In Part I, I had discussed the legal framework and the background in which the dispute between Prasar Bharti and the BCCI and Star India/ESPN arose. In Part II of this two-part past, I examine the recent decision of the Supreme Court.
Interpreting S. 3, Sports Act, 2007
The appellants’ main argument was to urge the Supreme Court to take a purposive view of the law. As noted in Part I, the objective of the Prasar Bharti, under the Prasar Bharti Act, is to ensure public access to information, and provide adequate coverage of sporting events. The Sports Act, 2007 was specifically introduced with an aim to maximise public access to sporting events of national importance. The appellants argued that given this object, Section 3 of the Sports Act, 2007 ought to be interpreted coextensively with Section 8 of the Cable Act, 1995 so as to maximize public access.
Not surprisingly, the Supreme Court did not bite. A strong case had been made in favour of the respondents’ private rights, under both the Copyright Act, 1957 and the Media Sharing Arrangement between Star India/ESPN and BCCI. The Sports Act, 2007, which demanded these rights be shared with Prasar Bharti, had been characterized as an “expropriatory legislation” that required strict construction. This found favour with the court, which held (using some rather confusing modifiers) that Section 3 was indeed expropriatory, and accordingly “has to be interpreted very strictly.”
This approach led the court to hold that in the absence of specific legislative intent evident in the language of the provision, Section 3, Sports Act 2007 restricted Prasar Bharti’s right to retransmit to its own terrestrial and DTH networks; it did not permit re-transmission to private cable operators carrying Doordarshan channels under S. 8, Cable Act, 1995.
An interesting point to consider is that prior to this decision, there has been no instance in copyright law, or for that matter in other areas of IP law, where legislation (or a provision) has been labeled “expropriatory”. In fact, the few instances where Indian courts have ever called legislation expropriatory have been in typical police power cases. Here, the Supreme Court neither provides reasoning nor case law to explain why it chose to adopt this terminology.
Avoiding ‘fragility’ in Section 8, Cable Act, 1995
This ‘strict interpretation’ approach was accompanied by an interesting (read: strange) line of argument that an expansive reading of Section 3, Sports Act, 2007 sought by the Union of India and others, would “introduce a fragility” in Section 8, Cable Act, 1995. As noted in Part I, the application of Section 8 is controlled by the Central Government, which has the power to notify the Doordarshan channels that cable operators have to mandatorily carry.
The Supreme Court noted that it was a matter of coincidence rather than legislative mandate that the channels notified under Section 8, Cable Act, 1995 included the channel on which Prasar Bharti was broadcasting the Section 3 “sporting events of national importance” i.e. DD1 (National). The Central Government could, if it so chose, denotify the channel, thereby relieving cable operators of the duty of broadcasting these sporting events. According to the Supreme Court, the legislature could not have intended the “effect and operation” of Section 3, Sports Act, 2007 to depend on this exercise of Central Government discretion.
It is entirely unclear whether the “fragility” that the Supreme Court is trying to avoid is that of Section 8, or that of Section 3. From the argument made by the court, it would appear that it is uncertainty in the ‘effect and operation’ of Section 3 (and not Section 8) that the court wishes to prevent. Is it therefore inconsistent reasoning on the part of the Supreme Court? Or more charitably, is this a typographical error? It is likely to be the latter, given that Section 8, by its very framing and purpose, is meant to have variable ‘effect and operation’.
Section 37, Copyright Act, 1957: Missed opportunity?
An a priori question that the Supreme Court should have answered before examining the scope of Section 3, Sports Act, 2007 when read with Section 8, Cable Act, 1995 was what the rights in question in the first place were. Parties had indeed made submissions on this point, before both the Delhi High Court and the Supreme Court. On behalf of BCCI and Star Sports/ESPN, it had been argued that cricket matches would be “cinematographic films” under S. 2(f), and not a broadcast under S. 37, Copyright Act, 1957. This would have made the BCCI the author of the work, and taken away any broadcast reproduction rights that Prasar Bharti could have laid claim to under Chapter VIII of the Copyright Act.
Unfortunately, both the division bench of the Delhi High Court and the Supreme Court refused to deal this very interesting question, and chose to restrict their analysis to the narrow question of the interaction between the Sports Act, 2007 and the Cable Act, 1995. The Supreme Court merely stated that they “acknowledge the existence of a right in the content rights owner/holder in the live feed of a cricket match or other sporting events of national importance.” (emphasis supplied). It will certainly be interesting to see how this argument is developed in future broadcasting cases.
The impact this decision will have on public access to sports is going to undoubtedly be staggering. As the figures submitted to court indicate, out of 155 million households with TV connections, only 4.6 million households have access to Prasar Bharti’s terrestrial networks. The remaining are connected either through cable or DTH networks, both of which paywall sports channels, including those offered by the Star India/ESPN media conglomerate.
During the Delhi High Court division bench proceedings, Mr. Paras Kuhad, in his role as the ASG, had advanced arguments on this issue of public access, couching it in Public Trust doctrine terms. He had argued that broadcasting was an activity requiring the utilization of natural resources and that accordingly in a contest between private profits and public access, the latter would need to be given primacy. Unfortunately, it appears that on appeal, the State chose to drop this line of argument. Arguments on the right to free speech and cultural rights of citizens appear to have suffered a similar fate. This strategy on the part of the state is perhaps indicative of the opinions the Supreme Court currently holds with respect to the interplay between private rights and public interest. The industry, unsurprisingly, is crowing from the rooftops.