1

MEDIA RIGHTS AND EXCLUSIVITY OF SPORTS BROADCASTING

G.Ujwala Pranathi1 and S.Nazeemunnisa2

The media rights(also called as broadcasters rights) has been acquired protection under the
Rome Convention of 1961and under the Indian Copyrights act, 1956. Without the present
broadcasting technology, the people were not been in a position to watch their favorite shows
or matches from different places. In order to protect the exploitation of resources they will be
provided with the exclusivity of broadcasting rights. But, will this grant of sole rights by the
developer will be limiting the scope of spreading the information?

Sports event broadcast rights are essential to the growth of television audiences. Exclusive
broadcasting rights for sporting events are unquestionably a well-established business
activity. It increases the value of TV rights for sporting events, which is especially important
given the ephemeral nature of interest in, and therefore the value of, sporting events.

The Rome Convention of 1961 established the exclusive rights approach, which gave
broadcasting organisations exclusive rights to reproduce or retransmit their broadcasts.
Following the establishment of the WTO, developing countries such as India were expected
to sign the TRIPS Agreement, which retained an exclusive rights approach while also
outlining the enforcement of rights and conflict resolution mechanisms.3

This paper will be discussing about the protection of Broadcasting rights and how the
exclusivity of these rights are being a blockage for the development of the same media
rights.One issue this paper will be addressing is the way broadcasting rights are been treated
in the same way as literary rights, and how the grant of these exclusivity is violating the
principles of fundamental rights.

Keywords: Media rights, Sports broadcasting, exclusivity, fundamental principles

1
3rd Year, B.A. LL.B (Hons.), Damodaram Sanjivayya National Law university, Vishakapatnam.( 8106879991,
ujwalapranathig@dsnlu.ac.in)
2 rd
3 Year, B.A. LL.B (Hons.), Damodaram Sanjivayya National Law University, Vishakapatnam. (7672011732,
Nazeemunnisa@dsnlu.ac.in)
3
Atharva Sontakke & Himaja Bhatt, Scope of rights of broadcasting organisations under copyright act,1957, 1
RGNLUSLR. 103, 112(2014)
 2

TABLE OF CONTENTS:

1. Introduction 4
2. Exclusive Rights of Broadcasting 4- 6
3. Arguments against the grant of exclusivity 6-9
3.1. Threat to competition law and fundamental principles 6-8
3.2. Questioning of these Exclusive Rights 8- 9
4. Exclusivity of Sports broadcasting in india 9-11
5. Conclusion 11-12
 3

1. INTRODUCTION :

The Indian Copyright Act of 1957 governs the privileges of broadcasting organisations in
India. The rights of broadcasting organisations were enacted into copyright law in 1994, and
the law was further revised in 2012 to expand the reach of the rights given to broadcasting
organisations. In its broadcasts, a broadcasting institution has a special privilege known as the
"broadcast replication right." The privileges are available for twenty-five years, starting with
the first day of the calendar year after the year of transmission. For example, twenty-five
years will begin on January 1, 2013.4 During this period the broadcasting organization’s
exclusive rights are said to be infringed if any person, without license: a) Rebroadcasts the
broadcast; or b) Causes the broadcast to be heard or seen by the public on payment of any
charges; or c) makes any sound recording or visual recording of the broadcast; or d) makes
any reproduction of such sound recording or visual recording where such initial recording
was done without licence or, where it was licensed, for any purpose not envisaged by such
licence; or e) sells or gives on commercial rental or offer for sale or of such rental, any such
recording or visual recording referred to clause (c) or clause (d). Section 39, on the other
hand, protects fair use of the broadcast, such as news reporting and bona fide analysis, as well
as all of the other fair use cases listed in Section 52. Further reforms were introduced in 2012,
giving media agencies a constitutional permission to distribute previously recorded literary,
musical, or sound recordings. They will now do so as long as they meet such requirements,
such as paying royalty to right owners at the Copyright Board-set rates and listing the names
of actors or musicians in the show, among others.5

Researcher in this paper argues that the exclusivity of broadcasting rights is invalid. This
exclusivity limits the availability of the broadcasting which violates the main principle of
broadcasting. Exclusivity’s main and most potent side effect is that it does foreclose
broadcasting markets.

2. EXCLUSIVE RIGHTS OF BROADCASTING:

The Rome Convention of 1961 defined the exclusive rights approach, which gave media
entities exclusive rights to replicate or retransmit their broadcasts. Following the creation of
the WTO, developed countries such as India were required to sign the TRIPS Agreement,

4
Atharva Sontakke & Himaja Bhatt, Scope of rights of broadcasting organisations under copyright act,1957, 1
RGNLUSLR. 104 (2014)
5
Atharva Sontakke & Himaja Bhatt, Scope of rights of broadcasting organisations under copyright act,1957, 1
RGNLUSLR. 105 (2014)
 4

which retained an exclusive rights approach while also detailing the implementation of rights
and conflict, redress mechanisms in greater detail. TRIPS' strongest supporters were
developing nations like the United States, which were primary sources of information and
had a large-scale information processing industry. Those countries desired to expand the
scope of intellectual property rights to include more categories of content by providing new
forms of rights to not only authors of original works, but also all legal bodies engaged in the
information processing industry, such as broadcasting organisations. Whereas
developing countries like India, which were big information importers, were more concerned
with quick access to information and focused more on public broadcasting since the private
broadcasting and connectivity movement in India was still in its infancy. As a signatory to the
TRIPS Agreement, Indian rules restricting broadcasting rights had to be modelled solely on
the TRIPS Agreement's lines, and later in accordance with the WIPO. The Indian Copyright
Act, 1957, illustrates the exclusive rights-based approach.6

For broadcasting companies, exclusivity of rights is crucial. Exclusivity is especially

important in sports broadcasting to ensure the value of the sports package. Sporting event
television rights are generally given on an exclusive basis within a particular jurisdiction. The
vast volume of advertisement sales and the massive number of people who attend sporting
7
competitions decide the importance of exclusivity. However, it is important to consider
whether this strategy focused on proprietary rights would restrict the rights of information
owners in favour of broadcasting organisations.

As previously noted, the producer of the original work has the freedom to broadcast it to the
general public. As a result, defining the scope of rights assigned to media entities is
challenging. Since it is the author's privilege, broadcasting companies cannot have the sole
right to communicate the writing to the public. Can this path to proprietary rights result in
copyright ownership? For example, a film producer can award exclusive broadcasting rights
to a television station. It means that only the broadcasting organisation has the right to
rebroadcast the film without a licence. In the end, it threatens to stifle the free flow of
information while also jeopardising the author's right to communicate his or her work to the
public.8
6
Atharva Sontakke & Himaja Bhatt, Scope of rights of broadcasting organisations under copyright act,1957, 1
RGNLUSLR. 113 (2014)
7
Coopers, Lybrand, “The Impact of European Union Activities on Sport”, Loyola International and
Comparative Law Review, 1999, p.939-940.
8
Atharva Sontakke & Himaja Bhatt, Scope of rights of broadcasting organisations under copyright act,1957, 1
RGNLUSLR. 113 (2014)
 5

3. ARGUMENTS AGAINST THE GRANT OF EXCLUSIVITY:

3.1. THREAT TO COMPETITION LAW AND FUNDAMENTAL PRINCIPLES

Giving broadcasters exclusive rights to their transmissions means that they will monitor who
gets access to the quality of the show. This, however, is fundamentally incompatible with the
aim of awarding access to broadcasting organisations. Broadcasting organisations, as mere
transmitters of copyright works rather than authors of creative works, may have little
discretion over the material they transmit, but only over the ‘signal' they produce to transmit
their broadcasts. This mainly seeks to protect broadcasters from signal stealing and piracy, all
of which are rampant. Simultaneous internet broadcasting of live cricket matches are a
regular phenomenon, with the bulk of them depending on signal piracy. Broadcasters should
be given legal immunity for these types of activities. However, a monopoly on information
rather than its method of dissemination is more likely to emerge from an exclusive rights
strategy. The RPC judges decided that an auction with only one winner, conducted only at
irregular intervals, was preferable to a situation in which many broadcasters could obtain
access to live broadcasting rights. “If the exclusivity provisions are struck down, competition
between broadcasters will be greatly reduced,” the Court said. It is in the public's best
interests for such rivalry to be fierce. As a result, its elimination will deprive the public of a
particular and important benefit.”9

Unique live premium sports rights have been a primary source of market dominance in
contemporary broadcasting. This is particularly noticeable in Europe. Where pay- TV
broadcasters have used football rights to propel the number of people who use their facilities.
In the United States, partially as a function of the SBA, but also as a result of other factors, a
variety of other cultural and economic factors, the transition in live sports from free-to-air
programming to paid television has occurred not had the same effect. However, also in the
United States, access to Sports rights, in fact, may have a huge effect on commercial success
within the burgeoning pay- TV industry. As a result, the competitiveness challenges faced by
networks aiming to gain a comparative edge over their competitors by sports broadcasting are
just as important, if not more so, than those previously addressed in relation to the sale of
sports rights.10

9
Re an Agreement between the FAPL and BskyB [2000] E.M.L.R. 78, [1999] UKCLR 258 (Restrictive Practices
Court) p.162.
10
[TOM EVENS, PETRO IOSIFIDIS, PAUL SMITH], [ THE POLITICAL ECONOMIC SPORTS RIGHTS:
BETWEEN CULTURE AND COMMERCE]( chapter5 ) (Palgrave Macmillan 2013)
 6

The value of live sports rights for broadcasters, particularly pay television broadcasters, stems
from two fundamental economic characteristics of sports programming. First, sporting rights
are a transient commodity, since fans are mostly only interested in live coverage, or at least
even more so. When the outcome of a sports event is determined, the television rights to the
event lose a lot of their importance. Second, there are few, if any, options to live coverage of
a single sporting event. Live streaming of another sport, or even another football match, is not
a suitable replacement for football fans. As a result, the market for sporting rights is often
very limited, which is significant since the broader the market, the greater the likelihood that
a monopoly position would be considered a violation of antitrust law. Furthermore, since
most stations depend on exclusivity to maximise the marketing appeal of the sports content
they sell, the possibility of an antitrust law violation in the sports programming industry is
increased. After all, if many broadcasters in the same area could present the same case,
obtaining the rights would no longer enable a broadcaster to distinguish itself from its rivals11
Because of its exclusivity and the inherent economic features of sports programming, the
market for sports programming is highly vulnerable to antitrust violations.

One solution to this dilemma may be to forbid exclusive agreements for live sports rights. For
example, Harbord and Szymanski (2004: 3) argue for a "non-exclusive offer to several
broadcasters" as a response to the current antitrust problems surrounding the purchasing and
sale of English Premier League football. However, sports leagues and (at least some)
networks would be vehemently opposed to such a move, which could fatally disrupt the
sports broadcasting market. Broadcasters are reluctant to pay large amounts of money to offer
coverage of sporting competitions that are not available elsewhere. The alternative approach
taken by competition law, especially in Europe, at both national and EU levels, has been to
treat exclusive live sports broadcasting broadcast rights, particularly football, under the
so-called "necessary facilities doctrine." The ‘essential facilities theory' simply states that
such upstream (i.e., sports rights) inputs are required for downstream broadcasters to succeed
in the applicable market (i.e., sports programming), and that they cannot be conveniently
repeated without dramatically increasing costs. Following that, all industry entrants are
granted access to the "necessary service" on "equal, equitable, and non-discriminatory" terms,
which are overseen by broadcasting and/or antitrust regulators, in order to promote
competition.12

11
(Jeanrenaud and Késenne, 2006: 8– 11).
12
[TOM EVENS, PETRO IOSIFIDIS, PAUL SMITH], [ THE POLITICAL ECONOMIC SPORTS RIGHTS:
BETWEEN CULTURE AND COMMERCE]( chapter5 ) (Palgrave Macmillan 2013)
 7

3.2. THE QUESTIONING OF THESE EXCLUSIVE RIGHTS

To distinguish themselves from free-to-air networks in Europe, pay- TV outlets have entered
into exclusive agreements with sports rights holders. Sports rights holders devised exclusive
window strategies after determining that this was the most lucrative tactic. This allowed them
to increase their bargaining power and take advantage of the rights' scarcity. However,
reduced competition in each layer of the European pay- TV industry has resulted in a radical
shift in the definition and scope of broadcasting rights acquisition. Unique rights windows
were previously thought to be a way for all pay- TV providers to achieve a comparative edge
over free-to-air networks, but incumbent (and first-moving) operators have reinterpreted them
as a luxury to provide these contents exclusively (Nicita and Ramello, 2005). Exclusive
trading seems to be the product of first movers' strategic tactics to foreclose the market.
First-movers sought exclusivity to use sporting rights as a special marketing proposition in
exchange for exorbitant sums of money.13 As a result, the European pay- TV industry has
grown into a monopolistic business system and a paradigm of "competition for the market."
As a result, antitrust concerns in Europe and the United States have been raised about
network externalities created by exclusive agreements between upstream rights holders and
downstream pay- TV operators, as well as the possible foreclosure consequences of vertical
restrictions. Exclusive dealing is considered an essential component of pre-emption strategies
used by first-movers to raise rivals' costs, deter efficient market entry, foreclose markets, and
eventually deprive the public of access to major sports coverage. While exclusive dealing is
accepted as a common practise in broadcasting and does not in and of itself violate the
principles of free and fair competition, it is considered an essential component of pre-emption
strategies used by first-movers to raise rivals' costs, deter efficient market entry, foreclose
markets, and (Doganoglu and Wright, 2010).14

Exclusive rights purchase, according to Evens (2010), represents one-sided business model
logic, while sports coverage is gradually characterised by two-sided intermediaries, inter-firm
partnerships, revenue share arrangements, and direct-to-consumer retailing. Sports rights
holders are slowly recognising that working with a single pay-TV provider and thereby
keeping significant segments of the subscription sector unserved is unsustainable and could
also result in negative externalities. As a result, multi-platform delivery allows content

13
[TOM EVENS, PETRO IOSIFIDIS, PAUL SMITH], [ THE POLITICAL ECONOMIC SPORTS RIGHTS:
BETWEEN CULTURE AND COMMERCE] ( chapter2) (Palgrave Macmillan 2013)
14
[TOM EVENS, PETRO IOSIFIDIS, PAUL SMITH], [ THE POLITICAL ECONOMIC SPORTS RIGHTS:
BETWEEN CULTURE AND COMMERCE] ( chapter2) (Palgrave Macmillan 2013)
 8

creators to make better use of their capital, expand their audience scope, and increase their
return on investment. Sports rights holders might consider a revenue share agreement instead
of lump-sum payments, which would encourage new platforms to join the market and boost
competition.15

4.EXCLUSIVITY OF SPORTS BROADCASTING RIGHTS IN INDIA

There are number of cases observing the interface between IPR and Competition laws. In the
Aamir Khan Productions Pvt. Ltd. v. Union of India,16 the Bombay HC held that CCI has
jurisdiction to hear all the matters vis-à-vis competition law and IPR. CCI also held that IPR
related right is not sovereign in nature but merely a statutory right granted under a law.17

In Entertainment Network (India) Limited v. Super Cassette Industries Ltd,18 the Supreme
Court reiterated on the issue related to conflict between two laws. The court observes that
even though the copyright holder has full monopoly but the same is limited in the sense that
if such monopoly creates disturbance in smooth functioning of the market will be in violation
of competition law and same was in relation to refusal of license. Undoubtedly, IPR owners
can enjoy the fruits of their labour via royalty by issuing licenses but the same is not absolute.

The European Commission considers the sale of exclusive broadcast rights for football
matches to be anti-competitive, not only because it reduces consumer choice, but also
because it prevents other broadcasters from competing for the rights. This has implications
for broadcast rights for cricket matches, which are owned by the Board of Cricket Control for
India and the Indian Premier League due to similarities in the league's structure.19

Agreements that limit or distort markets are often considered unconstitutional under
European competition law. Because of the unpredictability of the result, simple has found that
life spot activities find a recognisable audience on harvest build business, distinguishing them
from other types of entertainment. In one case KNVB Vs Sports 7, the EC Gelda do
exclusivity Percy is not anti competitive grant of exclusive broadcast rights for eight years by
the Danish Football Association was anti competitive in TV rights to the union of European

15
[TOM EVENS, PETRO IOSIFIDIS, PAUL SMITH], [ THE POLITICAL ECONOMIC SPORTS RIGHTS:
BETWEEN CULTURE AND COMMERCE]( chapter 2) (Palgrave Macmillan 2013)
16
(2010) 112 Bom L R 3778
17
Kingfisher vs Competition Commission of India, Writ petitions no. 1785 of 2009.
18
2008 (5) OK 719
19
[Anurag Dubey and Kartik Ganapathy],[ Consumer choice & live cricket], [MINT]( April 09, 2008,
10:48 PM),
https://www.livemint.com/Opinion/7YOEfIOHtmuWZAeF7UrZXP/Consumer-choice-amp-live-cricket.html
 9

Football Association Champions League 2002 the easy held at granting the sale of the entire
rights on an exclusive basis for a long period to one broadcaster leads to unsatisfied demand
from other broadcasters and reduced every T to make an attractive offer to customers further
at the end of the exclusivity. The current broadcaster has a stronger financial position to
secure the rights for a second term. With a growing abundance of TV rights being awarded on
an exclusive basis for a long period of time or for covering a vast number of activities, it's
also easy to see how television rights are being scarce. As the only provider willing to
compete on TV rights sold in big packets, this improves the business share of the most
popular broadcasters.20

Any arrangement that induces or is likely to have an appreciable adverse effect on

competition is invalid under India's Competition Act 2002. Agreements that restrict or
regulate competition are considered to be anti-competitive, but good eci has been selling
exclusive broadcast rights for a long time. When private broadcasters began to emerge in the
1990s, the BCCI sold a five-year deal to ESPN Star Sports and Prasad Bharti.21

The cumulative effect of BCCI grant of exclusive rights for the period 2006 - 10 2006 - 11
and 2005- 08 can lead to the following:

1. Creation of barriers to new entrances

2. Driving out existing competitors and

3. Foreclosure of competition by hindering entry into the market.

This trend runs counter to the philosophy of broadcasting rights given to broadcasting
companies. The legislation was designed to establish a monopoly between organisations only
in terms of the method of material delivery, not the whole mechanism of knowledge
transmission. As previously mentioned, this mode or medium of transmission is at the heart
of the concept of "broadcast." Broadcasting news can be done in a variety of ways. And the
author has the freedom to have his work broadcast in whatever medium he likes. These
various forms of broadcasting must be dealt with differently.

20
[Anurag Dubey and Kartik Ganapathy],[ Consumer choice & live cricket], [MINT]( April 09, 2008,
10:48 PM),
https://www.livemint.com/Opinion/7YOEfIOHtmuWZAeF7UrZXP/Consumer-choice-amp-live-cricket.html
21
[Anurag Dubey and Kartik Ganapathy],[ Consumer choice & live cricket], [MINT]( April 09, 2008,
10:48 PM),
https://www.livemint.com/Opinion/7YOEfIOHtmuWZAeF7UrZXP/Consumer-choice-amp-live-cricket.html
 10

Due to an increase in controversies over sports broadcasting, the Ministry of Information and
Broadcasting released a policy directive in 2005 requiring private broadcasters to share the
live telecast feed of national events such as cricket matches with the government-owned
public broadcaster Doordarshan. Ten Sports filed a lawsuit against the policy, claiming that it
violated their exclusive broadcasting rights. According to the court's order, Doordarshan must
broadcast a "uninterrupted live stream" from Ten Sports. During lunch breaks, Doordarshan
was not able to air its own commercials or programmes. Nimbus Sports was forced to share
its live match feed with Doordarshan due to a dispute between the two companies. The feed,
however, was to be delayed by seven minutes. The Transmitting Signals (Mandatory Sharing
with Prasar Bharati) Act, 2007, was passed by Parliament in response to the popularity of
cricket in India. It required all private broadcasters to share their live television and radio
feeds with Doordarshan and All India Radio, excluding commercials, during national events
as determined by the Ministry of Information and Broadcasting.

As a consequence, in today's modern era, the exclusivity of media rights has never been more
important. Unique licences to exploit the content across all financially profitable channels are
sought by media conglomerates. There is a chance of hegemony as a result of convergence
because it puts ultimate leverage in the hands of a few media conglomerates who may
dominate the entire film industry.

5.CONCLUSION:

In India, the privileges granted to broadcasting organisations are merely in accordance with
international treaties and conventions that call for an exclusive rights-based approach. In this
regard, Indian law has been especially modelled on the principles laid down by the Rome
Convention 1961 and the TRIPs Agreement 1994, right from amendments in 1999 to 2012. 22

The reach of broadcasting information rights has a significant impact on freedom of speech
and expression. As a result, it is critical to evaluate the extent of broadcasting rights by
evaluating their effect on freedom of speech. While it is argued that inbuilt exceptions such as
compulsory licencing and the fair use doctrine keep the balance between freedom of
expression and exclusive intellectual property rights, basic human rights such as freedom of

22
Atharva Sontakke & Himaja Bhatt, Scope of rights of broadcasting organisations under copyright act,1957, 1
RGNLUSLR. 120 (2014)
 11

expression should be invoked to determine the scope of intellectual property rights and their
exceptions, paving the way for constitutionalization of intellectual property rights.

The authors suggests to consider the signal based protection of the broadcasting rights rather
than the exclusivitry of broadcasting rights. Developing countries like India, as well as
activists who support access to information, have been calling for broadcasting organisations
to be protected based on their signals.

REFERENCES:

1. Laura Jeffords Greenberg, Diana M.Martinez; The role of Extended Reality in sport &
an overview of key global liscencing considerations, LAWINSPORTS, 22 February
2018 ,
https://www.lawinsport.com/topics/item/the-role-of-extended-reality-in-sport-an-over
view-of-key-global-licensing-considerations.
2. Collectivity vs exclusivity: conflict in the broadcasting arena, ENTERTAINMENT
LAW REVIEW ARTICLE 2004 ( Mar, 27, 2021, 00:32 AM),
https://www.danielgeey.com/post/collectivity-v-exclusivity-conflict-in-the-broadcasti
ng-arena/
3. Naman Maheswari , Conflict between Intellectual property law and Competition law:
Critical and comparative analysis, MONDAQ ( Mar 29, 2021, 13:57 PM),
https://www.mondaq.com/india/cartels-monopolies/807504/conflict-between-intellect
ual-property-law-and-competition-law-critical-and-comparative-analysis
4. WIPO, https://www.wipo.int/pressroom/en/briefs/broadcasting.html, ( Mar 24, 2021,
11:04 AM)
5. Shibumi Raje , Emerging law in sports broadcast and proprietary rights, THE
SPORTS LAW & POLICY CENTRE, Dec 22, 2012,
https://sportslaw.in/home/2012/12/22/emerging-law-in-sports-broadcast-and-proprieta
ry-rights/
6. Shibum Raje, Keeping fans in the dark: Sports event blackout regulations, THE
SPORTS LAW & POLICY CENTRE, Mar 5, 2014,
https://sportslaw.in/home/2014/03/05/keeping-fans-in-the-dark-sports-event-blackout-
regulations/
 12

7. Vol.111, Martin Cave and Robert W.Crandall, SPORTS RIGHTS AND THE
BROADCAST INDUSTRY,( Oxford university press on behalf of the royal
economic society)
8. Jagdish Sagar, Entertainment media and IP Rights: An Indian Perspective, ILJ 1
(2002)