09ip6001_Broadcasting in India

1

SEMINAR PAPER

ON

BROADCASTING IN INDIA-LEGAL IMPLICATIONS

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

IIT KHARAGPUR

2010

SUBMITTED BY:

Harish Subramaniam

09IP6001

2

Sl.no Section Page

1 Bibliography 4

2 Introduction 5

3 History of Broadcast reform in India

3.1 “Usage of Device”- restrictions 7

3.2 Beginning of a new medium and developments 8

3.3 “Free the mass media systems” 8

3.4 Autonomy of the broadcast media – a timeline 9

3.5 Guidelines and Controls 10

3.5 The Cable Television arrives 13

3.6 The Draft Media policy and the technology related issues 14

3.7 CAS, DTH and The Convergence Bill 16

3.8 Radio Broadcasting and Licensing 17

4 Judicial Pronouncements and the impact of the same

4.1 Broadcasting organization and the departmental rules 18

4.2 Censorship in Broadcasting 19

4.3 Fundamental right to Broadcast- The airwaves belong to the

citizens

20

4.4 Broadcast of Sports Signals 22

5 Protection of the Broadcast content -Broadcast Copyright 23

5.1 Convergence of technologies and the lack of laws to deal with 24

3

the same

6 Conclusion 28

4

BIBLIOGRAPHY

Papers:

1) Sevati Ninan , History of Indian Broadcasting Reform, 5 Cardozo J. Int'l & Comp. L. 358 1997

2) Mixed Signals: Radio Broadcasting Policy in India,K Kumar,Economic and Political Weekly, Vol. 38, No. 22 (May 31 - Jun. 6, 2003), pp. 2173-2182

Caselaws:

1.Cinemart Foundation v. Union of India AIR1993SC171

2.Director General,Directorate General of Doordarshan & Ors v. Anand Patwardhan and Ors

AIR2006SC3346

3.Vinodanand Jha v. State , unpublished judgment

unpublished judgment

4.Secretary, Ministry of Info. & Broad. v. Cricket Ass'n of Bengal

(1995) 2 S.C.C. 161.

5.Citizen,Consumer and Civic Action

Group v. Prasar Bharati and others

MANU/TN/1696/2004

6.Espn-Star Sports v. Global Television

Company

2008 (38) PTC 477 (Del)

7.Sun Television Networks v. Royal Cable

Vision

unpublished judgment

Other Sources:Committee reports and Department notifications

5

Introduction

Mass Media systems of the world vary from each other according to the economy,

polity, religion and culture of different societies. In societies, which followed communism

and totalitarianism, like the former USSR1 and China, there were limitations 2of what the

media could express about the government. Almost everything that was expressed

against the State was censored for fear of revolutions . On the other hand, in countries

like USA, which have a Bourgeois Democracy, almost everything is allowed, the

harshest of criticism.

India, being a democracy, was expected to follow the route of United States , to allow

harshest of criticism and be a open and a participatory democracy, but had erred and

placed reliance of the airwaves to such an extent that the Government run radio and

television channels were the only available broadcast media for nearly forty years of its

humble existence.

Before the invention of communication satellites, communication was mainly in the form

of national media, both public and private, in India and abroad. The current

technological advances have ensured that the information reaches in microseconds and

the mediums that is used for information are multi-pronged. It has been considered that

the broadcasting of material over radio and television as one of the standard modes of

broadcast. But the increasing influence of the government over the broadcast of live

1Broadcasting's Governing Body In The Soviet Union Was The "USSR State Committee For Television And Radio Broadcasting" – Under Strict Censorship And Content Largely Modified And For The Foreign Radio Signals, From The End Of The Second World War Until The Late 1950s, Most Foreign Broadcasts In Soviet Languages Were Jammed, Although When Khrushchev Visited The United Kingdom In I956 And The United States In I959 Jamming Was Either Suspended Or Greatly Reduced. On The Other Hand, During The Hungarian Revolution In November 1956 And The Soviet Invasion Of Prague In August 1968 It Was Intensified. In The Late 1950S And Early I960s The Soviet Authorities Tried To 'Modify The Content Of Foreign- Radio Through Informal And Tacit Bargaining With The West'...At The Same Time They Did 'Selective Jamming According To Content, Frequently Extending To Item-By-Item Treatment Of News Programs'. See Soviet Studies, Vol. 29, No. 1 (Jan., 1977), Pp. 161-163, 2 The Use Of Radio In China, Hugh House, The China Quarterly, No. 2 (Apr. - Jun., 1960), Pp. 59-68,“The Hard "Core" Of The Output From The Centre Reflects This Fundamentally Important Role Of Radio In China. The Two National Programmes, Broadcast By The Central People's Broadcasting Station In Peking, Are Built Around A Basis Of News Bulletins. A Full, Fifteen minute News Bulletin Can Be Heard Almost Every Hour of the Day. Most Of The Items In These Bulletins Deal With Internal Achievements; Later Items Are On Achievements Or Events In Communist Bloc Countries And, At The Very End, Comes News From The Non-Communist World And, Even Then, Usually Only When The Events Referred To Are Advantageous To The Communist Position. There Are No Private Broadcasters In China-”

6

sporting events and the necessary sharing of signals of the same with the Government

broadcaster , evokes a question, that whether there is a necessity of control of this sort

in this regard? Or on the basis of policy decisions and laws, does the right to expression

as envisaged in the Constitution being barged in by the Government? Why does the

Government place restrictions on broadcast of news and current affairs pro grammes

and the restrictions on the basis of award of FM radio licenses as well?

Another important issue that relates to broadcasting is that of the intellectual property

associated with the content of the broad casted material. Most of the time we do see

broad casted material available as a pirate broadcast over the Internet and the video

uploading sites like You Tube et.all. Is there any protection of intellectual property when

there has been broadcast of material? And what are the necessary protections awarded

for the same. The question of broadcasting copyright and intermediary liability for

Internet broadcasting is to be analyzed and the questions of implementation and the

effect of laws are to be questioned in this regard. Has the Internet broadcasting can be

controlled effectively by the Indian Information Technology Act or does it require a multi-

pronged approach towards Internet broadcasting as a whole.

7

History of Broadcast reform in India

“Usage of Device”- restrictions

On tracing the evolution of the broadcast regulations in India, the Indian Telegraphs Act,

1885, the power to control the working and ownership of Telegraph devices3 in India ,

providing all control for establishment, maintenance and working of telegraphs in India4 .

Section 7 of Act 47 of 1957, an amendment to the 1885 Indian Telegraph Act, expanded

the term "telegraph" to "any telegraph line, appliance, or apparatus for the purpose of

affording means of telegraphic communications." The Indian Government's current

monopoly over radio and television broadcasting derives from this Act.

The Ministry of Information and Broadcasting has been known to oppose the import of

satellite earth stations and the up linking to satellites by private parties under the

provisions of this Act, thus stretching the interpretation of "telegraph" to cover the

generating of signals for telecasting. To deal with the possession of wireless apparatus

and radio receivers which were not part of this Act, the Indian Wireless Telegraphy Act

of 1933 came into being. It made the possession of a radio set without a license an

offense.

3Section 3(1) Of The Indian Telegraph Act, 1885 Defines “Telegraph Device” As “"Telegraph" Means Any Appliance, Instrument, Material Or Apparatus Used Or Capable Of Use For Transmission Or Reception Of Signs, Signals, Writing, Images And Sounds Or Intelligence Of Any Nature By Wire, Visual Or Other Electro-Magnetic Emissions, Radio Waves Or Hertzian Waves, Galvanic, Electric Or Magnetic Means.

Explanation. – "Radio Waves" Or "Hertzian Waves" Means Electro-Magnetic Waves Of Frequencies Lower Than 3,000 Giga-Cycles Per Second Propagated In Space Without Artificial Guide;4Section 4 Of The Indian Telegraphs Act, 1885 Reads As “4. Exclusive Privilege In Respect Of Telegraphs, And Power to Grant Licenses. (1) Within [India], The Central Government Shall Have Exclusive Privilege Of Establishing, Maintaining And Working Telegraphs: Provided That The Central Government May Grant A License, On Such Conditions And In Consideration Of Such Payments As It Thinks Fit, To Any Person To Establish, Maintain Or Work A Telegraph Within Any Part Of [India]: [Provided Further That The Central Government May, By Rules Made Under This Act And Published In The Official Gazette, Permit, Subject To Such Restrictions And Conditions As It Thinks Fit, The Establishment, Maintenance And Working-(A) Of Wireless Telegraphs On Ships Within Indian Territorial Waters [And On Aircraft Within Or Above [India], Or Indian Territorial Waters], And (B) Of Telegraphs Other Than Wireless Telegraphs Within Any Part Of [India].(2) The Central Government May, By Notification In The Official Gazette, Delegate To The Telegraph Authority All Or Any Of It Its Powers Under The First Proviso To Sub-Section (1). The Exercise By The Telegraph Authority Of Any Power So Delegated Shall Be Subject To Such Restrictions And Conditions As The Central Government May, By The Notification, Think Fit To Impose.]

8

Beginning of a new medium and developments

Initially confined to Radio broadcasting, the first radio service in the country was

provided by the Indian Broadcasting Company which opened in 1927 and went into

liquidation by March 1930, having established stations at Bombay, Calcutta, and

Lahore.

A month later, in April, broadcasting was placed under the direct control of the

Government of India in the Department of Industries and Labor. A service designated

the Indian State Broadcasting Service began broadcasting. In December 1932, the

British Broadcasting Corporation ("BBC") began a regular broadcasting service to the

Empire, India's first and longest lasting encounter with the foreign media.

In 1941, it was transferred to the new Department of Information and Broadcasting

which, after independence, became the Ministry of Information and Broadcasting in

1947. Comprised as India was of princely states, the British Government decided to

give the governments of provinces and the rulers of what it called "federated states" the

right to construct and use transmitters and to regulate and impose fees in respect of the

construction and use of transmitters and receiving apparatus in the province or state. 5

It is an interesting because, following independence, the Government of India kept

broadcasting firmly in the hands of the Central Government.

In the early nineties, long after television was also established in the country, the State

Government of West Bengal demanded that the second television channel that had

been started by the state broadcaster Doordarshan in metropolitan cities be handed

over to state governments to run. But to date, the Central Government has not

conceded to this demand.

“Free the mass media systems”

The Chanda Comittee report which provided the framework of today's Prasar Bharati

and the idea of independence of the mass media systems from hands of the

5Section 129 Of The Government Of India Act Provides The Right To Own Transmitters And Transmit Information.

9

government to an independent organization, the report of the Committee on

Broadcasting and Information Media appointed by the Government in 1964.6

Blaming insufficient allocation of resources for the development of the mass media for

the "inadequate information, poor motivation and insufficient participation by the masses

in the country's development programme.7

In the spirit of article 19 of the Constitution, India has developed as a democracy with a

vibrant free press. At the same time, because the basic law relating to telegraph urges

government control of broadcasting, radio and television have remained government

media. With the introduction of the television broadcasting in India, trials for the usage

of television for agricultural information , very similar to that of the Soviet Union ,

modestly began in Delhi in 1959 , and spreading to other cities (Bombay in 1972 ) and

the far flung Srinagar and Amritsar, for the spreading the Indian ideas in the border

areas where the transmission of Pakistani television could reach.

The misuse of television by Indira Gandhi during the period of Emergency - which

constituted democratic India's first suspension of democratic rights - led to a political

demand for autonomy for the government media. The expression of the dissent for a

free broadcasting organization gave a white paper named “ White Paper on Misuse of

mass media during emergency” 8 providing the idea of suggesting autonomy within a

government framework.

Autonomy of the broadcast media – a timeline

The committee proposed the formation of a trust which it named Akash Bharati. This

was also called the National Broadcasting Trust.

6The Chanda Committee Report Of 1964 “[C] Confidence In The Faithfulness Of Government Information Has To Be Generated. Suspicion Of Official Information Has Deepened In India Because Of An Incorrect, Even Improper, Use Of Media For Personalized Publicity And An Undue Accent On Achievements. It Is Necessary To Correct This Distortion, And Also To Pose In

Proper Perspective The Many Problems That Confront The Country Without Withholding Adverse Facts While At The Same Time Stating Convincingly How The Remedy Lies In The People's Hands”

7Virendra Kumar, Comm. On Broadcast and Info Media, Committees and Discussions in India 1947-1973, At 25 (1978).8Headed By VG Verghese, Senior Journalist”

10

The Akash Bharati Bill was introduced in Parliament but lapsed after the dissolution of

the Lok Sabha in 1979 when the Government fell. The Trust would conduct and

organize public broadcasting services and would develop, extend, and improve these

services in the public interest. It would advise the Central Government in respect of all

matters relating to broadcasting. Under its charter, the Trust was to provide a national

broadcasting service predominantly Indian in content and character, and it was to

uphold the "impartiality, integrity and autonomy of broadcasting in the country."

While designing a system for public broadcasting in India, creating franchise radio

stations and allowing to broadcast programs for the purpose of providing content on

education and social themes, news broadcast was out of question and was provided an

option of transmission of news from the government run broadcasting organizations , all

under the control and licensing power of the board.

When Indira Gandhi returned to power in 1980 her Government decided not to back this

Bill because, according to the annual report for 1979 to 1980 of the Ministry of

Information and Broadcasting, "such an organisation is not considered necessary to

enable those mass media to discharge their basic objective of serving people who are

not served by other media.".9

Not only was autonomy not considered necessary at this point, but further direction to

these media from the Government was considered necessary.

Guidelines and Controls

The same year, 1980, the Ministry of Information and Broadcasting issued policy

guidelines for the official media and placed these before both houses of Parliament.

Further more the the Government constituted an advisory committee to make

recommendations from time to time regarding the restructuring of the various media

organizations and to enable them to function in a more professional and efficient

manner.10

9MINISTRY OF INFO. AND BROAD., GOV'T OF INDIA, ANNUAL REPORT 1979-8010Called As The Parthasarathi Committee Which Prepared The Guidelines For News Broadcasters Document

11

They cover news selection and presentation, political coverage, coverage of the

president, prime minister, and ministers, statements and rejoinders, strikes and bandhs,

riots and disturbances, sex and crime, national calamities, deaths and anniversaries,

external news, subversion and insurgency, comments and opinions, speculation and

rumor, and parliament coverage. While the Guidelines stressing on the media to focus

on material relating to national development and the maintenance of unity and

communal peace, it also specified the "in a developing country the special function of

broadcasting should be the coverage of development, its significance, achievements

and problems.”11

Following Indira Gandhi's assassination towards the end of 1984, the government

media delayed announcing her death, which the country learned of from the BBC. It

symbolized AIR's and Doordarshan's lack of professional independence. Rajiv Gandhi,

at the start of the tenure, had looked at the autonomy of the broadcast organizations,

but abandoned and remained on the same plan of utilizing the broadcast organizations

for the election campaign which became a huge election issue.

Post , fall of the Congress government, the new elected government , put a course of

action on the autonomy of the broadcast media12 and hence introduced the Prasar

Bharti bill, which envisaged the creation of a Corporation and a board of Governors,

with a representative from the Ministry of Information and Broadcasting, on the board.

The spirit of the Prasar Bharti bill largely differed from that of the Akash Bharati bill,

draft Prasar Bharati Bill dropped the clause promising to "uphold the fundamental right

to freedom of speech and expression guaranteed under Article 19(1)(a) of the

Constitution." ' It also dropped the clause pledging to "uphold the impartiality, integrity,

and autonomy of broadcasting in the country.13 In addition, Akash Bharati spells out the

Trust's relations with the Government while Prasar Bharati says nothing on the subject.

11Advisory Committee. On Official Media, Ministry Of Info. And Broad., News Policy For Broadcast Media: Guidelines Prepared By The Advisory Comitttee On Official Media,1982

12Nitesh Sengupta Committee,1996 Recommendation Of Structure Of The Prasar Bharati Corporation13Section 5(B) Of The Akash Bharti Bill,1978

12

The Bill that was finally passed in 1990 was different in some important respects from

the draft Bill introduced in 1989. The most significant difference was the incorporation of

a parliamentary committee to oversee the functioning of the Corporation and sub-mit a

report on its working to Parliament.

This was a 22-member committee, fifteen of whom would be from the Lok Sabha and

seven from the Rajya Sabha. It was widely perceived as being a measure that would

dilute the autonomy given to the government media.

The final version of the Bill also included a colorful little clause describing the grounds

on which the chairman or any whole-time member of the Board could be removed: "if

such... is convicted of any offence involving moral turpitude." 14.

Overall, the quality of autonomy finally conferred legislatively on the electronic media in

1990 was diluted in spirit compared to what had been conceived of in 1978. Parliament

passed this Bill, but the Government fell before it could be notified. The caretaker

Government that came in shelved the question of autonomy. This Act then went into

cold storage for another seven years until yet another non-Congress coalition

Government decided to notify it in 1997.15 In the act, two sections namely , section 2316

and section 24,17 restricts the board in a manner not envisaged , while Section 23 deals

with broadcast regulation by the Central Government, the section 24 deals with

provision of information to the Government by the broadcaster as and when required.

14Prasar Bharati (Broadcasting Corporation Of India) Act, 1990, No. 25, § 7(3) (D).15The Section 13 Of The Prasar Bharati Act Was Dropped And Section 16 Transferred All The Assets Of The Akashvani And Doordarshan For A Token Fee Of One Rupee16Section 23 Of The Prasar Bharati Act Reads As “23. Power Of Central Government To Give Directions.—(1) The Central Government May, From Time To Time As And When Occasion Arises, Issue To The Corporation Such Directions As It May Think Necessary In The Interests Of The Sovereignty, Unity And Integrity Of India Or The Security Of The State Or Preservation Of Public Order Requiring It Not To Make A Broadcast On A Matter Specified In The Direction Or To Make A Broadcast On Any Matter Of Public Importance Specified In The Direction. (2) Where The Corporation Makes A Broadcast In Pursuance Of The Direction Issued Under Sub-Section (1), The Fact That Such Broadcast Has Been Made In Pursuance Of Such Direction May Also Be Announced Along With Such Broadcast, If The Corporation So Desires. (3) A Copy Of Every Direction Issued Under Sub-Section (1) Shall Be Laid Before Each House Of Parliament.” 17Section 24 Of The Prasar Bharati Act ,1997 “24. Power Of Central Government To Obtain Information.—The Central Government May Require The Corporation To Furnish Such Information As That Government May Consider Necessary.”

13

The Cable Television arrives

Though the advent of cable as a phenomenon began only after the Gulf War, the

Government had already appointed a committee in June 1989 to study the various

aspects of the establishment of Cable Television Networks and Dish Antennae Systems

in the country. It submitted its report in February 1991. Its findings on the extent and

nature of cable networks in the country laid the foundation for efforts to regulate cable.

In May 1991, the Hong Kong-based STAR TV began beaming channels into India via

the ASIASAT-1 satellite with its South Asian footprint. Just a few months later, the

Government appointed a committee 18to take a quick look at introducing competition in

the electronic media.

It made some guarded recommendations in this regard by October 1991. This was the

first indication that the Government was registering the advent of competition and

looking beyond just the issue of autonomy for the state-owned media to the eventuality

of private sector competition for the government channels.

This was quickly followed up in December by the appointment of another committee,

whose charter was to look at Doordarshan's commercial services. Its report

acknowledged that competition from the new foreign satellite channels was resulting in

an erosion of Doordarshan's viewership and, consequently, commercial revenues. It

suggested revamping Doordarshan's programming content as well as its program

scheduling patterns, more aggressive wooing of advertisers by state television which so

far had a complete monopoly on all advertising, reviewing Doordarshan's advertising

code to make it more liberal, and rationalizing its advertising rates.

In September 1992, yet another committee was appointed19, this time to look at the best

way to open up the electronic media to private broadcasters. Again, this move towards

privatization represented a significant change in policy: private producers would

produce programs for Doordarshan, but they had never before been given time on the

18The Inter-Departmental Committee On Introducing Competition In The Electronic Media Under The Chairmanship Of Shri K.A.Varadan, Additional Secretary In The Ministry Of Information And Broadcasting19Air Time Committee Of India Dealt With Providing Airtime To Private Broadcasters In The DD Metro Channel And In The State Owned FM Stations

14

channels to manage and use without any program preview. The Committee came up

with a lot of idealistic and radical recommendations. Like many committee reports

before it, this one too was never implemented.

Meanwhile, with the demolition of the Babri Masjid in December 1992, Doordarshan

once again retreated into news censorship, even as BBC and CNN lost no time in

telecasting the news, first with file pictures and later with updates from the scene. It

showed that competition had not changed Doordarshan's innate instincts as a timid

state broadcaster.

After three decades of unimplemented good intentions, 1995, 1996 and 1997 have seen

rapid developments in the field of Indian broadcasting reform.

With cable-delivered foreign satellite channels making steady inroads into both people's

homes and their imaginations, the Government suddenly moved in September 1994

to promulgate an ordinance regulating cable television20.

It sought to register all cable operators and to enforce a program code for programs

transmitted or retransmitted by cable operators. The Government introduced a must-

carry stipulation enjoining all cable operators to transmit at least two Doordarshan

channels following the ordinance, the Government implemented an act to implement

The following year a cable law21 with the same provisions was introduced and passed. It

was to be enforced all over the country by local authorities, but it never was

implemented.

The Draft Media policy and the technology related issues

In March 1996 a parliamentary committee22 had produced a draft media policy

document. India's Parliament has consistently had a major voice in the public debate on

media issues. A subcommittee of the Consultative Committee of the Ministry of

Information and Broadcasting produced a working paper which so far has not been

formally adopted as the country's media policy. The objectives of media policy,

20The Cable Television Networks (Regulation) Ordinance,199521The Cable Television Networks (Regulation) Act, 1995.22Ram Vilas Paswan Consultative Committee On National Media Policy ,1996

15

according to this subcommittee, were the following: not to permit growth of monopoly in

any media; to project the developmental needs and social, cultural, and economic

aspirations of the people, particularly in the rural areas which constitute the bulk of the

population; to strengthen, preserve, and promote democratic traditions, culture and

values, national integration, and scientific temper; and to promote and strengthen a

sense of national integrity built on secularism, sociocultural pluralism, and linguistic

diversities.

Other goals were also to facilitate greater access to information, education, and

entertainment - in that order - to all sections of the people; to enable development in the

wake of challenges thrown up by rapid technology; to provide wider choice to people in

matters of information and entertainment; to act ascatalysts for social change; and to

ensure broadly that discrimination based on gender, religion, caste, and language is not

directly or indirectly practiced or promoted and that portrayal of any section of the

society is not done in a derogatory manner

The only sentiments in the above which have not been repeatedly asserted by laws and

committee reports over the years were those which expressed the resolve not to permit

growth of monopoly in any media and to enable development in the wake of challenges

thrown up by rapid changes in technology.

On the specific subject of broadcasting, the subcommittee recommended setting up a

regulatory body as an autonomous authority to oversee both public and private

telecasting and broadcasting. The authority would also need to regulate transmission

frequencies.

The subcommittee stressed that no recourse should be taken by the Government to

dilute the provisions of the Prasar Bharati Act, and it added that there was a need to

bring foreign satellite channels within the ambit of such a regulatory body. It also

suggested the creation of a mechanism redressing public grievances.

The subcommittee took the stand that the Indian private sector, state government,

NGOs, and local government should all be allowed to enter the field of broadcasting and

telecasting. It expressed itself in favor of cross-media ownership restrictions. It took the

16

unambiguous stand that direct or indirect foreign equity participation in companies

entering the field of private broadcasting should not be permitted.

CAS, DTH and the Comprehensive Broadcast Bill

While the Rupert Murdoch owned Star TV, planned to bring in the Direct To Home

services to India, the Central Government without any policy on the same and lack of

technology on its part to counter the same, had moved to strike down by bringing in

regulations on the same on the technology front by banning broadcast using the Ku

Band antennae in certain frequencies without licenses. 23

With this, the Government understood that the broadcasting laws in India, needed a

complete relook and thus needed a Comprehensive broadcast bill In the same month,

drafted a note for the Union Cabinet which detailed the basic principles on which a

comprehensive broadcast law for the country was to be based and outlined provisions

of the bill being proposed. It said at the outset that having a broadcast law had become

urgent in view of the impending start of the "much more powerful digital Direct to Home

... services."24 In May 1997, the Broadcast Bill was finally introduced in Parliament.

Different segments of it are derived from the different impetuses for reform mentioned

the constitutional clauses, committee reports, judgments, and policy statements that

have since 1950 shaped the State's approach to broadcasting. While the broad utlook of

the broadcast services and the technological advances in the DTH services have been

widely regulated by the notifications by the Cable Television Amendment Act and the

subsequent rules25, from time to time.

23Sevati Ninan , History Of Indian Broadcasting Reform, 5 Cardozo J. Int'l & Comp. L. 358 199724Ministry Of Info. And Broadcasting, Subject. Broadcasting Law for India (1997).

25Refer To http://mib.nic.in/showcontent.aspx?uid1=0&uid2=47&uid3=122&uid4=0&uid5=0&uid6=0&uid7=0 For the Latest Notifications Related to Broadcast Content, Services and Actions. (Last Accessed On Nov 6,2010)

17

While the work of a Comprehensive Broadcast Organization bill26 started way back in

1997, till date, it has not progressed beyond the introduction of a bill and currently the

working committee has been constituted for the same.27

Radio Licensing – problems and implications

On the radio front, in July 1999, it was announced that private companies registered in

India would be allowed to set up 101 independent FM stations in 40 cities. Of the 148

frequencies identified for 40 centers, 40 have been reserved for educational channels to

be operated by the human resource development ministry without payment of any

license fee [MIB 2002]. The auction of FM frequencies in favor of the open-market lobby

is a perverted interpretation of the Supreme Court judgment. One of the

recommendation was favoring a alternative media practices in the country seem to be

materializing in the near future.28

But the implicit controls on the basis of license costs and the cost of infrastructure and

the serious control on the broadcast of news, even when there has been enough

reasons to decontrol the news broadcast policies and the controls effected in the early

seventies still continues and thus remains a major barrier for free speech and

expression.

26BROADCASTING SERVICES REGULATION BILL, 2006, 2007, Sections 3 Deals With Licensing; Section 4 Deals With Content Code, Chapter 3 Deals With The Broadcasting Authority Of India.27The Hindu Dated December 19,2009 “Centre Sets Up Broadcasting Authority Of India Task Force” 28 Mixed Signals: Radio Broadcasting Policy In India Kumar, Economic And Political Weekly, Vol. 38, No.

22 (May 31 - Jun. 6, 2003), Pp. 2173-2182

18

Judicial Pronouncements and the impact of the same

Broadcasting organization and the departmental rules

While the interaction of broadcasting organization curtailing the right to exhibit movies

on the basis of the content being too critical of the the Delhi High Court ruled

that the fundamental right to freedom of speech on Doordarshan could only be curtailed

by a valid law, not by a departmental rule or instruction. It ordered the organization to

broadcast a film which it had refused to earlier on the ground that it was too critical of

the Government. The case, Cinemart Foundation v. Union of India29, centered on a film

on the Bhopal gas tragedy called "Beyond Genocide" which won a national award, but

which Doordarshan declined to telecast, though a government stipulation required that

all national award winning films be televised.

Following the High Court ruling the Government appealed to the Supreme Court, which

rejected the appeal and observed that Doordarshan being a state-controlled agency

funded by public funds could not deny to the respondent access to the screen except on

valid grounds.

While the morality of the programming content was under review, whether a

Documentary certified 'A' could be shown , the question raised in Director

29AIR1993SC171 , The Court Held “ 24.From The Above Discussion It Follows That Unquestionably The Respondent Had A Right To Convey His Perception Of The Gas Disaster In Bhopal Through The Documentary Film Prepared By Him. This Film Not Only Won The Golden Lotus Award But Was Also Granted The 'U' Certificate By The Censors. ... How Then Can It Be Alleged That It Is Not Fair And Balanced Or Lacks In Moderation And Restraint? It Is Nowhere Stated Which Part Of The Film Lacks Moderation And/Or Restraint Nor Is It Shown How The Film Can Be Described As Not Fair And Balanced. Merely Because It Is Critical Of The State Government, Perhaps Because Of Its Incapacity To Cope With Unprecedented Situation, Is No Reason To Deny Selection And Publication Of The Film. So Also Pendency Of Claims For Compensation Does Not Render The Matter Sub-Judie So As To Shut Out The Entire Film From The Community. To Bring Out The Inadequacy Of The State Effort Or The Indifference Of The Officers, Etc., Cannot Amount To An Attack On Any Political Party If The Criticism Is Genuine And Objective And Made In Good Faith. If The Norm For Appraisal Was The Same As Applied By The Censors While Granting The 'U' Certificate, It Is Difficult To Understand How Doordarshan Could Refuse To Exhibit It. It Is Not That It Was Not Sent For Being Telecast; Soon After The Disaster That One Could Say That It Is Outdated Or Has Lost Relevance. It Is Even Today of Relevance and the Press Has Been Writing, About It Periodically. Doordarshan Being A State Controlled Agency Funded By Public Funds Could Not Have Denied Access To The Screen To The Respondent Except On Valid Grounds.”

19

General,Directorate General of Doordarshan & Ors v. Anand Patwardhan and Ors30

Censorship in Broadcasting

On the basis of having a censor in place for the content broadcast in India, the court

cases were filed alleging the corrupting influences of satellite television on the citizenry,

and in response to one such petition a metropolitan magistrate ordered the Government

to monitor all satellite broadcasts for culturally alien values and morally offensive

depictions.

The results of this monitoring showed some of the private, regional satellite channels in

the south to be the biggest offenders. Another court appeal by a nurses association

resulted in Zee TV being ordered to change the rather salacious depiction of nurses in a

feature film that it had telecast on its movie channel.31

Another metropolitan magistrate declared in an order that television needed to be

actively censored because it was ruining the country's moral fabric. Suddenly, the urge

to regulate foreign television channels was renewed. His rather colorful order argued

that foreign channels operating in India and promoting "the opposite of Indian

culture"had led to Doordarshan competing with such channels on commercial lines,

"thereby bringing cultural

30AIR2006SC3346, The Court held “the respondent has a right to convey his perception on the oppression of women, flawed understanding of manhood and evils of communal violence through the documentary film produced by him. As already noticed, this film has won awards for best investigative film and best film on social issues at the national level. The documentary film has won several awards at the international level as well. The freedom of expression, which is legitimate and constitutionally protected, cannot be held to ransom on a mere fall of a hat. The film in its entirety has a serious message to convey and is relevant in the present context. Doordarshan being a state controlled agency funded by public funds could not have denied access to screen the respondent's documentary except on specified valid grounds. Doordarshan all through the present matter has been displaying a sad reluctance in telecasting this film, which was made almost ten years ago. We can trace a history of doordarshan not telecasting many films in spite of them being award winning films at the national and international level, this can be seen in the case of films like "in memory of friends", "ram ke name" etc. In addition an interesting observation that can be arrived is that doordarshan has been finding flimsy excuses time and again as clear from the facts in not telecasting the documentary film in question every time the film was sought to be aired either at the instance of the respondent or due to the orders of the court. This in our view in highly irrational and is blatant violation of the right guaranteed under article 19(1) (a) of the constitution. 31Sevati Ninan , History Of Indian Broadcasting Reform, 5 Cardozo J. Int'l & Comp. L. 358 1997

20

invasion into the lives of millions of Indians. ' He declared that "the freedom of speech

and expression cannot be permitted to be diluted to stifle expression nor licentiously

enlarged to promote a riot of sensual display."32

The magistrate ruled that both Doordarshan and the private channels would have to

obtain clearance from the Censor Board for every film, serial, or commercially

sponsored advertisement that they aired. And in the event of non-compliance of

directions, police officers of the concerned police station not below the rank of sub-

inspector would have the right to enter any place or studio from which the film or serial

was being exhibited or likely to be exhibited, search and seize the offending material,

and initiate legal proceedings under the relevant laws.

This led to the draft content code regulations from the Cable Television Amendment

rules and the idea of a content code which takes roots from the codes issued during the

Indira Gandhi rule of the Parthasarathi Comittee.

Fundamental right to Broadcast- The airwaves belong to the citizens

In February 1995, the Supreme Court delivered a landmark judgment in Ministry of

Information and Broadcasting v. Cricket Ass'n of Bengal33, which involved the rights of a

cricket association to give telecast rights to an agency of its choice. The Court ruled

that airwaves constitute public property which must be utilized for advancing public

good. In two separate concurring judgments, the Court said the right of free speech

guaranteed by article 19(1)(a) did not include the right to use airwaves which were

public property.

Being public property, it was the duty of the state to see that airwaves were so utilized

as to advance the free speech right of the citizens which was served by ensuring

plurality and diversity of views, opinions, and ideas. This could not be ensured by a

medium controlled by a monopoly, whether the monopoly was of the state or of any

other individual, group, or organization.

32Vimodanand Jha V. State , Unpublished Judgment, Paragraph 2333 Secretary, Ministry Of Info. & Broad. V. Cricket Ass'n Of Bengal (1995) 2 S.C.C. 161.

21

The Court ruled that "[t]he broadcasting media should be under the control of the public

as distinct from Government. This is the command implicit in Article 19(1)(a). It should

be operated by a public statutory corporation or corporations....”

Throughout this judgment, while referring to limitations on the right to have access to

telecasting, the judges referred to the restrictions imposed on free speech by article

19(2), not the 1885 Telegraph Act. About this Act it observed: "The Indian Telegraph

Act, 1885 is totally inadequate to govern an important medium like the radio and

television, i.e., broadcasting media. The Act was intended for an altogether different

purpose when it was enacted."

The Supreme Court's rejection of the notion that the state could have a monopoly on the

use of airwaves suddenly changed the level of debate on broadcasting reform in India

which had largely been confined to the need for autonomy of the state media. Existing

statutory restrictions on public access to broadcasting that were not rooted in article(19)

(2) were rejected by this judgment. The judges argued that a limitation was imposed by

the nature of public property involved, namely, airwaves or frequencies. "[W]avelengths

for broadcasting were limited[,]"' it declared. This was a quaint observation in an

otherwise forward-looking judgment. It ignored completely the existence of cable-

delivered satellite television, particularly digitally compressed television signals which

did not suffer from any limitation on the number of channels that could be delivered.

Broadcast of Sports Signals

In Citizen,Consumer and Civic Action Group v. Prasar Bharati34 and others , where the

plea was for transmission of the India Pakistan cricket series , the court held that though

there was not any right vested to right to receive the transmission , considering the

citizens directed the private broadcaster to share the signals with the government run

Prasar Bharati. While the intent was provided for that citizens must be able to see the

cricket matches, the question of sharing of signals of important sporting events were

subesequently questioned in the courts quite too often, the Government went ahead in

creating the law35 for the same , therby restricting the right to work and occupation as

34MANU/TN/1696/200435 Sports Broadcasting Signals (Mandatory Sharing With Prasar Bharati) Act, 2007,

22

such. While the concept of forced sharing of signals has brought about a huge deficit in

operations of certain broadcasters, the right to air advertisements which are a

substantial part of income, is also being encroached by the compulsion to provide the

signals without the advertisements, is clearly a violation of 19(1)g and does not seem a

reasonable in this regard.36

36Section 3 Of The Said Act Deals With Mandatory Sharing Without Advertisements sports Broadcasting Signals (Mandatory Sharing With Prasar Bharati) Act, 2007,

23

Protection of the Broadcast content -Broadcast Copyright

The Copyright Act ,1956 provides “broadcast reproduction right” 37so as to protect the

content that has been transmitted. While the judicial activity on the broadcast

reproduction right has been quite lesser and the distinction between broadcast

reproduction right and that of un-authorized broadcast and use of signals which comes

under the jurisdiction of TRAI, the confusion still remains in the minds of broadcasters.

In the case of Espn-Star Sports v. Global Television Company38, where the issue of

illegal linkup of the broadcast by the plaintiff's transmission was contended and the

specific limit of fair use of broadcast of live signals , a limit of 8 minutes was set.

In the case of Sun Television Networks v. Royal Cable Vision39, while the jurisdiction of

the TDSAT for theft of television signals was distinguished with broadcasting

reproduction right. The definition of broadcast in the Copyright Act,1956 includes re-

broadcast , but for the broadcaster , the re-broadcast of any program, provides him with

rights in perpetuity, which does not come in purview of the Act or the rights affirmed as

such40.

37Chapter VIII Of The Indian Copyright Act, 1956 Deals With The Broadcast Reproduction Right. 382008 (38) PTC 477 (Del)39Unreported Case O.A. No.955 Of 2008(Madras HC)40Section 2(Did) Of The Copyright Act Reads As “ (Dd) 10 "Broadcast" Means 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 Includes A Re-Broadcast;] And Communication To Public Defined As “(Ff) 12 “Communication To The Public" Means Making Any Work Available For Being Seen Or Heard Or Otherwise Enjoyed By The Public Directly Or By Any Means Of Display Or Diffusion Other Than By Issuing Copies Of Such Work Regardless Of Whether Any Member Of The Public Actually Sees, Hears Or Otherwise Enjoys The Work So Made Available.” Read With Section 37 Of The Act, Where There Are No Specific Provision To Re-broadcast Is Not Specified.

24

Convergence of technologies and the lack of laws to deal with the same

While the Internet has found favour as a medium of broadcast, the Indian IT act ,

defines and provides a fair idea of the necessary requirements for an intermediary not

to be liable in the context , that the streaming of the video takes place through a server

and hence it would be disturbing to see how the section 7941 and 8142 of the Indian IT

Act,2005 and the Copyright Act ,1956 converge. If the alleged infringing material has

been found to be on the server of an intermediary, then the proviso to S.81 overrides

S.79 is that the safe harbour provision envisaged in S.79 will not be available to an

intermediary, if that intermediary is otherwise found liable under the Indian Copyright

Act.

41Section 79 Of The Indian IT Act, 2005 Reads As “79 Exemption From Liability Of Intermediary In Certain Cases (1) Notwithstanding Anything Contained In Any Law For The Time Being In Force But Subject To

The Provisions Of Sub-Sections (2) And (3), An Intermediary Shall Not Be Liable For Any Third Party Information, Data, Or Communication Link Made Hosted By Him.

(2) The Provisions Of Sub-Section (1) Shall Apply If-(A) The Function Of The Intermediary Is Limited To Providing Access To A Communication

System Over Which Information Made Available By Third Parties Is Transmitted Or Temporarily Stored; Or

(B) The Intermediary Does Not-(I) Initiate The Transmission,(Ii) Select The Receiver Of The Transmission, And(Iii) Select Or Modify The Information Contained In The Transmission

(C) The Intermediary Observes Due Diligence While Discharging His Duties Under This Act And Also Observes Such Other Guidelines As The Central Government May Prescribe In This Behalf (Inserted Vide ITAA 2008)

(3) The Provisions Of Sub-Section (1) Shall Not Apply If-(A) The Intermediary Has Conspired Or Abetted Or Aided Or Induced Whether By Threats

Or Promise Or Otherwise In The Commission Of The Unlawful Act (B) Upon Receiving Actual Knowledge, Or On Being Notified By The Appropriate

Government Or Its Agency That Any Information, Data Or Communication Link Residing In Or Connected To A Computer Resource Controlled By The Intermediary Is Being Used To Commit The Unlawful Act, The Intermediary Fails To Expeditiously Remove Or Disable Access To That Material On That Resource Without Vitiating The Evidence In Any Manner.

Explanation: - For The Purpose Of This Section, The Expression ”Third Party Information" Means Any Information Dealt With By An Intermediary In His Capacity As An Intermediary.”

42S.81 Of The IT Act States That: “The Provisions Of This Act [ITS Act] Shall Have Effect Notwithstanding Anything Inconsistent Therewith Contained In Any Other Law For The Time Being In Force. Provided That Nothing Contained In This Act Shall Restrict Any Person From Exercising Any Rights Conferred Under The Copyright Act, 1957 Or The Patents Act, 1970."

25

That is to say that if an intermediary is found liable under any of the provisions of the

Copyright Act, then irrespective of the safe harbour provisions under S.79 of the IT Act,

the intermediary cannot claim immunity and will be held liable. Secondary liability is

generally found in S.51(a)(ii)43 and S.6344 of the Copyright Act. S.51(a)(ii) uses the

expression “reasonable ground for believing” and being “aware”. S.63 of the Act uses

the phrase “knowingly infringes or abets the infringement of”. At the same time, it is

43Section 51 Of The Copyright Act, 1956 Reads As “ 51. When Copyright Infringed. -Copyright In A Work Shall Be Deemed To Be Infringed-(A) When Any Person, Without A License Granted By The Owner Of The Copyright Or The

Registrar Of Copyrights Under This Act Or In Contravention Of The Conditions Of A License So Granted Or Of Any Condition Imposed By A Competent Authority Under This Act-

(I) Does Anything, The Exclusive Right To Do Which Is By This Act Conferred Upon The Owner Of The Copyright, Or (Ii) Permits For Profit Any Place To Be Used For The Communication Of The Work To The Public Where Such Communication Constitutes An Infringement Of The Copyright In The Work, Unless He Was Not Aware And Had No Reasonable Ground For Believing That Such Communication To The Public Would Be An Infringement Of Copyright; Or (B) When Any Person-

(I) Makes For Sale Or Hire, Or Sells Or Lets For Hire, Or By Way Of Trade Displays Or Offers For Sale Or Hire, Or (Ii) Distributes Either For The Purpose Of Trade Or To Such An Extent As To Affect Prejudicially The Owner Of The Copyright, Or (Iii) By Way Of Trade Exhibits In Public, Or

(Iv) Imports ***** Into India, Any Infringing Copies Of The Work Provided That Nothing In Sub-Clause (Iv) Shall Apply To The Import Of One Copy Of Any Work For The Private And Domestic Use Of The Importer.

Explanation.- For The Purposes Of This Section, The Reproduction Of A Literary, Dramatic, Musical Or

Artistic Work In The Form Of A Cinematograph Film Shall Be Deemed To Be An "Infringing Copy".

44Section 63 Of The Copyright Act,1956, Reads As 63. Offence of Infringement of Copyright or Other Rights Conferred By This Act. Any Person

Who Knowingly Infringes Or Abets The Infringement Of-

(A) The Copyright In A Work, Or

(B) Any Other Right Conferred By This Act,[Except The Right Conferred By Section 53A]

[Shall Be Punishable With Imprisonment For A Term Which Shall Not Be Less Than Six Months But Which May Extend To Three Years And With Fine Which Shall Not Be Less Than Fifty Thousand Rupees But Which May Extend To Two Laky Rupees :

Provided That [Where The Infringement Has Not Been Made For Gain In The Course Of Trade Or Business] The Court May, For Adequate And Special Reasons To Be Mentioned In The

26

important to look at the phraseology in S.79(3) of the IT Act, which uses the expression

“actual knowledge”. S.79(3) carves out exceptions to S.79(1), essentially outlining

situations in which the safe harbour provided for in S.79 will not be available to the

intermediary.

It is interesting to see whether it is possible to equate 'actual knowledge' under S.79(3)

with being 'aware' and having 'reasonable ground for believing'. In that case,

establishing liability under the Copyright Act by showing that the intermediary had

'reasonable grounds for believing' or was 'aware' would have the effect of making out

the exception to S.79(1). In that case, since the S.79(3) exception is demonstrated, it is

irrelevant whether S. 81 can prevail over S.79, that is to say, whether rights conferred

under the Copyright Act would be rendered inapplicable with regard to an intermediary,

since the safe harbour exemption would not be available to the intermediary in any

case, in view of S.79(3).

Of course, one must keep in mind that it is possible to hold an intermediary liable even

when there is no knowledge attributable to it. An intermediary may also be held liable for

direct infringement where they engage in infringing activity themselves. Primary liability

flows from the principle of strict liability, for example where an infringement of the

exclusive reproduction right of the copyright owner, gives rise to liability irrespective of

whether the alleged infringer had knowledge of the breach or not. This is particularly

relevant for an intermediary since 'transient copying', which is generally an automated

process may fall within the net of 'reproduction', and the defence of 'lack of knowledge'

would fall through completely. The other possibility is that 'caching activities' such as

duplicating certain images, videos, links or entire web pages on its servers, in order to

provide quicker access to such information may also fall within the ambit of cases where

there has been no 'communication to the public', but the reproduction right of the owner

has been encroached upon.

Judgment, Impose A Sentence Of Imprisonment For A Term Of Less Than Six Months Or A Fine Of Less Than Fifty Thousand Rupees.]

Explanation.-Construction Of A Building Or Other Structure Which Infringes Or Which, If Completed, Would Infringe the Copyright in Some Other Work Shall Not Be an Offence under This Section.”

27

With the advent of new technology and the time taken to trace the sources, it even

becomes very difficult to source and stop or notify infringement action which has taken

various ways and methods as a whole.

28

Conclusion

Despite being a vibrant and a young democracy, India's media policies have always

read as “pogrom “ documents and laws rather than working towards a better and

responsible media as a whole. While the Government , has lost a considerable share in

its broadcasting revenues and being in the brink of bankruptcy, and holding out a strict

control, the autonomy and the functioning of the Prasar Bharati Corporation can be

questioned to a greater level.

India needs to adapt a self regulatory mechanism and evolve laws which does not

reflect the indoctrination of government and serious lack of criticism and short sighted

policy making has made it difficult for the survival of small and medium sized

broadcasting companies and there has been a wipe out of public broadcasting rather

the content becoming inappropriate and unsuitable for most the audience.

Perhaps , a convergent law and a convergence council will be able to reach out to the

needs of the modern broadcasting in India.