India: Supreme Court directs Prashar Bharati not to re-transmit Live Sporting Events to Private Cable Operators

In a recent judgment delivered by the Supreme Court of India, Hon’ble Justices Ranjan Gogoi and Navin Sinha, upheld a ruling of the Delhi High Court and said that the live feed received by Prasar Bharati, from content rights owners is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH (Direct to Home) networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network.

Brief facts

• The Board of Control for Cricket in India (‘hereinafter referred to as ‘the Respondents’) is the approved national level body holding virtually monopoly rights to organize cricketing events in the country. There is currently in force a Media Rights Agreement between Star India Private Limited and BCCI under which Star India Private Limited has been granted exclusive rights to telecast cricketing events that take place in the country.
•  Star India Private Limited, in turn, has engaged ESPN Software Private Limited for distribution, inter-alia, of the telecast of all cricketing events covered by the Media Rights Agreement.
• The BCCI and its original assignee, Nimbus Communications Limited had earlier moved to the Delhi High Court by way of Writ Petition (No.7655 of 2007) praying for directions to be given to the Prasar Bharati Broadcasting Corporation and the Union of India to encrypt Doordarshans Satellite Transportation Feed of live broadcasting signals of cricket matches organized by the BCCI to the Doordarshan Kendras and transmission towers throughout India for subsequent broadcasts on Doordarshans terrestrial and DTH networks.
• In addition to the above, an appropriate declaratory relief was also prayed for to the effect that no television network, DTH network, Multisystem network or local cable operator can broadcast such events without a licence from the content rights owners/holder was also sought. The said writ petition was dismissed by the learned Single Judge of the High Court primarily on the ground that the matter relates to the policy domain, and, therefore, is beyond judicial reach and scrutiny. Aggrieved by the decision of the Single Judge LPA No.1327 of 2007 was filed before the High Court.
• Writ Petition (No.8458 of 2007) was also filed initially by BCCI and its erstwhile assignee Nimbus for striking down Section 3 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 (hereinafter referred to as the ‘Sports Act, 2007’) insofar as it relates to cricket test matches and also striking down the notification dated September 13, 2000, issued by the Central Government notifying DD1 (National) channel and DD (News) channel as mandatory channels to be carried compulsorily by the Cable Operators. In the same writ petition the notifications dated July 3, 2007 and October 19, 2007, notifying the sporting events mentioned therein in respect of cricket to be of national importance were also challenged. Also challenged the order of the Government of India dated May 29, 2007.
• Subsequently, ESPN Software India Private Limited and Star India Private Limited had been impleaded in the aforesaid writ petitions in view of Media Rights Agreement.
• The aforesaid appeal (LPA No.1327 of 2007) and Writ Petition (No.8458 of 2007) were allowed by the Division Bench by holding that on an interpretation of the provisions of Section 3 of the Sports Act, 2007 and Section 8 of the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as the ‘Cable Act, 1995’) the signals received by Prasar Bharati from the Respondents should not be placed in the designated Doordarshan channels which are to be compulsorily carried by the Cable Operators under Section 8 of the Cable Act, 1995.
• Aggrieved by the order of the Division Bench of the Delhi High Court, the present appeals have been filed by the Union of India, Prasar Bharati, Home Cable Network Private Limited and Sopan Foundation (hereinafter referred to as ‘the Appellants’)

Appellant’s Submissions

• The object of the The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter referred to as the ‘Prasar Bharati Act, 1990’), is to reach maximum number of citizens and provide access to news and information to citizens living in the remote villages and hamlets of the country. Under Section 12 of the Prasar Bharati Act the primary duty of the Corporation is to organize and conduct public broadcasting services to inform, educate and entertain the public and to ensure a balanced development of broadcasting on radio and television. Section 12(2)(e) of the Prasar Bharati Act, 1990 clearly stipulates that Prasar Bharati shall, inter alia, be guided by the objective of “providing adequate coverage to sports and games so as to encourage healthy competition and the spirit of sportsmanship.”
• Similarly, the object behind the enactment of the Sports Act, 2007 is to provide access of sporting events of national importance to a large number of viewers on free to air basis. It is in the above light that the provisions of Section 3 of the Sports Act, 2007 and Section 8 of the Cable Act, 1995 have to be construed.
• The aforesaid provisions should not be read and understood to be confined to re-transmission of the live signals compulsorily shared with Prasad Bharati by the content owners only on the terrestrial and DTH networks of Prasar Bharati. Any such view would be counter-productive and go against the mandate of Section 3. Sub-section (2) of Section 3 was also pointed out to contend that the possible loss of revenue to the content rights owners/holder due to the mandatory requirement of sharing live feeds with the Prasar Bharati has been adequately taken care of by the scheme of arrangement of revenue contained in sub-section (2) of Section 3. It is urged that it is in the light of the above that the provisions of Section 8 of the Cable Act, 1995 have to be construed.
• It is further contended that though the Cable Act, 1995 is anterior to the enactment of the Sports Act, 2007, Section 8 of the Cable Act, 1995 should not be understood to have been whittled down by the enactment of Section 3 of the Sports Act, 2007 in the absence of any conspicuous indication of such legislative intent in Section 3. In fact, the mandatory duty cast on the Cable Operators by Section 8 is another step in the direction of providing access to the masses which clearly suggests that the provisions of the two enactments operate harmoniously in their respective fields without impacting each other.

Respondent’s Submissions

• It was contended that ESPN Software Private Limited and Star India Private Limited under the Media Rights Agreement will be seriously infringed in the present case if the view taken by the High Court is to be adopted. Though such rights may seemingly come under Section 37 of the Copyright Act, 1957, it is argued that the telecast of the cricket matches is like production of a cinematograph film within the meaning of Section 2 (f) of the Copyright Act.
• There is a statutory curtailment of the said right under Section 3 of the Sports Act, 2007, the extent of which must be understood to be confined to the explicit contours of the said provision which cannot be readily and easily extended. Any unwarranted extension would amount to an invasion of the copyright/broadcasting right of the Respondents. The legislation is expropriatory in character. It must, therefore, be strictly construed.
• It is urged that Section 8 (1) engrafts a must carry obligation and such must carry obligation cannot extend the scope of the must share mandate contained in Section 3. Emphasis is laid on the words “its terrestrial networks and Direct-to-Home networks” appearing in Section 3 to contend that the must share mandate must be understood to be to enable the Prasar Bharati to re-transmit the same on its terrestrial and DTH networks only.
• Star India Private Limited specifically contended that a huge amount of revenue of over INR 3000 crore (approx. USD 468640200) has been paid by them towards broadcasting/telecasting rights which must be allowed to have full effect and any restriction in the exercise of such right, if at all, can operate only to the extent explicitly provided for in Section 3.
• BCCI, specifically argued that any extended meaning to Section 3 beyond what flows from its plain language would have the effect of infringing the rights of the BCCI under Article 19(1)(a). Several precedents have been cited to contend that the right under Article 19(1)(a) would extend to receipt of information also.
• Article 19(1)(a) is certainly expansive to include receipt of information. The same is to the effect that in the present case it is not the contention of BCCI that the provisions of Article 19(1)(g) of the Constitution have been violated. Insofar as the provisions of Article 19(1)(a) of the Constitution is concerned, it was contended that, at best, the present instance is a case where the slice of the cake becomes a little smaller; but that by no means would attract Article 19(1)(a).

Judgment

• Much argument had been advanced as to whether Section 3 of the Sports Act, 2007, is expropriatory in nature. The Court had no hesitation in holding the said provision of the Act to be of such a nature to the extent that it curtails or abridges the rights of a content owner or holder and television or radio broadcasting service provider.
• Sharing of revenue between the content rights owner or holder and the Prasar Bharati envisaged by Section 3(2) of the Sports Act, 2007, would hardly redeem the situation to take the Sports Act, out of the category of expropriatory legislation. Section 3 therefore, has to be interpreted very strictly.
•  Not only did the Court not find in the provisions of Section 3 of the Sports Act, 2007, any recognition of the requirement stipulated in Section 8 of the Cable Act, 1995; the plain language of the said provision i.e. Section 3 of the Sports Act, 2007, made it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable Prasar Bharati to transmit the same on “its terrestrial and DTH networks”. If the legislative intent was to allow Section 3 not to operate on its own language but to be controlled by Section 8 there would have been some manifestation of such intent either in Section 3 or in Section 8 (by an appropriate amendment thereto).
• In the absence of any such legislative intent it will only be correct to hold that Section 3 of the Sports Act, 2007, operates on its own, without being controlled by any of the conditions or stipulations contained in Section 8 of the Cable Act, 1995.
• Therefore, the Court came to the conclusion that under Section 3 of the Sports Act, 2007, the live feed received by Prasar Bharati from content rights owners or holders is only for the purpose of re-transmission of the said signals on its own terrestrial and DTH networks and not to Cable Operators so as to enable the Cable TV operators to reach such consumers who have already subscribed to a cable network.