to address broadcasting rights infringement, including injunctive relief, compensatory and punitive damages, profit recovery, and imprisonment. Increasingly popular dynamic injunction procedures are employed in addressing issues related to online piracy. In Europe, the Enforcement Directive (2004/48/EC) and the Digital Single Market Directive contain strict enforcement provisions regarding copyright infringements through content-sharing platforms.

VII. Contemporary Challenges

Online piracy continues to pose the greatest threat to broadcasting rights systems worldwide. Piracy has moved from the offline phase to online streaming platforms whereby illegal IPTVs, unauthorized re-transmission platforms, and live streams on social media sites facilitate easy global access to pirated content. The matter is rather expensive as according to research by the Digital TV Research Group, pay-TV piracy is responsible for a global loss of more than USD 50 billion annually[33]. Online piracy poses another challenge owing to the sophistication and operation of the pirates from other countries lacking intellectual property infrastructures.

The introduction of AI and ML technology into broadcasting rights has posed various challenges alongside promising many benefits. First, the emergence of AI-generated content such as news anchors generated by AI, automatic sports commentary, and AI-generated music in broadcasts raises some challenges concerning the protection of copyrights and neighboring rights of such broadcasts. Secondly, the use of AI and ML in broadcasting poses many benefits, particularly in recognizing contents and preventing piracy. However, the use of the technology may lead to over-blocking of legal content.

Broadcasting rights to sports events are the most economically profitable and legal complex aspect of broadcasting rights laws. Rights to air are granted in territorial limits, where each broadcaster will have the right to transmit from only one country or area. Since sports fans and audiences are now globally connected and the immediate availability of sports information on the Internet, numerous cases of violations of territorial limitations occur[34]. Even such a practice as "geo-blocking," where only access to the licensed material is restricted to a designated territory, is challenged today. This is not allowed in the EU due to the CJEU decision in the case of Football Association Premier League Limited v. British Telecommunications plc & Ors (FAPL)[35], which does not allow the implementation of copyright legislation to enforce the absolute territoriality principle in the single market.

There is a clash of interests of the rights holder and public interest concerning sports broadcasts. Certain sporting events were required to be transmitted in accordance with the 'must-carry' rule, which would force their transmission on free-to-air broadcasters. For example, according to the AVMSD directive of the EU[36], certain sporting events could be classified as 'important,' requiring broadcasting by free TV.

VIII. Recommendations and Policy Suggestions

To begin with, there has to be more harmonization of standards regarding broadcasting rights across nations. The WIPO Broadcasting Treaty that has been stalled for a while should be re-activated and finalized, which would result in the implementation of a neighboring right for broadcast companies depending on signals irrespective of whether they own the underlying material. In this treaty, countries like the US, which are usually reluctant in implementing neighboring rights due to past experiences, will be convinced to join in view of the benefits associated with law enforcement.

It is critical that all three jurisdictional systems develop better enforcement mechanisms against piracy with the understanding that piracy currently cuts across boundaries. Dynamic injunctions, which enable inclusion of new pirate websites without initiating a new judicial process, should be embraced across the board. Courts within jurisdictions like India, which does not have specific intellectual property courts yet, should be trained on broadcasting rights and digital piracy. There is need for enhanced cooperation among regulatory agencies TRAI, FCC, and member states' authorities in the EU with IP owners.

Any modifications in the law would have to factor in not only the security of commercial interests but also the promotion of competition and consumer access to broadcasting programs. An excessive concentration in the market for broadcasting rights, especially in regard to sporting events, may restrict consumer access and provide scope for broadcasters to establish dominance in the market. Anti-trust legislation in each of the three nations would have to address issues concerning bundling and exclusive dealings in this industry. The practice of must-carry for public service broadcasting would need to be upheld and extended to the realm of online media distribution.

The regulatory regime governing broadcasting licenses must ensure that consumers can gain access to affordable content regardless of the medium and jurisdiction. Compulsory licensing for certain broadcast content, akin to Section 31D of the Indian Copyright Act, may be implemented to safeguard against incumbent broadcasters locking out the entrant from vital content.

IX. Conclusion

In other words, the comparison of broadcasting rights in the United States, India, and Europe proves the existence of convergence and divergence between the methods of broadcasting rights protection in some of the largest media markets. Firstly, it can be stated that the similarity between the two approaches to broadcasting rights in Europe and India lies in considering the broadcasting right as something different from the ownership right, in other words, in acquiring rights to one's broadcast signal rather than being limited by the copyright law only.

In terms of finding the way for the development of broadcasting rights in the future, one should focus on developing a flexible legal framework that would change alongside new technologies but still would not ignore the principles of intellectual property rights and their importance for promoting creativity. In light of the development of such technological novelties as AI and VR in broadcasting, one can safely say that the above-mentioned copyright and signal rights will inevitably transform. However, the above comparison of broadcasting rights clearly indicates that the neighbouring rights approach remains the most efficient solution to the problem.

[1] Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 485–90 (4th ed. 2019).

[2] Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations art. 13, Oct. 26, 1961, 496 U.N.T.S. 43.

[3]Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 485–88 (4th ed. 2019).

[4] Lucie Guibault & Stef van Gompel eds., Reform of Copyright 233–35 (2012).

[5]Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations art. 13, Oct. 26, 1961, 496 U.N.T.S. 43.

[6] Goldstein & Hugenholtz, supra note 34, at 487.

[7] Rome Convention arts. 7, 10, 13.

[8] WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17.

[9] WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17.

[10] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 14, Apr. 15, 1994, 1869 U.N.T.S. 299.

[11] Copyright Act, No. 14 of 1957, §§ 37–39A (India), amended by Copyright (Amendment) Act, 1994 and Copyright (Amendment) Act, 2012.

[12] Copyright Act §§ 14, 37.

[13] Copyright Act §§ 38, 38A

[14] Copyright (Amendment) Act, 2012, No. 27 of 2012 (India).

[15] Star India Pvt. Ltd. v. Piyush Agarwal, CS (OS) No. 3611/2012 (Delhi High Ct. 2013).

[16] ESPN Software India Pvt. Ltd. v. Tudu Enterprise, Calcutta High Ct. (2011).

[17] Copyright Act of 1976, 17 U.S.C. §§ 101–122; Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 510–13 (4th ed. 2019).

[18] Communications Act of 1934, 47 U.S.C. § 151.

[19] Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460.

[20] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 454–55 (1984).

[21] Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130–33 (2d Cir. 2008).

[22] Am. Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 441–42 (2014).

[23] Directive 2001/29/EC of the European Parliament and of the Council, 2001 O.J. (L 167) 10 [hereinafter InfoSoc Directive]; Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 521–24 (4th ed. 2019).

[24] Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations art. 13, Oct. 26, 1961, 496 U.N.T.S. 43; InfoSoc Directive, supra note 104.

[25] Directive 2001/29/EC arts. 3, 7, 8, 2001 O.J. (L 167) 10

[26] Council Directive 93/83/EEC of 27 September 1993 on the Coordination of Certain Rules Concerning Copyright and Rights Related to Copyright Applicable to Satellite Broadcasting and Cable Retransmission, 1993 O.J. (L 248) 15.

[27] Joined Cases C-403/08 & C-429/08, Football Ass’n Premier League Ltd. v. QC Leisure, 2011 E.C.R. I-9083

[28] Case C-117/15, Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v. GEMA, ECLI:EU:C:2016:379.

[29] Copyright Act, No. 14 of 1957, § 37 (India); Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001 O.J. (L 167) 10

[30] Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 503–28 (4th ed. Oxford Univ. Press 2019).

[31] Telecom Regulatory Authority of India Act, No. 24 of 1997 (India).

[32] Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, 2018 O.J. (L 303) 69.

[33] Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 529–31 (4th ed. Oxford Univ. Press 2019).

[34] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 14, Apr. 15, 1994, 1869 U.N.T.S. 299; Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004, 2004 O.J. (L 157) 45.

[35] Football Ass’n Premier League Ltd. v. British Telecommunications plc, [2017] UKSC 4, [2017] 1 W.L.R. 3251 (UK).

[36] Joined Cases C-403/08 & C-429/08, Football Ass’n Premier League Ltd. v. QC Leisure & Karen Murphy v. Media Protection Services Ltd., 2011 E.C.R. I-9083.