KhelAdhikar

Play it Even

Limiting the contours of mandatory sharing -A detailed analysis of the Union of India v BCCI decision

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By Aman Gupta,

Sports and Gaming Lawyer

Email id- amangupta.nujs@gmail.com

 

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Introduction

The Supreme Court of India, in the case of Union of India v. Board of Control for Cricket in India[1], has recently held that the live feed of cricket matches received by the Prasar Bharati, under the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, could only be re-transmitted on its own terrestrial and Direct to Home (DTH) networks. The present blog discusses the factual background of the decision and analyses the decision of the Hon’ble Court.

Factual Background

With the increasing interest of people in sports and the development of modern forms of communications, broadcasting and media rights have become an important source of revenue for the sporting bodies. Such rights are auctioned for significant monetary sums. An example would be the Media Rights Agreement in the present case, whereby Star India Private Limited (“Star”) paid Board of Control for Cricket in India (“BCCI”) a sum of Rs. 3851 crores for the right to telecast cricketing events in India for a period of 2012-2018.[2]

Since such rights agreement are exclusive in nature, a situation can arise in which the viewership of sports becomes limited due to issues of pricing/connectivity. To deal with such a situation, the Indian legislature enacted the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 (“Sports Act”), to ensure that the broadcasting signals of sporting events of national importance are shared with the Prasar Bharati. Prasar Bharati then retransmits the same through its own terrestrial and Direct-to-Home networks. The aim of the Sports Act is providing access of such sporting events to the largest number of viewers and listeners.

The effect of the conjoint reading of the legislations was that cable operators could carry the live feed of the matches without subscribing to the channels of Nimbus/Star, leading to loss of revenue to the media right owners/holders.

BCCI and Nimbus Communications Limited, to whom the media rights had originally been assigned, had filed a writ petition before the Delhi High Court seeking directions, inter alia, that (i) Doordarshan’s Satellite Transportation Feed of live broadcasting signals of cricket matches to the Doordarshan Kendras and transmission towers be encrypted; and (ii) no television network/DTH network/multisystem network/local cable operator broadcast the matches without a license. However, the single judge bench of the Delhi High Court rejected the prayers, holding that the issues related to policy.

BCCI and Nimbus appealed the decision before the division bench of the Delhi High Court. BCCI and Nimbus also filed an additional writ in the Delhi High Court for striking down Section 3 of the Sports Act to the extent it related to test matches along with a number of notifications.

In the meantime, the BCCI entered into a fresh Media Rights Agreement with Star for the duration of 2012 to 2018. Consequently, Star and ESPN Software Private Limited (whom Star has engaged for distribution services) replaced Nimbus in the petition.

The division bench of the Delhi High Court allowed the appeal and the writ petition, holding that the shared live feed of the matches should not be placed in channels of Doordarshan which are to be compulsorily carried by the cable operators under Section 8 of the Cable Television Networks (Regulation) Act, 1995 (“CTN Act”).

Aggrieved by the decision of the Delhi High Court, the Union of India and Prasar Bharati, amongst others, appealed to the Supreme Court.

Legal Background

The case involves the inter-play of three legislations: Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter the “Prasar Bharati Act”); the CTN Act; and the Sports Act.

The Prasar Bharati Act was enacted with the aim of establishing Prasar Bharati and defining its functions and powers. Section 12(2)(e) of the Prasar Bharati Act provides that Prasar Bharati shall be guided by the objective of providing coverage to sports and games to encourage competition and spirit of sportsmanship. Further, Section 12(3)(c) of the Prasar Bharati Act enables Prasar Bharati to negotiate for purchase of, or other acquire, programmes and rights or privileges in respect of, inter alia, sports for broadcasting.

The CTN Act was passed in order to regulate operation of cable television networks in India. The CTN Act defines who a cable operator is. Further, Section 8 of the CTN Act provides that the Central Government may issue notification specifying names of Doordarshan channels to be mandatorily carried by the cable operators in their cable service. By a notification, DD1 (National) channel and DD (News) channel and one regional channel has been notified as mandatorily required to be carried by cable operators.

Arguments

The Union of India argued that reading the provisions as being limited to the re-transmission of the signals to only the terrestrial and DTH networks of Prasar Bharati would be against the mandate of the Sports Act. It was also argued that the possible loss of revenue arising to the content rights owners/holder has been taken care of by the virtue of Section 3(2) of the Sports Act. It was finally argued that the mandatory duty on the cable operators under Section 8 of the CTN Act suggests that the Sports Act and CTN Act operate harmoniously in their respective fields and must be read coextensively.

On behalf of Home Cable Network Private Limited and Sopan Foundation, it was argued that in the present case would not attract Article 19(1)(a) of the Constitution and, at best, only the “slice of the cake becomes a little smaller”.

 

Respondents

BCCI and Star argued that telecast of cricket matches falls within the meaning of ‘cinematograph film’ under Section 2(f) of the Copyright Act, 1957 and that Section 3 of the Sports Act curtails those rights. It was further argued that the Sports Act is expropriatory in nature and must be strictly construed. It was also argued that deviating from the plain language of Section 3 of the Sports Act would infringe the rights of BCCI under Article 19(1)(a) of the Constitution.

Decision

At the outset, the Supreme Court refused to delve into question of whether the live telecast of a cricket match amounts to production of cinematograph film.

The Court adopted a textual approach. This was because the Court, like the division bench of the Delhi High Court[3], found Section 3 of the Sports Act to be expropriatory in nature, despite the provision of sharing of revenues between content rights owner/holder and Prasar Bharati. The Court noted that there was no recognition in Section 3 of the Sports Act of the requirement provided in Section 8 of the CTN Act. In the absence of any legislative intent, the Court held Section 3 of the Sports Act operates on its own without being controlled by the Section 8 of the CTN Act. Interestingly, the Court noted that any other view would lead to a “fragility” in Section 8 of the CTN Act.[4]

The Court then noted that the legislature had not specified any particular channel which must be carried by the cable operators under Section 8 of the CTN Act, and that the obligation to transmit DD1 channel and transmission of live feed of sporting events of national importance was merely co-incidental. The Government could denotify DD1 from the notification under Section 8. With this hypothetical situation, effect and operation of the Sports Act could not be decided on the basis of discretion of the Government.

In light of the discussion above, the Court went on to hold that in light of the language of the Sports Act, the transmission of the feed was to enable Prasar Bharati to transmit the same on its own terrestrial and DTH networks and not to cable operators.

Conclusion

Two aspects of the decision need attention. First is the Supreme Court holding (and affirming the decision of the division bench of the High Court) that the Section 3 of the Sports Act to be expropriatory in nature. In my experience, this aspect has been usually dealt with in cases of land acquisition and taxing statutes. However, undoubtedly, the Supreme Court was correct in applying the principles in the present case.

Second is the fact that the Supreme Court refused to delve into the issue of whether the live telecast of the match would be tantamount to a cinematograph film under the Copyright Act. As has been noted[5], if the Court had accepted the contention, it would have taken away broadcast reproduction rights that could be claimed by Prasar Bharati.

The impact of the decision was felt with the FIFA U17 World Cup, with people caught unawares about the impact of the decision. The decision will have a huge impact on the common people, many of whom still watch the matches on Doordarshan despite subscribing to different cable operators/DTH networks.

The author Aman Gupta can be contacted at- amangupta.nujs@gmail.com

[1] Union of India v. Board of Control for Cricket in India and Ors., Supreme Court of India, SLP(C) Nos. 4574-4575 of 2015

[2] Paragraph 55, Board of Control for Cricket in India v. Prasar Bharati Broadcasting Corporation of India, MANU/DE/0263/2015

[3] Paragraph 52, Board of Control for Cricket in India v. Prasar Bharati Broadcasting Corporation of India, MANU/DE/0263/2015

[4] Para 28

[5] https://spicyip.com/2017/10/part-ii-union-of-india-v-bcci-doosra-from-the-supreme-court-on-broadcast-of-cricket-matches-by-prasar-bharti.html

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