Public versus private broadcast

By Manisha Singh Nair, Lex Orbis IP Practice
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Can the viewing of a television channel by a few select clients be considered as a communication to the public and if so, would it be an infringement of copyright?

In Garware Plastics and Polyester Ltd and Ors v Telelink and Ors the Bombay High Court laid down three factors to determine what constitutes a broadcast to the public:

• The character of the audience: Whether it is a purely domestic or private audience or whether it contains a portion of the public.

• The relationship between the copyright owner and the audience: Can the audience be described as the copyright owner’s public or part of his public? If so, the copyright owner would be exercising his statutory right in performing before that audience. If anyone else performs the copyright owner’s work before that audience without the owner’s consent, then that would constitute infringement.

• The impact of the performance on the copyright owner’s earnings: Does it deprive him of earnings?

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Manisha Singh Nair is a partner at Lex Orbis IP, a New Delhi-based intellectual property practice.

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