BROADCAST REPRODUCTION RIGHT vis-à-vis COPYRIGHT ACT
WHAT IS A BROADCASTERS RIGHT
As the producer of the event, the Copyright Owner is the owner of all rights and revenue opportunities arising out of the organisation, creation and development of the event, including the media and broadcasting rights related thereto. In terms of the Agreement executed (varying on case to case basis) the authorization is granted in relation to the events to the second party. Such exclusive rights include the right to broadcast, communicate, make available and / or authorize the broadcast, transmission, communication or making available to the public..
BROADCAST REPRODUCTION RIGHTS
1. Thus the second party being vested with the exclusive right to broadcast the event would depending on the nature of contract / authorization granted may extend to Broadcast Reproduction Rights in relation to the Event. In that situation, the Broadcaster is therefore the owner of the Broadcast Reproduction Rights as provided under Section 37 of the Copyright Act, 1957, and has the following exclusive rights thereof:
37. Broadcast reproduction right.
(1) Every broadcasting organisation shall have a special right to be known as “broadcast reproduction right” in respect of its broadcasts.
(2) The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made.
(3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof,—
(a) Re-broadcasts 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 for such rental, any such sound recording or visual recording referred to in clause (c) or clause (d),
shall, subject to the provisions of section 39, be deemed to have infringed the broadcast reproduction right.
“Broadcast” has been defined under Sec. 2(dd) of the Copyright Act, 1957 as follows:
(dd) “broadcast” means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast;
Further, “communication to the public” has been defined under Sec.2 (ff) of the Copyright Act, 1957 as follows:
(ff) “communication to the public” means making any work or performance 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 physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available.
Thus, no entity, without the authorization of the Broadcaster, is entitled to exploit the rights granted under Section 37 of the Copyright Act, 1957.
They are the first owner of copyright in respect of such broadcasts and that constitutes cinematograph films and hence, they are entitled to protection under Section 14 (d) of the Copyright Act, 1957.
BROADCASTER RIGHT INDEPENDENT & STAND ALONE
A copyright in a cinematograph film is distinct, independent and separate from broadcast reproduction rights in the broadcast of the cinematograph film. While the copyright in the cinematograph film is owned by the Broadcaster in its capacity as the exclusive licensee Owner of Copyright, the broadcast reproduction rights in the live broadcast of the cinematograph film of the Event would be owned by the broadcasting organisation which broadcasts the Event. Hence such rights are governed by Section 37 of the Copyright Act.
In this matter, section 18 of the Copyright Act needs to be discussed separately in light of the provisions of the contract executed between the parties.