In Part I of the post, I discussed the first issue with the Draft India-EU FTA Chapter on IP: the FTA attempts to create new reproduction rights that are not present in the Copyright Act, 1957. In this post, I will be focusing on how the broadcasting organisations’ rights provided in the FTA clash with the existing TRAI and OTT platforms’ guidelines.
Distribution Rights of Broadcasting Organisations:
Broadcasting organisations or broadcasters are those entities that transmit broadcasts by wire or over the air, which includes transmission via cable or satellite. Article 10.14 of the Draft IP Chapter provides for a list of rights to be provided to the broadcasting organisations.
One of these rights is the distribution rights under Article 10.14(c). Under it, broadcasting organisations have the exclusive right to authorise or prohibit “the distribution to the public, by sale or otherwise, of fixations, including copies thereof, of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.” Having the authority to authorise or prohibit gives broadcasting organisations the power to determine winners and losers in the distribution market. This runs contrary to what is mandated by the Telecom Regulatory Authority of India (TRAI) in the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 (Interconnection Regulations). As per Regulation 3, TRAI mandates that broadcasters must provide their signals to all registered distribution platform operators on a non-discriminatory basis. TRAI, in concept, treats broadcasting signals as an essential facility and does not give broadcasters an absolute right to refuse to provide these signals, ensuring a fair and competitive market. Without such a regulation, big entertainment companies can bully smaller cable/DTH providers, leaving customers with limited choices for TV channels via vertical foreclosure. Therefore, if India ratifies the draft FTA text as written, such a right to ‘prohibit’ distribution would undermine the existing Interconnection Regulation mandates.
OTT Platforms as Traditional Broadcasters?
The Draft FTA tries to introduce a new broadcasting organisations right: the right to control interactive on-demand digital access. Article 10.14(f) of its IP Chapter grants broadcasting organisations the exclusive right to authorise or prohibit “the making available to the public…in such a way that members of the public may access them from a place and at a time individually chosen by them.” This means that the broadcasting organisation would have the absolute power to control how its content is streamed on the internet and over-the-top (OTT) platforms.
While in traditional broadcasting, broadcasters set a fixed schedule for everyone simultaneously (push medium), OTT platforms are a pull medium, where the autonomy is with the consumer- what content they pull to watch and when and where they watch it. As a result of the clear distinction between traditional broadcasting and OTT platforms, we have OTT platforms distinctly categorised and regulated by Part III of the IT Rules, 2021 as “publishers of online curated content”. Further, such platforms are strictly regulated through a digital-ethics framework. As recently affirmed by the Ministry of Information and Broadcasting, OTT platforms are to exercise due diligence on their curated catalogue to ensure that no hosted material breaks any of the local laws. Therefore, by providing absolute intellectual property rights over internet streaming to the broadcasting organisations, the FTA may step on the legal boundaries between the push and pull mediums.
There could be many adverse implications of such overlap. For eg, an OTT platform buys the streaming rights for a cricket match aired on television years ago. They buy these rights from the actual content owners, the sports league. This is one transaction. Now, the TV network that broadcast the match years ago via satellite signal has no say over the OTT platform’s streaming of the match. However, if Article 10.14(f) is enforced, even if the streaming rights were bought from the original content owners, the TV network could assert its broadcasting distribution rights to block the OTT platform from streaming entirely or demand an additional distribution royalty, which would hurt the OTT platform and, ultimately, consumers.
By treating internet streaming as an extension of traditional broadcasting organisations, the FTA provisions will invite unfair market practices, with the final casualties to be borne by the end-consumers. Such an FTA, if signed and enforced, would lead to limited platform choices and higher subscription fees. Most importantly, signing such an FTA would limit the Indian policy space, pressurising the Parliament to make changes in the domestic laws regulating broadcasting in India simply to implement the International agreement.
