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High Court of Delhi
BADAR DURREZ AHMED & VIBHU BAKHRU, JJ.
Board of Control for Cricket in India & Another – Appellants
Versus
Prasar Bharati Broadcasting Corporation of India & Others – Respondents
LPA No. 1327 of 2007 & WP (C) Nos. 8458 & 9610 of 2007
Decided On : 04-02-2015
Prasar Bharati (Broadcasting Corporation of India) Act, 1990 -Section 3, 12(2)(e) , 12(2), 12(3)(a) - Broadcasting - Agreement - Termination - Violation of provision - Appeal by BCCI and Nimbus Communications Limited - Termination of the agreement - BCCI is the content rights owner - It has sold these rights to ESPN / STAR, which, in turn, sends the live feed in an encrypted form to its satellites - From the satellite, the feed is sent to its own channels for distribution either through their own DTH networks or through cable operators - Signals sent through their own distribution channels, ESPN / STAR shares the signals with Prasar Bharati, which is sent to Prasar Bharati in an encrypted form - Prasar Bharati re-transmits the signals in an encrypted form to its satellite, which, then streams that signal to three different networks - The three networks must carry obligation stipulated under Section 8 of the CTN Act - Cable operators have access to the broadcast of the sporting events through two different channels - ESPN / STAR and BCCI are not objecting transmission of the signals through the DTH and terrestrial networks of Prasar Bharati, but the free transmission of the signals by Prasar Bharati through cable operators - ESPN / STAR, has hit them in two ways - Reduction in advertisement revenue and by reduced subscription revenue - Those homes, which were connected via cable networks would have paid for receiving the live broadcast signals had Prasar Bharati through Doordarshan not provided the same free of cost to the cable operators - Held, shared live broadcasting signal, which Prasar Bharati receives from ESPN / STAR, should not be placed in the channels of Doordarshan which are to be compulsorily carried by the cable operators - It is a matter of administration - Matter of policy cannot override the statutory provisions contained in Section 3 of the Sports Act - Appeal are allowed to the extent that the live broadcasting signal shared by ESPN / STAR with Prasar Bharati, shall not be carried in the designated Doordarshan channels - This shall operate prospectively.
Prasar Bharati (Broadcasting Corporation of India) Act, 1990 - Section 3, 12(2)(e) , 12(2), 12(3)(a) - Telecast - Spectrum - Content - Power of - Issue raised is not with regard to the spectrum, but with regard to the content - ESPN / STAR has paid huge sum of money to BCCI to purchase the content rights for the period April 2012 to March 2018 - It has purchased those rights from BCCI which has been recognized as an organizer of the Sports - BCCI has also been recognized as being fuelled by the motive to promote the game of cricket rather than for pure business gain - BCCI derives its substantial revenue from media rights and not from gate receipts - It is these revenues, which are spent for the development of sports and sporting facilities relating to cricket all over India - If these revenues are affected, it is ultimately the sport of cricket which would suffer - It was open for Prasar Bharati to have also negotiated for the purchase of the content rights in respect of the sporting events of national importance, including cricket matches - Prasar Bharati has not paid for it, the live broadcasting has to be shared by the content rights owner with Prasar Bharati, compulsorily - It is in the nature of a compulsory exaction - It cannot expand this manner of acquisition to such an extent as to virtually become the content rights owner itself.
BADAR DURREZ AHMED, J.
1. This group of matters comprises of one appeal (LPA No. 1327 of 2007) and two writ petitions WP (C) 8458 of 2007 and WP (C) 9610 of 2007. As common issues arise, these matters are being disposed of by this common judgment.
2. LPA 1327 of 2007 is an appeal preferred by the Board of Control for Cricket in India (BCCI) and Nimbus Communications Limited. During the pendency of the appeal, appellant Numbers 3 and 4 were also added being ESPN Software India Pvt. Ltd and Star India Pvt. Ltd. Star India Pvt. Ltd. on the termination of the agreement by the BCCI and Nimbus, entered into a Media Rights Agreement with BCCI with effect from April 2012 which would continue upto 31.03.2018. ESPN Software India Pvt. Ltd is responsible for the distribution of the sports channels, including ESPN, STAR Sports, STAR Cricket, STAR Sports 2, STAR Cricket HD and ESPN HD. Because of the events taking place during the pendency of the appeal, ESPN Software India Pvt. Ltd and Star India Pvt. Ltd have been added as appellant Nos. 3 & 4.
3. The said appeal (LPA No. 1327 of 2007) is directed against a learned single Judge’s judgment dated 05.11.2007 in WP (C) 7655 of 2007. The writ petition had been filed by the appellant Nos. 1 and 2, namely, BCCI and Nimbus. By virtue of the impugned judgment dated 05.11.2007, the said writ petition was dismissed. In that writ petition, BCCI and Nimbus had sought a direction to be issued to respondent Nos. 1 & 2 (Prasar Bharati Broadcasting Corporation and Union of India) to encrypt Doordarshan’s Satellite Transportation Feed of live broadcasting signals of cricket matches organized by BCCI to the Doordarshan Kendras and transmission towers throughout India for subsequent broadcasts on Doordarshan’s terrestrial networks. A declaratory writ was also sought for declaring that no person other than Prasar Bharati had the right to transmit, relay or offer for exhibition, the live broadcasting signals of sports events shown by Prasar Bharati under the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 (hereinafter referred to as the Sports Act). A declaration was also sought that no cable television network, Direct-to-Home (DTH) Network, multi-system network or local cable operator could broadcast such sports events without a licence from the content owners. Finally, a direction was also sought against the respondent No.1 for notifying that the Doordarshan signals relayed live in respect of the sports event, including cricket matches notified under the Sports Act, should be carried on cable television networks, DTH Broadcasting networks, Multi-System Cable Networks, etc. pursuant to Section 8 of the Cable Television Networks (Regulation) Act 1995 (hereinafter referred to as the CTN Act).
4. The learned single Judge, by virtue of the judgment dated 05.11.2007, rejected each of the prayers and, as aforesaid, dismissed the said WP (C) 7655 of 2007. The learned single Judge analysed the various provisions of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter referred to as the Prasar Bharati Act), the CTN Act, the Sports Act and the Guidelines for Downlinking of TV Channels issued on 11.11.2005 as also the Guidelines for Uplinking from India issued on 02.12.2005 and concluded that Parliament had consciously chosen not to prescribe encryption for transmission of the feed received by Doordarshan to its Kendras. The learned single Judge, with regard to the notification issued under Section 8 of the CTN Act, held that carrying of sporting events in the designated Doordarshan Channels was a matter of policy with which the court could not interfere. He, however, observed that if non-encryption resulted in the violation of any copyrights, which the appellants held as content owners, they were free to seek redressal. The learned single Judge, however, refrained from giving any opinion as to whether the non-encryption of Doordarshan’s Satellite Transportati
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