This article is written by Anuja Saraswat who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawSikho.com.
Table of Contents
Introduction
The Indian sports industry has been steadily growing and has grown to become one of the world’s largest industries, encompassing entertainment, games, tradition, and financial transactions. There was a time when sports were just games that people played for pleasure or as a hobby in their spare time, but commercial engagement in sports has expanded in recent decades, necessitating the need for some form of protection in order to reap the commercial benefits.Â
Because the nature of entertainment has evolved greatly over time, and India has become an overflowing scene for hosting multiple national and international sporting events, rules and laws have been established.Â
As the sports business becomes more commercialized, different challenges relating to intellectual property have become more prevalent. The promotion and marketing of championships and athletic events, the artistic designs of sports teams’ and competitions’ logos, the material included in-game day programmes provided to spectators and supporters, merchandising, and computer and internet game software are all now copyrightable subject-matter.Â
However, despite their massive rise, sports did not gain widespread popularity until they began to be broadcast on various types of media. The Copyright Act protects broadcasting and performer’s rights in India. Aside from that, the Indian Court has stepped in to help establish sports jurisprudence. However, it has been noted that courts have shied away from deciding on concerns relating to sports broadcasting.
This predicament can be attributed to a lack of specific sports legislation as well as inefficiency on the part of Indian courts, as issues relating to sports broadcasting demand technical skills in the field of games. The article discusses the role of copyright in broadcasting and performance rights in sporting events.Â
It then moves on to a consideration of the role of copyright in sports law, which is supported by relevant case law. In addition, the paper examines the copyright protection afforded to live sports telecasts. The article concludes with the suggestion to bring some strong legislation in the copyright law for the sports sector.
Copyright in sports law
In India, there is no proper legislation dealing with issues relating to the sports business. As a result, it is governed by a number of different laws. Because of the commercialization and exploitation of commercial aspects of athletes and sporting events, copyright has become extremely valuable for protection.
Copyright in sports is important for the protection of different aspects of sports, such as logos, promotions, slogans, and imagery. The Copyright Act of 1957 protects all of these things in India. As related or neighbouring rights, it also safeguards broadcasting and performing rights. In India, the copyright law is fairly liberal, allowing both the author and society to explore their creativity.
Sports organizations rely on revenues from broadcasting and media rights to build stadiums, stage sporting events and engage in community outreach in order to maintain high levels of interest. Major sporting events are now streamed or aired live across the world, allowing millions of spectators to share in the excitement of the event through media. Copyrights, together with neighbouring rights, defend against unlicensed broadcasts and support the sports-television media relationship. The media organizations pay a large quantity of money for the exclusive right to show athletic events live.
Broadcasting and performers rights in sports
With the development of the sports business in India, the issue of sponsorship and broadcasting has arisen. The broadcasting right is a very essential right that is formed when any sport is aired or screened. The Indian Copyright Act of 1957 recognises a separate set of rights. No one has the authority to broadcast or stream copyrighted and licenced professional sporting events without permission from a sporting league or organisation.Â
The broadcasting companies possess the broadcasting rights, and once they have them, they are the owners and can rebroadcast it as many times as they like. According to the Indian Copyright Act, 1957, any person who, without the permission of the original owner, broadcasts or publishes a work that has already been broadcasted or published, reproduces the work without assignment, reproduces the sound or reproduces it by visual recording, sells or hires to the public, or offers for such sale or hire, is said to have infringed the broadcasting rights.Â
Broadcasting without the owner’s permission is considered an infringement under Section 51 of the 1957 Copyright Act. With the advancements in technology, sporting events are televised all across the world. The Copyright Act did not include a provision that safeguarded the rights of broadcasters and live performers at first. However, Sections 37 and 38 were repealed in 1994, and a new section was added to provide for broadcasting reproduction rights and performer’s rights.
Section 3 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharti) Act, 2007 requires all content rights owners to share broadcast signals of national importance sporting events without advertisements with Prasar Bharti in order for them to re-transmit the same on their terrestrial and DTH networks.Â
The law was passed in order to allow a large number of people to watch sporting events that are of national importance. However, the Act is discriminatory in that it places private enterprises in a disadvantageous position by requiring them to spend billions of rupees to gain exclusive broadcasting rights to matches.
Challenges in the broadcasting of live sports events
Apart from cinematography films, the Indian copyright laws have clearly defined the classifications of works on which copyright exists under Section 13, and there is no scope of any rights on the live event aired throughout India. In order to determine the degree of protection afforded to live sporting events, Section 13 (b) must be interpreted. The infringement of rights associated with sports events is a subject that the Indian judiciary is yet to settle, as the matter has been raised but not adequately addressed by the Indian courts.
When you look at the definition of cinematography films in Section 2(f) of the Indian Copyright Act, 1957, you’ll see that it refers to any work that is recorded on a fixed medium, such as video cassettes, tapes, or compact discs. A live broadcast sporting event cannot be said to be recorded until it is saved in one of the fixed means described above, as they are aired when they happen.Â
It is possible to say that the work is related to the cinematographic film if it is first recorded and then broadcast over the network with certain particular graphics. If we look at the judicial interpretations made by Indian courts, we can observe that no Indian court has to date ruled upon the concerns of live sports broadcasting and copyright law.
Landmark cases
ESPN Stars Sports v. Global Broadcast News Ltd. and Ors
In the case of ESPN Stars Sports v. Global Broadcast News Ltd. and Ors, the Plaintiff, ESPN Stars Sports, sought a permanent injunction against the Defendants, Global Broadcast News Ltd. and Ors., to prevent the Defendant news channels from using Plaintiff’s footage in future India-Australia test matches, 20-20 series, and one-day internationals involving Sri Lanka, India, and Australia without obtaining the Plaintiff’s prior permission or in violation of the Plaintiff’s terms and conditions.Â
This was an appeal against Justice Ravindra Bhat’s decision in favour of the defendant news networks. His decision to dismiss the case was based on the Plaintiff Broadcasting Organisation’s inability, as the exclusive licensee of the concerned broadcast, to bring the owner of the broadcasting right to court, as required by Section 61 of the Copyright Act.Â
The appeal was based, among other things, on the fact that under the Copyright Act, broadcasting organisations’ rights are considered as “related rights,” rather than copyrights. As a result of their unique position and nature, these rights are handled only by Chapter VIII (Sections 37-39A) of the Copyright Act. As a result, since Chapter VIII (particularly Section 39A of the Act) makes no mention of Section 61‘s applicability to broadcasting rights and infringement actions, the latter is not relevant to an infringement action filed by an exclusive licensee of a broadcasting organisation.Â
As a result, the Court of First Instance erred in determining that Section 61 applies to infringement actions brought by broadcasting corporations acting as exclusive licensees. Plaintiff claimed that it engaged in an exclusive licence agreement under which it was granted exclusive rights to transmit live, delayed, and/or paid feeds of cricket events on terrestrial television, cable television, and/or satellite television in India and other specified nations.Â
The Defendants were accused of using the material to create a programme that they then commercially exploited. As a result, the plaintiff requested a permanent injunction prohibiting them from using the plaintiff’s footage. The issue was not decided on the merits, and the topic of copyright in live events remained unsolved because the action was dismissed on technical grounds.Â
ESPN Software India Private Ltd. Vs. Tudu Enterprise and Ors
The case of ESPN Software India Private Ltd. Vs. Tudu Enterprise and Ors were regarding Section 37(3) of the Copyright Act, 1957 whereas, The defendants had harmed the plaintiff’s rights without entering into any proper contracts, either with the distributor or with the plaintiff, by using the plaintiff’s transmitting networks channels to display events to their subscribers, causing an infringement of broadcasting reproduction regulations.Â
An appeal was preferred to determine if the defendants’ actions were unauthorised while transmitting across the plaintiff’s network channels. The court had to decide whether Defendant’s act of illegally transmitting Plaintiff’s network channels was justifiable or not. Plaintiff’s channels were held to be paid channels by the court that could only be watched by subscribers through approved cable operators.Â
As a result, only approved licences could use/distribute encrypted channels. Plaintiff’s licenced cable operators employed decoders or decryption devices with unique numbers assigned to them by Plaintiff. Furthermore, unauthorised cable operators engage in illegal capturing of Plaintiff’s sports signals that were illegally transmitted – Furthermore, unlicensed broadcast of Plaintiff’s reproduction rights by operating signals that were illegally transmitted to India in a foregoing manner was illegal, unfair, and should be prohibited.Â
Defendants in the case had not signed any licencing agreements with Plaintiff’s distributors and were not entitled to distribute channels across their cable operators, and so transmission of these channels was not justified under Section 37(3) of the Copyright Act.Â
Even though the rights to distribute live sports events are an infringement of the official broadcaster’s copyright under section 37(3) of the Indian Copyright Act, 1957, if we look at the definition and provisions provided under the Act as discussed above, it is quite appropriate to say that there is no provision related to copyright in live sports events.
Star India Pvt. Ltd. & Anr. v. Haneeth Ujwal & Ors.
In the case of Star India Pvt. Ltd. & Anr. v. Haneeth Ujwal & Ors., the Plaintiff requested that the Internet Service Providers block over a hundred websites and other comparable websites that broadcast content held by Star India Private Limited (ISPs). They argued that barring particular URLs containing pirated content would be insufficient since websites could always broadcast the infringing information by modifying one character in the URL setting.Â
The defendants were said to own, operate, and administer the many websites listed in the memo of parties, and that they were based all over the world. Because many of these websites were anonymous, it was nearly impossible to track down their owners. Due to the difficulty in identifying all of the defendants, the Hon’ble Delhi High Court issued a John Doe order prohibiting the defendants from hosting, streaming, broadcasting, rebroadcasting, retransmitting, exhibiting, making available for viewing and downloading, providing access to and/or communicating with the public (including its subscribers and users) through telecommunications.
When it came to live telecasts of cricket events, the Delhi High Court’s division bench decided that rather than blocking a specific URL, websites that primarily carry pirated content should be barred entirely. Furthermore, under Section 65B of the Copyright Act of 1957, anyone who knowingly distributes, imports for distribution, broadcasts, or communicates to the public, without authority, copies of any work or performance knowing that electronic rights management information has been removed or altered without authority is subject to a two-year prison sentence, as well as a monetary fine.
Conclusion
In light of the above analysis, it is observed that copyright in the broadcasting of sports events and the rights of the performers in the sports industry hold utmost significance when it comes to the protection of rights in the sports industry. The live sports events involve a huge amount of economic value that it cannot be ignored and be dealt with in a manner that will lead to the death of the whole genre of events because nobody would like to invest in a sports event when he is not sure that how much rights he will be able to safeguard in case of infringement of his copyright.Â
The Courts in India to date are providing recognition to the Copyright on live sports events but are still not able to provide sufficient backing to the matter of broadcasting of Sports events. Hence there is a need of the hour that the law in this regard should be clear and should be in coordination with the international law.
References
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