Seemantani Sharma, International Copyright Lawyer, Asia Pacific Broadcasting Union
White Paper Highlights:
• Recently concluded IPL season, it was discovered that more than 1, 700 unique URLs were telecasting IPL illegally via 211 unique servers, 122 pirate streams, 51 hosting sites, and 23 infrastructure providers.
• The advent of live streaming apps have also led to rampant piracy of sports broadcasts worldwide, including India.
• During 2010-2011, India had the highest rates of broadcast piracy in the Asia-Pacific region, with total accumulated losses of $1.4 billion U.S. Dollars.
• Despite these alarming statistics, India’s attitude towards broadcast piracy has been lackadaisical. For instance, India has recurrently opposed the inclusion of online signals in the proposed treaty for the protection of broadcasting organizations rights (Broadcasters Treaty) despite the fact that a majority of the broadcast piracy – especially sports broadcast piracy – takes place online.
Sports Broadcast Piracy in India
• The increasing online consumption of sports in India, coupled with the availability of affordable pirate technologies and online streaming devices such as Meerkat and Periscope, has led to an ever growing menace of sports broadcast piracy.
• The last study conducted by the Cable & Satellite Broadcasting Association of Asia (CASBAA) quantified the overall losses due to broadcast piracy at $1.4 billion U.S. Dollars for the 2010-2011 year.
• Projected losses due to broadcast and movie piracy will touch up to $3.1 billion U.S. Dollars by 2022, making India the largest victim of piracy in the world.
• It is because of these alarming statistics that at the 24th Standing Committee on Copyright and Related Rights (SCCR), the Indian delegation conceded that, with its network of more than 800 television channels, it was deeply concerned about broadcast piracy. Despite this, India has yet to endorse a futuristic Broadcasters Treaty, which is extremely important for curtailing sports broadcast piracy.
• There are three primary ways in which online sports broadcast piracy can take place: (1) live streams made available via peer-to-peer television services or streamed directly from a web server; (2) recorded versions of events uploaded to file-sharing networks such as bittorrent or eDonkey; and (3) highlights placed on user-generated-content (UGC) sites such as YouTube or Webcast On.
• In India, the most common form of live sports broadcast piracy is via live streaming from web servers, and by uploading the recorded versions of sports events to illegal file-sharing networks such as Luckyshare, Bitshare, Terafile, Freakshare, and Letitbit.
Copyright Protection For Live Sports Telecasts
• In ESPN Star Sports v. Global Broadcast News Ltd., the Delhi High Court held that both copyright and broadcast reproduction right under Section 37 of the Indian Copyright Act (the Act) were independent of each other. In this case, ESPN, the exclusive broadcaster for various cricket matches from December 26, 2007 until March 8, 2008, sought an injunction against several broadcasters to prevent them from broadcasting the footage of the matches on grounds that it violated its broadcast reproduction right under Section 37 of the Act.24 The Court, while recognizing the broadcast reproduction right of broadcasters, held:
"It is thus evident that there could be both copyright and broadcasting reproduction right which could separately co-exist. As an example, the copyright of cinematography film being broadcast on a satellite channel vests with the producer of the film whereas the broadcast reproduction right for the same vests with the broadcaster channel itself. The recording of such movie and unauthorized re-telecast by cable operators could thus result in violation of two separate rights. The first being the copyright which vests with the producer and second the broadcast reproduction right which vests with the broadcaster channel. These rights may vest with two different persons or even with the single person which is evident from the Act."
• Ten Sports, which was the exclusive broadcaster for the 2002 FIFA World Cup, the Court recognized the menace of cable piracy and held that it was not powerless to award John Doe Orders called the “Ashok Kumar Orders” against unnamed defendants for protecting the broadcast reproduction right of a broadcasting organization under Section 37 of the Act.
• In the case, Dep’t of Elecs. & Info. Tech. v. Star India Pvt. Ltd., the Delhi High Court awarded an ex parte injunction against seventeen defendants, and restrained them from unauthorized online streaming of the India-Australia Test match series (the exclusive broadcast rights were held by Star India). The Court initially passed an order blocking seventy-three URLs instead of the entirety of each website that engaged in illegally streaming the matches. But, it revised its order in July 2016 by allowing the blocking of entire websites rather than just URLs on grounds that it was relatively easy to create new infringing links within the same website.
• In the US, in the Baltimore Orioles v. Major League Baseball Players Ass’n case, which deals with copyright protection for live sports telecasts whether Major League Baseball clubs owned exclusive rights to the televised performances that were made during the game. The United States Court of Appeals for the Seventh Circuit held that the telecast of a baseball game was a copyrightable subject matter, all rights related to which were presumed to be held by the baseball clubs. It recognized the creativity inherent in live sports telecasts and held: “The many decisions that must be made during the broadcast of a baseball game concerning camera angles, types of shots, the use of instant replays and split screens, and shot selection similarly supply the creativity required for the copyrightability of the telecasts.”
• The seminal English case on copyright protection for live sports telecasts is Union of European Football Association (UEFA) v. Briscomb. In this case, UEFA, the governing body for football in Europe, along with its licensed broadcasters, “British Sky Broadcasting Group PLC” (BskB) and “British Sky Broadcasting Limited” (Sky Plc), sued three people for infringing on its copyright in the UEFA Champions League, the broadcast rights for which vested with channels such as BskB and Sky Plc. Justice Lindsay of the High Court of Chancery held that the plaintiffs owned the copyright in the live broadcasts of the UEFA Champions League and in the ancillary works.63 Therefore, it issued a preliminary injunction prohibiting the defendants from streaming UEFA Champions League without authorization.
• The issue of copyright protection for live sports telecast was considered for the first time by the Court of Justice for the European Union (CJEU) in the joined cases of Football Ass’n Premier League v. QC Leisure and Karen Murphy v. Media Protection Services Limited and the CJEU held that copyright protection vested in sports telecasts, which could be asserted either by the broadcaster or by the authors of the works concerned.
• Major international jurisdictions such as U.S., U.K., and E.U. favor granting copyright protection to live sports telecasts provided they meet the creativity threshold.
Why India Should Protect Live Sports Telecasts
• India should recognize live sports telecasts as copyrightable subject matter in order to be consistent with international practices.
• Answer to the question why should India protect live online sports piracy lies in theories of neighboring rights, which mandates that the skill, effort, and creativity expended by broadcasters in the packaging, assembling, and scheduling of programs should be duly awarded. The technical skills required for producing a successful live sport telecast are strikingly similar to those required for making a cinematographic film.
• In the absence of copyright protection, broadcasters will have no incentive to invest technical skills and human resources in producing the live footage of sports events. This is especially so given the exorbitant prices of sports broadcast rights.
• Even though there are no recent statistics, it is reasonable to assume that while a substantial proportion of audiences legitimately access digital content, there may be a sizeable proportion that resorts to unauthorized live streaming of sports events.
• In a pioneering World Bank study on “Intellectual Property and Development,” economist Keith Maskus found that increased copyright protection was likely to be beneficial for Lebanon’s local creative industries such as software applications, publishing, and film production, and advertising. This study can be relevant to India because India and Lebanon are more or less on similar levels of economic development.
• The rationale for proposing a copyright protection is to secure the investment incurred by broadcasters in producing the live telecast, provided it is sufficiently creative and original.
• Revenue generated by traditional broadcasters is directly proportionate to their ability to invest in the development and procurement of quality content, a harbinger of every informed society.
• India has yet to realize the potential of sports as a full-fledged commercial industry even though it is estimated that the Indian sports industry has a potential to touch 4 billion U.S. dollars in coming years.
• For the sports industry to grow and flourish, it is important that the rights of the different stakeholders, such as the sports leagues and broadcasters, are adequately protected. In India which is a cricket frenzy nation it is extremely important that the broadcast rights of sports broadcasters are adequately protected.
• Section 37 of the Act grants neighboring rights protection to broadcasting organizations in the form of the broadcast reproduction right. However, because the Act does not define the term “broadcasting organization,” it is difficult to say whether pure webcasting organizations (or internet broadcasters), such as Netflix, Facebook Live, Periscope and other similar services that solely broadcast content online, will be able to exercise the broadcast reproduction right.
• With respect to Section 31(D) of the Act, the Department of Industrial Policy & Promotion (DIPP) clarified that pure internet broadcasters (webcasters) are included within the definition of broadcasting organization. This interpretation cannot be replicated to Section 37 of the Act because DIPP’s rationale for covering pure webcasters within the ambit of broadcasting organization was based upon an interpretation of the phrase “communication to the public.”
• Per its notification, “any broadcasting organization desirous of communicating to public” may not be restrictively interpreted to include only radio and television broadcasting. This was based upon a combined reading of the definition of “broadcast” and “communication to public.” However, Section 37 of the Act merely states that every broadcasting organization will have a special right known as the broadcast reproduction right with respect to its broadcasts.
• Therefore, unlike Section 31(D), it has no relation whatsoever to the definition of “communication to public.” In this situation, pure webcasters and sports organizers have simply no recourse available to tackle online piracy unless the Indian courts are flexible enough to include webcasters within the ambit of broadcasting organization.
• It’s proposed that the Act should be amended to define webcasting organizations within the ambit of the term “broadcasting organization” or a separate webcast reproduction right on the lines of the broadcast reproduction right should be granted to webcasters.
Definition of Broadcasting Organisations:
• One possible way to tackle this situation is to add the definition of “broadcasting organization” under the Act to make it more technologically relevant. “Broadcasting organization means a legal entity that takes the initiative and has the editorial responsibility for broadcasting including the assembling and the scheduling of the programme carrying signal. An entity that exclusively delivers its programme carrying signal by means of a computer network shall also be a broadcasting organization.”
• From a purely regulatory perspective, some webcasters may oppose this definition as they may not want to be regulated in the same way as broadcasters. A potential strategy to tackle this is to clarify somewhere in the Act or in the broadcast regulation, that the two are independent of each other. Alternatively, pure webcasters can be granted a right similar to the broadcast reproduction right.
• The Delhi High Court’s decision in the ESPN Star Sports makes it clear that live sports telecasts could be protected as cinematographic films, independent of the broadcast reproduction right. The same rationale would be applicable to live sports webcasts because a webcast is nothing but an audio-visual recording that is transmitted (broadcasted) online.
• While broadcasters can take refuge of the broadcast reproduction right in the case of live webcast piracy, the current lacuna in law leaves pure webcasters remediless in a similar situation. To create a level playing field between webcasters and broadcasters, it is important that webcasts, irrespective of whether they are transmitted by a webcaster or a broadcaster, are sufficiently protected.
• Safeguarding the rights of webcasters by amending the Act could be complex and time-consuming. The first option requires a broader level policy analysis while the second option entails amendments to several provisions of the Act. In this situation, the best recourse would be for courts to consider live sports webcasts, which are sufficiently creative and original as cinematographic films. This is also in sync with international practices that recognize live sports telecasts as copyrightable subject matter.
• At a time when broadcasters operate in a borderless word, relying solely on domestic law is inappropriate. The Standing Committee of Copyright and Related Rights (SCCR) has been working on an international treaty to update the rights of broadcasting organizations as envisaged under the International Convention for the Rights of Performers, Phonogram Producers, and Broadcasting Organizations (Rome Convention) since 1997.
• India’s opposition to the inclusion of online transmissions in the Broadcasters Treaty based on an interpretation of the Mandate is erroneous. This is because traditional Indian broadcasters relay their streams over the internet, which are often subject to piracy. It is not uncommon for Indian broadcasters to make a catch-up service of a live sports event available to viewers at a later date on their OTT channel.
• It is erroneous on the part of India to oppose the making available right of broadcasters (which is a limited form of post-fixation right) and online transmissions when its domestic law recognizes these rights in order to cater to the contemporary needs of its domestic broadcasting industry.
• As Professor Pamela Samuelson says, “legal rules in foreign jurisdictions can sometimes limit the force of IP rights in the domestic country.” This is particularly true for piracy of online sports telecasts, which is a global menace. Often, pirate servers are located in different jurisdictions from the country of origin of the telecast. In case of unauthorized usage of live telecasts, the broadcaster or the sport organizer will invariably have to file a lawsuit in the foreign jurisdiction where the remote server is located. The success of the lawsuit will depend on whether the copyright law of the pirate jurisdiction protects broadcasting organizations against online piracy.
• Live cricket telecasts of Indian broadcasters are often pirated via remove servers located in different parts of the Indian sub-continent. For the adequate protection of online signals of Indian broadcasters in these pirate jurisdictions, international harmonization of broadcasters’ rights, in sync with the technological developments of the time, is extremely crucial.
• India plays a prominent role in the international copyright norm setting process. If India continues to oppose protection of broadcasters’ online signals, it is likely to adversely influence the position of other developing countries as well.
• On the basis of India’s erroneous stand if many developing countries (wrongfully) oppose a right as important as broadcasters’ online signals, there will no effective harmonization of broadcasters’ rights keeping in mind the technological realities.
• At a time when multilateralism in international IP law making is at a threat, a futuristic Broadcasters Treaty should be urgently endorsed by India especially because its domestic law protects broadcasters’ online signals anyway. This will go a long way in protecting the interests of its domestic sports broadcasting industry.
• The recent spate of court cases by broadcasters asserting their broadcast reproduction right in relation to online piracy of live sports telecasts indicates that broadcast piracy is a big menace in India.
• To avoid a similar situation to the U.S., where rampant online piracy led to a decline in the broadcast market for cricket, it is extremely important that online transmissions of both traditional broadcasters as well as webcasters are adequately protected.
Granting copyright protection to live sports telecasts will go a long way in combating sports broadcast piracy. This will also be consistent with international practices such as those in the U.S., E.U., and U.K. where a sports telecast is protected through judicial precedent. Further, it will also help in boosting the local sports industry, which has a potential to touch 4 billion U.S. dollars in coming years.
First Published by Seemantani Sharma, Online Piracy of Live Sports Telecasts in India, 28 Marq. Sports L. Rev. 433 (2018)
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- Seemantani Sharma is a broad in-house international intellectual property, media and regulatory lawyer at the Asia – Pacific Broadcasting Union (ABU) , the world's largest broadcasting union. At the ABU, she closely works with 270 broadcasters in 69 countries in the APAC for securing an international treaty for the protection of broadcasting organizations (the WIPO Broadcasters Treaty). She is also involved in IP rights acquisition issues for procuring and exchanging content rights with broadcasters, distributors, international federations and news corporations. Prior to ABU, she served as the Legal & Policy Fellow at the George Washington University where she worked on the applicability of fair use provisions for libraries and archives for building social media collections. She holds a LL.M in Intellectual Property Law from the George Washington University Law School.