In Part I (read here), I explored the pre-release torrent leak of Udta Punjab and the orders passed by the Bombay High Court blocking these websites. In this very belated Part II, I shall discuss the ramifications of this torrent leak and the need to regulate TV channels via the Cable Networks Act.
On 16th June, a Puducherry channel called Shakthi Cable TV telecasted the pirated version of the movie Udta Punjab. The full version of the movie was aired on the small screen a day before its release in cinemas, and bore the “for censor” mark, implying that it was the leaked torrent copy. Reports suggest that a WhatsApp complaint was made against the channel. Light was shed on the matter when a Tamil superstar, Suriya Sivakumar tweeted a picture of his television screen in an attempt to spread awareness about piracy. Following this, the Sub-divisional magistrate issued a notice to the channel, asking for an explanation.
However, this is not a first for Puducherry. In April this year, the district authorities issued a notice to over 350 unauthorized and unregistered channels in Puducherry to shut down operations. Several of these channels are known to telecast pirated movies.
In the context of this incident, it becomes important to discuss broadcasting laws in the context of copyright.
Firstly, the TV channel herein played an already infringing copy of the movie. Section 21 of the Cable Television Networks (Regulation) Act 1995 [“CTN Act”] states that the Act is in addition to, and not in derogation of the Copyright Act 1957. According to Section 6(3) of the Cable Television Networks Rules 1994, a cable operator shall not telecast anything for which copyright subsists under the Copyright Act, unless he has been granted a requisite licence by owners of copyright.
Secondly, the TV channel herein did not have the licence to air the movie. Even a legally obtained copy cannot be communicated to the public without procuring broadcasting rights for the same. According to Section 2(dd) of the Copyright Act 1957, “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, including re-broadcasting. In the case of ESPN Star Sports vs Global Broadcast News Ltd., the Court held that broadcasting right is distinct from copyright under the Copyright Act 1957 and thus, the broadcast reproduction right under Section 37 of the Copyright Act 1957 is a distinct right of the broadcasting organization and not merely of the copyright holder.
The illegal telecasting of movies infringes upon both the copyright of the producers, and the broadcasting rights of the channel to which the movie is licensed for telecast by the producers of the movie. Such licence agreements may even run into multiple crores depending on the box office performance of the film. According to a 2011 report, India lost over $1.4 billion that year to cable piracy and this figure is on the rise. In some cases, injunction has been granted against TV channels. However, not many cable TV channels have been asked to pay fines or damages for engaging in piracy, or even had their registrations cancelled on grounds of copyright infringement.
In fact, the CTN Act does not actually provide for any punitive measures for copyright infringement. According to this Act, whosoever contravenes the provisions of the Act itself may be punished with imprisonment up to two years and a fine. However, the Act does not address copyright or broadcasting rights directly, and simply states that it is in addition to the Copyright Act 1957, thus making it impossible to prosecute anyone for copyright infringement under this Act. Further, as I understand it, even under the Copyright Act itself, there is no specific provision dealing with such instances per se. Section 37 of the Copyright Act defines “Broadcasting reproduction right” as the right of every broadcasting organization with respect to its broadcasts. According to Section 37(3), 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 acts of the broadcast or any substantial part thereof rebroadcasts the broadcast or causes it to be viewed by the public on payment etc. shall be deemed to have infringed the broadcasting reproduction right.
Under the scheme of the Act, the broadcast reproduction right shall come into being only when it is so licensed to a broadcasting organization. Usually, such assignment or licensing happens only after the release of the film. In this particular instance, I did not find any evidence of such licensing by the filmmakers. This essentially means that while the copyright of the film has definitely been infringed, we cannot say the same for the broadcasting reproduction right since there is nothing to infringe as yet.
The lack of these punitive measures suggests some serious lacunae in the abovementioned statutes which require immediate attention. We need a mechanism wherein the registrations of cable TV channels which routinely indulge in such illegal practices are cancelled. Fines and other forms of punitive action may also be considered.
The regulation of broadcasting and cable TV services was handed over to the Telecom Regulatory Authority of India (TRAI) in 2004. Since then, the TRAI has made some efforts to introduce transparency in the broadcasting system. In December 2015, the TRAI brought about a Draft Model Agreement between Multi-system operators (MSOs) and local cable operators for the re-transmission to subscribers. According to this, the Local cable operator shall not indulge in any piracy or other activities, which has the effect of infringement and violation of copyrights of the MSO, or ‘any other person associated with such retransmission’. This is a step in the right direction. However, the TRAI must make more efforts to regulate the local cable operators, especially in the matter of granting registrations.
(Image from here)