LAW

Intellectual Property

Neighbouring/Related Rights

Development Team
Role Name Affiliation

Principal Investigator Professor (Dr.) Ranbir Singh Vice Chancellor,

National Law
University, Delhi
Paper Coordinator Mr. Yogesh Pai Assistant Professor of
Law, National Law
University, Delhi
Content Writer (CW) Ananth Padmanabhan Advocate, Madras
High Court
Content Reviewer (CR) Yogesh Pai National Law
University, Delhi
 Module Detail
Subject name Law

Paper name Intellectual Property

Module name/ Title Neighbouring Rights

Module Id Law/IP/# 16

Pre- requisites Basics of copyrights, economic rights granted to

copyright owners, authorship and ownership
Objectives To understand the nature of protection granted to
performers, broadcasting organizations in the context
of Indian copyright law
Key words Copyright, economic rights, broadcasting
organizations, performers rights

Learning Objectives

• To examine the international legal framework for neighbouring

rights / related rights in the Rome convention, TRIPS
Agreement and the WIPO treaties

• To examine the need to protect performers and how Indian

copyright law offers wide protection to performers

• To understand how rights of broadcasting organisations

evolved in India in the context of radio and television

• To understand the nature of protection available in Indian

copyright law to broadcasting organisations and performers

2
Introduction:
Historically, certain efforts were considered undeserving of the copyright
protection granted to authors of literary, musical and artistic works. The
Berne Convention as originally drafted did not therefore extend to these
entrepreneurial efforts. The rationale for this line-drawing that kept out three
important efforts - performances, phonograms and broadcasts - from the
rubric of copyright was simply this: they were all products of teamwork while
the copyright system was meant to incentivise individual creativity. Over
time, there has been a breakdown of this assumption even within the internal
discipline of copyright, leading to these efforts, and rights connected
therewith, gaining acceptance and recognition both internationally and in the
Indian legislation.

Yet, due to the historical sequestration of these from mainstream copyright,

we consider them neighbouring rights.1 In this module, we deal with two
such important rights, namely those enjoyed by performers in respect of their
performances (designated as ‘performer’s rights’) and those enjoyed by
broadcasters in respect of their broadcasts (designated as “broadcast
reproduction rights”). Phonograms were never considered a neighbouring
right in India, and the Indian Copyright Act, 1957, right from its enactment,
included both sound recordings and cinematograph films within the category
of works entitled to copyright protection.

This module will examine the following:

i) the international framework of protection for performer’s rights
and broadcast reproduction rights; and

1
Civil law countries especially created for these and other new technological productions a regime of
neighboring rights—droits voisins in France, Leistungsschutzrechte in Germany, diritti connessi in
Italy. See Paul Goldstein, INTERNATIONAL COPYRIGHT: PRINCIPLES, LAW AND PRACTICE
11 (2nd ed., Oxford University Press, 2001).

3
 ii) ii) the scope and extent of these rights in India.

PART I

The Rome Convention and the WPPT

The Rome Convention for the Protection of Performers, Producers of

Phonograms and Broadcasting Organizations, 1961, was signed by forty
countries, and was the first international treaty to deal with neighbouring
rights. That there was a firm conception of hierarchy between copyright and
neighbouring rights, with primordial status conferred on the former, is
evident from the very first article of this Convention, which makes clear that
the protection granted by it shall not in any way affect the copyright
protection in literary and artistic works, and that its provisions shall not
prejudice such protection.

This Convention went on to define performers in Article 3(a) as “actors,

singers, musicians, dancers and other persons who act, sing, deliver, declaim,
play in, or otherwise perform literary or artistic works”.

The minimum protection guaranteed to such performers under Article 7 of

this Convention were broadly against:
(a) The broadcasting and communication to the public, without their
consent, of their performance;
(b) The fixation, without their consent, of their unfixed performance;
and
(c) The reproduction, without their consent, of a fixation of their
performance, provided the original fixation was made without the
performer’s consent or the reproduction was for a purpose that the

4
 performer had not consented to.

Article 19 of the Convention further clarified that once the performer had
consented to the incorporation of his performance in a visual or audio-visual
fixation, he would no longer be within the protective umbrella of performance
rights.

The Convention defined broadcasting in Article 3(f) as the transmission by

wireless means for public reception of sounds or of images and sounds, and
rebroadcasting in Article 3(g) as the simultaneous broadcast by one
broadcasting organisation of another’s broadcast.

Article 13 spelt out the minimum rights of broadcasting organisations as

being to authorise or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;
(c) the reproduction of fixations of their broadcasts made without their
consent; and
(d) the communication to the public of their television broadcasts if
such communication was made in places accessible to the public
against payment of an entrance fee.

The minimum term of protection for both performer’s rights and broadcast
rights was twenty years computed from the end of the year in which the
performance or broadcast took place.

The Convention also contained a general fair use provision, Article 15, which
provided that these rights could be made inapplicable by member countries
to instances of a) private use; (b) use of short excerpts in connection with the

5
reporting of current events; (c) ephemeral fixation by a broadcasting
organisation by means of its own facilities and for its own broadcasts; and (d)
use solely for the purposes of teaching or scientific research.

The Rome Convention, as we can see, conferred a limited right on performers,

a right that could be extinguished the moment they consented to the fixation
of their performance in a visual or audio-visual format. Subsequently, the
WIPO Performances and Phonograms Treaty, 1996 (WPPT), has taken long
strides in enhancing performer’s rights. This Treaty has extended the duration
of protection to fifty years,2 provided for separate moral rights to attribution
(ie. the right to be credited for the performance) and integrity (ie. the right to
prevent mutilation, distortion or other modification of the performance that
would prejudicially affect the performer’s reputation) to the performer,3 and
enhanced the economic rights conferred on performers to include i) the
exclusive right of distribution to the public of the original and copies of their
performances fixed in phonograms through sale or any other transfer of
ownership 4 or through commercial rental 5 and ii) the right to a single
equitable remuneration (along with the producer of the phonogram) for the
direct or indirect use of phonograms of their performances published for
commercial purposes for broadcasting or for any communication to the
public. 6 The Treaty has also added teeth to self-help measures such as
technological protection measures and electronic rights management
information that performers may employ to prevent infringement of their
rights, by mandating member countries to provide adequate legal protection
and effective legal remedies against their circumvention.7 Finally, the Treaty

2
Article 17.
3
Article 5.
4
Article 8.
5
Article 9.
6
Article 15.
7
Articles 18 and 19.

6
has expanded the possible limitations that can be imposed on these rights, by
permitting member countries to extend any fair use limitation they have
imposed on the exercise of copyright to these rights too.8
The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) did not add anything new to the scope of protection offered by
performer’s rights or broadcast reproduction rights in the Rome Convention.
Article 14(1) of TRIPS merely stated that performers shall have the possibility
of preventing i) fixation of their unfixed performance, ii) reproduction of such
fixation, and iii) the broadcasting by wireless means, and the communication
to the public, of their live performance. Article 14(3) similarly provided that
broadcasting organisations have the right to prohibit i) fixation of their
broadcasts, ii) reproduction of such fixations, iii) rebroadcast of their
broadcasts by wireless means, and iv) communication to the public of
television broadcasts of their broadcasts. Rental rights were also made
available to these right holders vide Article 14(4) read with Article 11.

PART II

Performer’s Rights in India

India has not ratified to the Rome Convention yet. As of July, 2018, the Union
Cabinet in India has approved accession to the WIPO Performance and
Phonograms Treaty, 19969.

India’s regime of protection for performer’s rights has closely mirrored the
treaties in vogue. Prior to the 2012 amendment, Indian copyright law

8 Article 16(1): Contracting Parties may, in their national legislation, provide for the same kinds of
limitations or exceptions with regard to the protection of performers and producers of phonograms
as they provide for, in their national legislation, in connection with the protection of copyright in
literary and artistic works.
9
http://pib.nic.in/newsite/PrintRelease.aspx?relid=180389

7
guaranteed the minimum rights provided for by the Rome convention, by
way of the 1994 amendment that introduced performer’s rights to Indian law
for the first time. 10 Post the 2012 amendment, this protection broadly
conforms to the provisions of the WPPT in so far as performer’s rights are
concerned.
Starting with definitions, the Copyright Act, 1957, defines a performer to
include “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake
charmer, a person delivering a lecture or any other person who makes a
performance.” 11 Performance is defined, in turn, as “any visual or acoustic
presentation made live by one or more performers.”12 These definitions did not
create much controversy till the 2012 amendment inserted a proviso after the
definition of “performer” that reads:
Provided that in a cinematograph film a person whose performance is
casual or incidental in nature and, in the normal course of the practice of
the industry, is not acknowledged anywhere including in the credits of
the film shall not be treated as a performer except for the purpose of
clause (b) of section 38B
Prior to this proviso, studio singers and actors in cinematograph films were
not considered “performers” because their presentation was not made live but
confined to a studio. However, this proviso makes it appear as though actors
in a cinematograph film are performers in general, except where their
performance is casual or incidental in nature. This has led to considerable
industry unrest recently because singers in films have started demanding a
share of the royalties flowing from the different uses made of the sound
recordings /songs in the film. No conclusive view can be expressed on this
issue till it is adjudicated by courts. The only judicial observation - it cannot

10 As explained by the Delhi High Court recently in Akuate Internet Services v. Star India Pvt. Ltd.,
MIPR 2013 (3) 1, it was in the wake of ‘livelihood threatening technological changes’ that the law
intervened in 1994 to recognise performer’s rights and broadcast reproduction rights.
11
Sec. 2(qq).
12
Sec. 2(q).

8
be termed more than just an observation because the case was decided on a
separate footing - supports the case of singers.

In Neha Bhasin v. Anand Raj Anand,13 the Single Judge of the Delhi High Court
has observed that every performance has to be live in the first instance
whether it is before an audience or in a studio. Therefore, if any such
performance was recorded and thereafter exploited without the permission of
the performer, the performer’s right would be infringed.

Turning to the duration of the rights, the 2012 amendment has brought us in
conformity with the WPPT by doubling the term of protection from twenty-
five to fifty years, starting from the beginning of the calendar year following
the year in which the performance is made. Prior to this Amendment, the
coverage of the rights was also narrow, akin to that in the Rome convention,
and did not extend to the distribution of copies of the performance, either by
way of sale or commercial rental. 14 The moral rights of integrity and
attribution have been introduced, in line with the WPPT, vide Section 38B.

Section 38(4) as it stood before the amendment also provided that performer’s
rights ceased to exist the moment the performance was incorporated as part
of a cinematograph film with the performer’s consent. This provision has now
been repealed, and the 2012 amendment makes it clear, vide Sec. 38A(2), that
the performer’s consent only bars him from objecting to the enjoyment by the
producer of the film of the performer's right in the same film. The proviso to
Sec. 38A(2) adds that the performer shall, in any event, be entitled to royalties
in case of making of the performances for commercial use, a right akin to the
equitable remuneration right introduced by the WPPT. Finally, Section 39(c),

132006 (32) PTC 779 (Del).

14
The 2012 amendment has expressly conferred this right on the performer, vide Section 38A(a)(ii)
and (iv).

9
a provision that has been in force since 1994, makes it clear that performer’s
rights (and broadcast reproduction rights) shall not be infringed by any act of
the kind that would qualify as a fair dealing exception to the exclusivity of
copyright, provided for in Section 52.

PART III

Broadcast Reproduction Rights

Unlike performer’s rights, broadcast reproduction rights existed even prior to
1994. 1994, however, marked a watershed in the recognition of such rights
because the statutory language was modified to suit the needs of private
broadcasting organisations that had entered the television and radio
broadcasting sector post liberalisation. Prior to the ‘94 amendment, the law
was worded largely to accommodate the interests of Government and
Doordarshan, the only broadcasting authority till the early to mid-90s. It is
interesting though to briefly trace the evolution of the broadcast reproduction
right from 1957 to the present.

In 1957, the Act did not define “broadcast”, using instead the expression
“radio diffusion”, defined in Sec. 2(v) as including “communication to the
public by any means of wireless diffusion whether in the form of sounds or
visual images or both.” This definition was restrictive because it did not cover
communication by means of wire. However, one could possibly contend that
even such communication would make use of some form of wireless
diffusion. Section 37 provided for the substantive right, and classified
“broadcast reproduction right” as a special right arising on occasions where a
programme was broadcast by radio-diffusion by the Government or any
other broadcasting authority. The duration of this right was twenty-five years
from the beginning of the calendar year following the year of first broadcast

10
of such programme, and the right extended to restraining (i) rebroadcasts of
the programme, (ii) communication of the same to the public, and (iii)
recordings of the broadcast. It is thus seen that the Indian enactment stole a
march on the Rome Convention by a full four years in guaranteeing broadcast
reproduction rights.

In 1983, the Act was amended to remove “radio-diffusion” and define

“broadcast”, thus fully substituting the former term with the latter. Section
2(dd) was inserted, defining “broadcast” as communication to the public (i)
by any means of wireless diffusion, whether in any one or more of the forms
of signs, sounds or visual images, or (ii) by wire, and including re-broadcasts
too within its scope. The next major amendment came in ‘94, when the term
“broadcasting authority” was replaced with “broadcasting organisation”, and
the special broadcast reproduction rights were extended to every such
organisation. This amendment also enhanced the scope of the right by
including within it the right to reproduce recordings of the broadcast, and the
right to sell or hire such recordings or their reproductions to the public or to
offer to do so. The 2012 amendment makes only a nominal change,
substituting the term “hire” with “commercial rental.” Because this
expression is defined in Section 2(fa) to exclude the rental of a lawfully
acquired copy for non-profit purposes by a non-profit library or a non-profit
educational institution, the object of the substitution is to facilitate greater
public access to broadcasts. The duration of the right remains at twenty-five
years.

Section 39A and the Interplay between Neighbouring Rights and Copyright
This provision is important to understand the interplay between
neighbouring rights and copyright and hence merits separate discussion.
There are three important principles we can glean from this provision:

11
 (i) no license to reproduce a broadcast would be valid unless consent
is taken from the copyright owner or the performer whose
copyright or performer’s right subsists in the broadcast;
(ii) no broadcast reproduction right or performer’s right would subsist
in any broadcast or performance if such broadcast or performance
were to be an infringement of copyright in any work; and
(iii) no broadcast reproduction right or performer’s right shall affect the
separate copyright in any work in respect of which the broadcast or
the performance is made. The effect of these provisions is fairly
complicated, also because a similar provision exists vide Section
13(4) in the case of works that are incorporated as part of a
cinematograph film or sound recording.

In Indian Performing Rights Society v. Eastern India Motion Pictures Association,15

the Supreme Court held that this provision would not prevent the producer
of the film from making use of the film as it is, and that to this extent, the
copyright in the cinematograph film would trump the separate copyright in
the musical and literary works that were incorporated in such film.16 On the
strength of this decision, subsequent Bombay 17 and Delhi High Court 18
decisions have held that FM radio stations need not obtain a separate license
from the copyright owners of musical and literary works that have been
incorporated in the sound recordings / film songs played in their radio
stations.

The best way to reconcile these decisions with the three principles in Section

15
(1977) 2 SCC 820.
16
For an extensive discussion of this decision and subsequent developments, see Ananth
Padmanabhan, Intellectual Property Rights: Infringement and Remedies 313-17 (LexisNexis
Butterworths Wadhwa, 2012).
17
Music Broadcast Pvt. Ltd v Indian Performing Rights Society, 2011 (47) PTC 587 (Bom).
18
Indian Performing Rights Society v Aditya Pandey, 2012 (50) PTC 460 (Del).

12
39A, especially the first and the third mentioned above, is as follows. First, a
distinction ought to be made between live broadcasts/performances and pre-
recorded ones. If there is a copyright in a literary or musical work, license is
required from the owner of such copyright to broadcast/perform live the
work in the first place. In addition to this, to record such live broadcast or
performance for the first time, a separate license ought to be taken. This is
because two different rights are being exercised here. One, to communicate
the work to the public through a broadcast or a public performance, and the
other, to incorporate such work as part of a cinematograph film or sound
recording. Indeed, any first attempt at reproduction of a broadcast or a
performance would entail the making of a sound recording or cinematograph
film for that purpose. This can only happen with the prior consent of the
copyright owner. However, once such owner has permitted the incorporation
of the broadcast or performance as part of a sound recording or
cinematograph film, the users of such recording or film need to now take a
license only from the copyright owner in such recording or film. This is the
net effect of the Supreme Court and Bombay and Delhi High Court decisions
discussed in the preceding paragraph.

When it comes to performer’s rights that are incorporated in a broadcast,

there is a twist in the tale. This is because Section 38A(1)(a) makes it
abundantly clear that the right itself extends to not only the initial sound
recording or visual recording of the performance but also further
reproductions, issuance of copies and communication to the public of such
recordings. Therefore, merely because the performance has been broadcast
and such broadcast has been incorporated into a sound recording, it does not
offer a carte blanche to the owner of the copyright in the sound recording or
his licensee to do as they please with the recording without additional
licenses from the performer. The exception to this is where the performer

13
permits incorporation of his performance into a cinematograph film, in which
case the producer can freely use the performance as part of the film, subject to
sharing of royalties for all commercial use made of the performance.

Section 38A also lists out several provisions that are applicable to copyright
which would also extend to neighbouring rights. The important ones are the
provisions relating to assignments and voluntary licenses, copyright societies,
anti-circumvention of technological protection measures and rights
management information, and civil and criminal remedies for infringement.

In ESPN Star Sports v Global Broadcast News Ltd.,19 the Division Bench of the
Delhi High Court held that Section 61 would not apply to broadcasting
organizations that sue for violation of broadcast reproduction rights. The
Division Bench, after noting the relevant provisions of the Copyright Act,
1957, which dealt with broadcasting, held that broadcast reproduction rights
are special rights and Parliament had, by terming broadcast rights as rights
akin to copyright, clearly disclosed its intent to treat copyright and broadcast
reproduction rights as distinct and separate. The Court felt that this
recognition of broadcast reproduction right as a separate and distinct right
offered further clarity on the rationale behind Section 39A in listing out
clearly the specific provisions of the Act which would apply to both copyright
as well as broadcast reproduction right. Since Section 61 was conspicuously
left out from this provision despite the specific mention of Sections 18, 19, 30,
53, 55, 58, 64, 65 and 66, this provision would not apply to a case of broadcast
reproduction rights. As a consequence, it was open to the broadcaster to
initiate the suit for infringement of such rights without joining the original
licensee as a defendant as mandated by this provision.

19
2008 (38) PTC 477 (Del).

14
Infringement of Broadcast Reproduction Rights
Any unauthorised interference with, or alteration of, the broadcast will
violate the broadcast reproduction right. This issue came up for consideration
in Aasia Industrial Technologies Ltd v Ambience Space Sellers Ltd.20 Here, the first
plaintiff was the advertising agent who procured advertisements for the
broadcast that was aired in the channel of the third plaintiff. The third
plaintiff after receiving the programmes from the second plaintiff and the
advertisements from the first plaintiff would combine the two and broadcast
the programmes on their Channel. The defendants, being cable television
network operators, would use their dish antenna to telecast the channel in the
homes of the end customers.
The undisputed allegation against the defendants was that they were
blanking out the advertisements that were meant to be a part of the third
plaintiff’s programmes and relaying different advertisements of their choice.
The plaintiffs contended that this amounted to an infringement and passing
off of their copyright as well as broadcast reproduction right, while the
defendants asserted their right to carry on such practice. The High Court here
brought out the interplay between broadcast reproduction rights and
copyright when it held that the entirety of the programme would be entitled
to both forms of protection. The contention of the defendants was that the
third plaintiff being an entity incorporated in a country that was not signatory
to the Berne Convention, they would not be entitled to the protection
conferred by this provision. The High Court rejected this and held that the
right conferred under Section 37 was available to all broadcasting
organisations, wherever they were situated, so long as the broadcast was
available in India for viewing. Hence, the defendants were legally mandated
to communicate or broadcast the third plaintiff’s programmes in its entirety,
including the advertisement portion.

20
(1997) 99 Bom LR 6.

15
Another common device employed to infringe broadcast reproduction rights
is the illegal capture of encrypted signals meant for decryption by authorised
cable operators. The pirate would have the necessary equipment to decrypt
such signals, actually meant for viewing by subscribers who pay for the same.

In ESPN Software India Private Ltd. v. Tudu Enterprise,21 the Delhi High Court
has categorically held this to be a case of infringement of broadcast
reproduction rights. In cases such as this, the Court has also granted extreme
remedies such as John Doe orders, being ex parte orders of injunction against
unidentified defendants22, to tackle the rampant infringement.

Fair Use and Broadcast Reproduction Rights

Subsequent broadcasters cannot, under the guise of news reporting, use
extensive portions of the original broadcaster’s broadcasts and create
commercial programs. This issue came up before the Delhi High Court in
ESPN Star Sports v Global Broadcast News Ltd.,23 where the Court held that fair
dealing was purely a question of fact which could, of necessity, be decided
only on a case to case basis. The Court explained this using the example of the
Olympic Games which had a variety of sports compressed in a short period of
about 10 days. In such a case, imposition of a 30 seconds per event or a 7
minutes per day cap on the television coverage would be unreasonable. The
Division Bench explained that the respondents, under the guise of news
reporting, could certainly show significant events such as a century/fall of
wicket/attainment of landmark achievement in cricket and the scoring of a
goal, grant/denial of a penalty and sending off a player for disciplinary
reasons in Football or Hockey. They could also show a controversial incident

21 MANU/DE/1061/2011
22
See Tej Television Ltd v Rajan Mandal, [2003] FSR 22.
23
2008 (38) PTC 477 (Del).

16
that occurred during the match. However, such events could not be shown to
an extent where fair comment transpired itself into a commercially profitable
programme showing several minutes of footage of the appellant’s broadcast.
While the reporting of news was recognised to be a fundamental right vested
in the news channel, repeated and prolonged telecast by the respondents of
what was actually broadcast by the appellant, especially in the form of a
special programme, would result in commercial exploitation not protected by
Article 19(1)(a), especially when the factum of the programme being aired
later in the day was constantly advertised and announced by the news
channel and such programmes were liberally interspersed with commercials.
With these observations on the law, the Division Bench remanded the matter
to the Single Judge for fresh consideration of the merits.

The Division Bench of the Delhi High Court recently undertook a fresh look
into this issue in New Delhi Television Limited v. ICC Development (International)
Limited.24 This case involved an appeal from a decision of the Single Judge
that had spelt out various guidelines for news reporting of cricketing events
organised by ICC. The exclusive broadcast rights for these matches was
licensed to ESPN. The allegation against NDTV was that it carried certain
special/sponsored shows before and after the match, and during the innings
break, where footages from previous matches and the match underway or just
concluded were used along with ticker advertisements as part of these shows.
The shows primarily involved an expert panel discussion on various aspects
of the match, teams and players. The Single Judge distinguished between
these special shows and the regular news bulletins aired by NDTV, and
virtually confined the use of the footages to the latter by severely curtailing
NDTV’s autonomy to air advertisements along with the footages in the case
of the special shows.

24
2013 (53) PTC 71 (Del).

17
NDTV’s sheet anchor to appeal this decision was the presence of Section 39(b)
that carved out an exception to broadcast reproduction rights for the purpose
of using excerpts of a broadcast for “reporting of current events”, so long as it
was “consistent with fair dealing.” A similar exception was present for
copyrighted works in Section 52(1)(a)(iii), which would, as discussed earlier,
apply with necessary modifications to both performer’s rights and broadcast
reproduction rights, vide Section 39(c). In effect, the Division Bench of the
Delhi High Court was tasked with framing the scope and boundaries of this
reporting exception. The Bench attempted to provide structure to the enquiry
by asking two separate questions in sequential fashion. One, whether the act
of the defendant was indeed one of reporting, and two, if it qualified as an act
of reporting, it still was within the limits of “fair dealing” with the plaintiff’s
broadcast.
On the first issue, the Bench held:
“Thus, two objective facts would determine whether the offending activity is
reporting or not. The first objective fact would be the nature of the coverage
with respect to information being diffused i.e. is it result oriented. And while
analyzing the first objective fact, the second objective fact to be simultaneously
identified is: Is it primarily an analysis or review of the sporting event. These
facts are capable of a percipient reception by a Judge i.e. are exoteric and are
not esoteric and can be objectively pleaded by parties and shown as objective
facts to a Judge”.
According to the Court, news, including sports news, would qualify to be a
case of reporting if the broadcast was result oriented and not an analysis by
way of review or comments. The Court articulates the sub-text determining
this view of “reporting”, when it observes that the freedom of the press to
disseminate information was recognized keeping in view their role in the
nineteenth and the twentieth centuries as organs of thought, empowerment,
culture and refinement, and not as organs of entertainment and revenue

18
generation as has become of them today.

From here, the Court proceeded to consider the second issue, i.e. when a case
of reporting would be consistent with the norms of “fair dealing” and hence
excused from infringement, but within the specific context of sporting events.
The Court identified the following factors to be of particular relevance in
deciding this issue: (i) the time gap between the sports news being aired and
the sporting event itself. The more proximate the timing of the broadcast to
that of the event, the higher the possibility of unfairness; (ii) the effect of the
offending use on the actual or potential market for the copyrighted work,
which in turn would require assessing (a) the possibility of competition
between the two broadcasts, (b) the extent of footage being used, (c) the body
of viewers, (d) the effect of the use on them, and in particular, whether they
were likely to perceive an association between the advertisements forming a
part of the defendant’s broadcast and the sponsorship of the sporting event
itself, and (e) the possibility of the defendant and its advertisers piggybacking
on the goodwill generated or likely to be generated by the sporting event.

Though on the face of it, the above principles seem to favour the organisers of
the sporting event and their licensed broadcaster, this decision can be
considered a fair verdict because of the realistic account it takes of sporting
events. The Court reasons that it would be a travesty of justice to place an
embargo on news channels from showing footages of important events within
the match for a certain time period post the happening of such events because
the very idea of news is instant diffusion. Thus, the right of official
broadcasters would only extend to restraining other broadcasters from
running specially sponsored programmes based on the particular sporting
event in question that make use of the broadcast footages. The Court brands
this a case of unfair competition on the part of unauthorised broadcasters,

19
which affects the economic interests of not only the official broadcasters but
also advertisers who pay hefty amounts to obtain advertising slots in the
official broadcast.
In a sense, the Division Bench has expanded broadcast reproduction rights to
include not only the right to broadcast the entire event but also use parts of
the broadcast to create innovative derivative programmes of viewer interest.
Montages used from the broadcast, interspersed with expert panel discussion,
is a television format that has assumed considerable entertainment value, and
the Court has rightly extended the monopoly of broadcast reproduction rights
to this format without clubbing it with the fair use exception in favour of
news reporting.

The picture that emerges from the above discussion of neighbouring rights is
that India today has a very robust regime, on paper, for protecting the rights
of performers and broadcasters. The major concern is that of enforcement,
which in turn is heavily dependent on awareness. The 2012 amendment
considerably enhanced the scope of performer’s rights but it does not seem to
have made any significant on-the-ground impact. Similarly, the rampant
cable piracy all around makes us rethink whether broadcast reproduction
rights are, after all, that instrumental in rewarding the entrepreneurial efforts
taken by broadcasters. We will have to give some more time to study the
working of these provisions to arrive at a definitive conclusion on their
efficacy, and in the interim, hope that they improve the lot of performers and
broadcasters for the better.

20
 Points to Remember

1. There are two important neighboring rights; performer’s rights and

broadcast reproduction right.
2. The Rome Convention, 1961, was the first international treaty to deal with
neighbouring rights.
3. India has not ratified to the Rome Convention yet.
4. In 1957, the Copyright Act did not define “broadcast”, using instead the
expression “radio diffusion.”
5. Performer’s rights were introduced by way of the 1994 amendment of the
Copyright Act, 1957.
6. The 2012 amendment to the Copyright Act considerably enhanced the
scope of performer’s rights.
7. As of July, 2018, the Union Cabinet in India has approved accession to the
WIPO Performance and Phonograms Treaty, 1996.

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Self-check Exercises

 What are the two important neighbouring rights?

 What is broadcast reproduction right?

 What is the scope of protection granted to performers in the Indian Copyright

Act?

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