Section 37 and Section 39A of the Copyright Act govern the provisions relating to broadcast. Section 37 grants broadcasting organizations a special right, namely the broadcast reproduction right. The term of this special right is 25 years from the broadcast date. Any person inter alia re-broadcasting the broadcast or causing the broadcast to be seen by the public in exchange for money or making a sound or a visual recording of the broadcast without the broadcaster’s permission is said to infringe such special right of the broadcaster and is subject to legal action.
Broadcasting organizations such as television, radio, etc., have been vested with certain rights called the “Rights of the Broadcasting Organizations.” These rights inter alia include the exclusive right to reproduction for 25 years from the first broadcast date. Section 37 of the Act gave the broadcasting organizations the rights and was amended by the Copyright Amendment Act of 1994. Rights of the Broadcasting Organizations are categorized as neighbouring rights or related rights since they act as an intermediary between the author of the work and the public at large.
Meaning of Broadcast
Definition of broadcast as amended by Copyright (Amendment) Act 1983, Section 2 (dd) of the Act defines broadcast as
Communication to the Public:
- by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds, or visual images; or
- by wire and includes a rebroadcast.
Communication to the public means:
According to 2 (ff) means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work so made available.
According to Section 37 Broadcast reproduction right. —
- Every broadcasting organisation shall have a special right to be known as ‘‘broadcast reproduction right’’ in respect of its broadcasts. Broadcast reproduction right. —
- Every broadcasting organisation shall have a special right to be known as ‘‘broadcast reproduction right’’ in respect of its broadcasts.”
The Copyright Act, 1957 is silent on the term of repeat broadcast. In absence of any specific provision no new broadcast reproduction right is conferred on the repeat broadcast.
- The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.
- During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following rights of right owner of the broadcast or any substantial part thereof be deemed to have infringed the broadcast reproduction right.
RIGHTS OF RIGHT OWNER IN BROADCAST AND CABLE PROGRAMMES:
The owner of copyright in a broadcast has the exclusive right to do the following acts:
- Re-broadcast the broadcast
It is a restricted act to re-broadcast the broadcast without the licence of the right owner.” Rebroadcast’ is included in the definition of broadcast. Broadcast means communication to the public, by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire. Thus, the restriction is also applicable to the inclusion of an already broadcasted work in the cable programme.
Case Law :
In Star India Pvt. Ltd. v. Piyush Agarwal, the Delhi High Court stated that the rights of rebroadcast were given exclusivity as per section 37, which provided that with respect to the rebroadcast also no one had the right to use the audio and visual recording except in accordance with the license which was to be taken from the owner of the original audio and visual recording.
- Causing the broadcast to be heard or seen by the public
The Copyright Act, 1957 provides that it is a restricted act to cause the broadcast to be heard or seen by the public on payment of any charges. However It is clear that if someone causes the broadcast to be heard or seen by the public free of charges, he shall not be deemed to have infringed the broadcast reproduction right under the Indian Copyright Act .
- Making of sound or visual recording of the broadcast
Section 37 of the Copyright Act, 1957 provides that during the continuance of a broadcast reproduction right in relation to any broadcast, it is not permissible for any person to make any sound recording or visual recording of the broadcast or any substantial part thereof, without the licence of the right owner.
- Reproduction of sound recording or visual recording
The Act provides that during the continuance of a broadcast reproduction right in relation to any broadcast, it is not permissible for any person to make any sound recording or Visual recording of the broadcast or any substantial part thereof, without the licence of the right owner.
- Right to sell or commercial rental
It is not a permitted act to sell or give on commercial rental or offer for sale or for such rental, any such sound recording or visual recording of broadcast which has been made without licence of the owner of rich, or which is a reproduction of such sound recording or visual recording. All the aforesaid rights are available to the owner of right in broadcast subject to the provisions of section 39 (permitted use in relation to broadcast reproduction right).
Exceptions to Broadcasters’ Rights under the Copyright Act
With respect to sports events and sporting affairs, the Delhi High Court in Star India Put. Lid. v. Piyush Agarwal,'” laid down two objective facts which would determine whether the reporting was the offending activity or not. The first objective fact was the nature of the coverage with respect to information being diffused, i.e., whether it was result oriented or not ?
And other is whether it was an analysis or review of the sporting event.