Analyzing the interface: media and copyright laws

By Abhai Pandey, LexOrbis
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The emerging face of copyright law and its impact on the media and entertainment industry – and in turn the influence of the media on copyright laws – gives rise to an interesting scene of activity. The burgeoning entertainment industry has led to the advancement of copyright laws and enforcement by rights holders for an equitable endurance. Considering the magnitude of media and entertainment enterprises, losses accruing due to copyright infringements are generally colossal.

A copyright is an exclusive right to reproduce, communicate, issue copies, sell or give for hire to the public, an original piece of work.

Abhai Pandey, Lex Orbis IP Practice
Abhai Pandey
Lex Orbis IP Practice

Copyright law tries to provide a balance between the interests of musicians, authors, filmmakers, etc., and those who want to access their original works. In the case of sound recordings or films, this access is usually provided by broadcasting organizations or television channels, which procure a licence from the copyright owner to transmit the work to the public.

The commercial angle behind the marketing of cinematographic work cannot be ignored. In order to better reap the benefits of commercialization, copyright societies function as collective managers of copyright and individuals interested in communicating specific works to the public. They grant licences with respect to certain rights, collect fees in pursuance of such licences and distribute such fees among owners of rights after making deductions for expenses.

The concept of “communication to public” is central to this commercial licensing and to broadcasting rights in particular. It is embodied in section 2(ff) of the Copyright Act, 1957. The issue as to what constitutes “communication to public” depends on the particular act of dissemination. While the exhibition of any copyrighted work in a closed circle of family and friends, or personal viewing for that matter, is outside the purview of infringement, material broadcast on a television channel or any other media, to an audience for commercial purposes is classified as “communication to public”.

The case of Super Cassette Industries v Nirula’s Cornerhouse is relevant here. As the copyright holder of an array of literary and musical works, sound recordings, music videos and cinematographic videos, the plaintiff also licenses the right to exploit its works. The defendants are engaged in the business of hotels and restaurants.

Super Cassette Industries alleged that Nirula’s Cornerhouse infringed its copyright in musical works by transmitting them to its guests in their hotel rooms without a proper licence, asserting thereby that such usage would amount to public performance/communication of the work – the exclusive rights to which were granted only to the copyright holder or a duly licensed person under the act.

Nirula’s, on the other hand, argued that it was merely receiving content from the cable operator which was being relayed on individual screens in the hotel rooms. Since the legality of the broadcast made by the cable operator was not in question, an allegation of infringement could not be made.

The issue here was whether communicating the contents broadcasted by a cable operator via a television channel, could be classified as an infringement of the copyright.

The Delhi High Court decided in favour of Super Cassette Industries, stating that guests in the defendant’s hotel rooms would amount to a distinct public audience, since the defendant and not the cable operator, provides the service directly to customers. The correct position, however, is that there is a distinction between the relay of cinematographic content by a cable operator, and a subscriber who happens to be a commercial establishment. The broadcaster’s contract lies with the cable operator and not with the commercial establishment or its target audience.

The broadcaster, after taking a licence from the copyright owner, telecasts the signals to the cable operator, who in turn disseminates the telecast to subscribers. As such, the fee collected from a commercial establishment is greater because of the element of communication to public.

In this chain of events, the liability rests on the broadcaster to verify the licence obtained, as the money generated from the commercial exploitation of the licence is paid to the copyright society or the copyright holder.

Any infringement of copyright committed by a commercial establishment must be viewed in light of the principle of privity of contract between the cable network provider and the channel.

Since Nirula’s was not party to the contract between the cable operator and the broadcaster, or the channel as such, no breach could be said to have been committed by the defendant in transmitting the work to its guests or clients within its premises, once authorization had been granted by the cable service provider.

The converging points of interest between the various players of this case, is the communication of work to public. These different yet allied interests are served by specific provisions of the Copyright Act, which should be read with keen perception and fair interpretation.

Abhai Pandey is a lawyer with LEX ORBIS IP Practice, a law firm specializing in intellectual property issues.

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