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The live broadcasting signals of sporting events of national importance, especially cricket, cannot be re-transmitted by Prasar Bharati on networks other than its own terrestrial and Direct-to-Home (DTH) networks, the Supreme Court has ruled.
This would mean that channels like Star India and ESPN would not be compelled to share their feed with private cable television networks. This is because the channels had paid huge sums to secure exclusive telecasting rights to top-billed cricketing events. Therefore, compelling them to share this feed with cable TV operators free of cost would entail gigantic losses in revenue and also violate the Media Rights Agreement with the Board of Control for Cricket in India (BCCI).
The apex court was hearing a batch of appeals against the Delhi High Court’s February 4, 2015, Division Bench judgement in the case of BCCI & Another v Prasar Bharati Broadcasting Corporation of India & Anr.
The Crux of the Dispute
Under Section 3 of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 (Sports Act), STAR and ESPN are obliged to share the live broadcasting signals of sporting events of national importance with Prasar Bharati (which owns the erstwhile Doordarshan’s channels/networks) for re-transmission of the same through its terrestrial and Direct-to-Home networks.
What STAR and ESPN challenged is Prasar Bharti’s re-telecast of these live signals to millions of viewers who may not necessarily be linked to the Prasar Bharati’s terrestrial and DTH networks, but are subscribed to other cable operators and DTH service providers.
Such re-telecast of signals is mandated by Section 8 of the Cable Television Networks (Regulation) Act, 1995 (Cable Act) which requires cable TV operators to mandatorily carry in their cable service channels that may be notified by the Central Government .
Because of this arrangement, cable TV operators do not have to subscribe to specific sports channels of STAR and ESPN as they are getting the live feed of cricketing events free of cost. The legality of this arrangement was challenged before both the High Court and the apex court.
Arguments and Counterarguments
A battery of senior counsel appeared for the parties.
Mukul Rohatgi (former Attorney General) appeared for the Union of India and Prasar Bharati. Senior Advocates Harish Salve, P. Chidambaram, Sanjay Hegde, A.M. Singhvi, Sudhir Chandra and Gopal Jain appeared for Star India Private Limited, who were briefed by Karanjawala & Co Partner Ruby Singh Ahuja along with Associate Aakanksha Munjhal and Sai Krishna Rajagopal from Saikrishna Associates.
Dr. Rajeev Dhavan appeared for Home Cable Network Pvt. Ltd. and Sopan Foundation and Senior Advocate Amit Sibal apppeared for the BCCI.
Prasar Bharati contended that both the Prasar Bharati Act and the Sports Act were enacted so that the maximum number of citizens get access to news, information and sporting events of national importance on a free-to-air basis.
It is in the above light that the provisions of Section 3 of the Sports Act, 2007 and Section 8 of the Cable Act, 1995 have to be construed. Thus, these two provisions should not be read and understood to be confined to re-transmission of the live signals compulsorily shared with Prasar Bharati by the content owner only on the terrestrial and DTH networks of the former.
It was also contended that the possible loss of revenue arising to the content rights owners/holder due to the mandatory requirement of sharing live feeds with the Prasar Bharati has been adequately taken care of by the scheme of arrangement of revenue contained in sub-section (2) of Section 3 of the Sports Act.
In response, STAR and ESPN contended that Section 3 of the Sports Act is expropriatory in nature and hence must be strictly construed to allow re-transmissions to Prasar Bharati’s subscribers only, not to those of other cable TV operators or DTH service providers. Any unwarranted extension of interpretation would amount to an invasion of their copyright/broadcasting rights.
On behalf of BCCI, it was specifically argued that any extended meaning to Section 3 of the Sports Act, 2007 beyond what flows from its plain language would have the effect of infringing its fundamental right of the freedom of speech and expression of under Article 19(1)(a) of the Constitution. Several precedents were cited to contend that the right under Article 19(1)(a) of the Constitution would extend to receipt of information also.
The Court’s Decision
The Court accepted the sports channels’ contention that Section 3 is expropriatory in nature since it curtails or abridges the rights of a content rights owner or holder and television or radio broadcasting service provider, hence it has to be interpreted very strictly. The language of Section 3 does not envisage any recognition of the requirement stipulated in Section 8 of the Cable Act.
“…the plain language of the said provision i.e. Section 3 of the Sports Act, 2007 makes it clear that the obligation to share cast on the content rights owner or holder, etc. with Prasar Bharati is to enable Prasar Bharati to transmit the same on “its terrestrial and DTH networks”.” (emphasis supplied).”
There is no legislative intent to mandate that the operation of Section 3 of the Sports Act would be governed by the provisions and stipulations of Section 8 of the Cable Act. Since the legislature has not specified which channels are to be mandatorily carried by cable TV operators, it is always open to the central government to denotify DD1 (National) from the notified channels in the notification under Section 8 of the Cable Act.
“Surely, the effect and operation of Section 3 of the Sports Act cannot be left to be decided on the basis of the discretion of the Central Government to include and subsequently exclude or not to include at all the DD1 (National) channel in a notification to be published under Section 8 of the Cable Act, 1995. Insofar as DTH network of private operators is concerned, the same does not even come under the operation of a Cable Operator.”
The Court, therefore, concluded that the live feed received by Prasar Bharati from content rights owners or holders such as STAR and ESPN is only for the purpose of re-transmission on its own terrestrial and DTH networks and not to cable TV operators. The High Court’s 4 February decision stood affirmed.