India is a member nation to many international agreements, covenants, treaties
that regulate intellectual property protection across the globe. Indian Media
and Broadcasting Industry protects its valuable IP rights through prominent
statutes like the Copyright Act, 1957, and the Trademarks Act, 1999.
issues relating to broadcasting rights and media rights are:
- novel content.
- rights of the owner.
- remedies for infringement.
- just use and remedies or defenses.
- broadcasting, moral and performance rights; and
- border controls to prevent infringing copies and materials from entering
Because India is a party to the Berne Convention and the Agreement on
Trade-Related Aspects of IPR, protection of copyright is extraterritorial. In
India, copyright registration is not required to obtain protection. In addition,
common law rights such as personality and commercial rights are protected by
Role of Copyright Law
As per the Section 14 of the Copyright Act of 1957, the term 'copyright' is
described and reiterated as "the exclusive right which the owner has over his
material or work. It also includes the authority to do or authorize any other
person the doing of particular tasks in a work." Copyright protects literary,
music, dramatic, and artistic works for example poetry, publications, films, and
Due to the obvious and severe competition in the entertainment industry,
it is now more important than ever to protect the original material of the
person who created it, against copying. But in our country, however,
registration for copyright is not required to gain protection, although it does
make it even simple for the petitioner to seek a quick resolution in the
scenario of a legal disagreement.
Copyright is a legal framework that allows the media and entertainment
industries to protect creative works over which the proprietor has sole
ownership. The extent of copyright protection, on the other hand, cannot be
limited to just a concept. To benefit from copyright law, the work should be
embodied in a tangible medium. The replica should be significant and not minor
to be held accountable for infringement in court. Finally, there would be no
violation or copyright violation if the themes of the two works were the same
but presented in different ways.
Owing to the unavailability of copyrighted work, the person or creator who has
committed time and energy into generating the material experiences a major loss.
Copyright registration has become a necessity today since infringement of
copyright is so frequent. In the case of infringement, previous decisions show
that registration is essential in order to execute civil and criminal penalties.
In the landmark case of Dhiraj Dharamdas v. M/s Sonal Info Systems Pvt Ltd
the Bombay High Court propounded that making a person liable for infringement or
ascribing by him, whether it is done with intention or without that would be
considered irrational or ridiculous unless the person who infringed is aware of
the fact that the creator or the owner of the work has registered his
content/material or work under Section 44 before he had infringed it.
Role of Trademark Law
Trademarks are symbols, expressions or signs used to differentiate one person's
goods or services from those of another. Subject to specific restrictions, the
Trademark Act of 1999 protects the name of the films, song names, pictures,
albums of musicians and renowned characters. The title must be distinctive and
creative; otherwise, if it is generic in character, it is unlikely to be
The entertainment sector is heavily reliant on trademarks. Movie studios utilize
trademarks to build a unique image and to be distinguished out in the
marketplace. Despite the fact that the film industry is not immune to legal
concerns including identical or confusingly similar album titles, illegal use of
picture names, and passing off, the Trademark Law contains recourse for
infringement of trademark.
Celebrity rights are an important part of the entertainment industry, and such
rights form a huge part in it. Celebrities have the right to capitalize on their
celebrity status and profit from it. They commonly give their voices and become
a part of advertising and non-commercial organizations, main reason being
gaining of profit, but there have been countless examples where the celebrity's
identity has been used without their approval, exposing the concerns about
privacy and abuse they face in return for financial allowances.
international treaties, such as the Universal Declaration of Human Rights, have
acknowledged these rights. Furthermore, in India, copyright and trademark play
an important role in acting as a shield and guard for the protection of
However, the term "celebrity" is not explained in the Copyright Act, it can be
protected under Section 38 of the Act, which grants a performer's right to any
performer for a period of fifty years in respect to his performance. According
to Section 39 of the same Act, anybody who records a performance without the
permission of the performer is committing a violation of the performer's rights.
Courts have made significant judgements regarding celebrity rights on several
Photographs, publications, and any adaption involving a celebrity are
protected under copyright. The protection has also been extended to fictional
characters by the court. It should be emphasized, however, that the name or
image of a celebrity in India is not protected by copyright.
Character merchandising, which arises from the promotion or amplification of the
characters based on a film, is one way to earn supplementary money outside of
theatres. Because of its commercial interest and the large sums of money that
may be made, this is garnering appeal in our country.
Due to the enormous extent
of the sector, the current intellectual property restrictions may not even be
adequate to safeguard the entire legality or susceptibility of character
merchandising. However, trademark law protects the character's image, while
copyright law protects the creator's work.
In DM entertainment v. Baby Gift House (2010), the Delhi High Court issued an
injunction against a third party for selling dolls like a renowned popstar
without his consent or permission, noting the possibility of buyers being
Legal framework governing media and broadcasting under Intellectual Property
The media sector is protected by copyright, patents, and trademarks. Copyright
ensures the recognition of artists' rights as well as protection against content
infringement. The primary characters in a film, as well as the film titles and
other relevant components, are protected by trademark. IP rights are being
violated, trademarks are being infringed, and copyright is being infringed as
the media business grows.
Copyright is defined in Section 14 of the Copyright Act of 1957 as the right
granted to do or authorize the doing of a work. If a person's own work is
infringed in India, the person who infringed will be prosecuted under section 63
of the Copyright Act, 1957. If a civil case is pending, the criminal court will
not be able to decide on copyright infringement. The Bombay High Court concluded
that the infringer's behavior would be absurd if he attributed infringement
without knowing that the copyright owner had registered under section 44 of the
Broadcasting rights, internet streaming and statutory licensing
The "broadcast reproduction right," which is distinct from the copyright that
belongs to the creator or owner of the work being broadcast, is granted to
broadcasting corporations under Sec. 37 of the Copyright Act. The right lasts
for a quarter-century. In Asia Industrial Technologies v Ambience Space
, the Bombay High Court ruled in 1997 that broadcasting corporations
can use this privilege even if they are not domiciled in India, as long as the
transmission is accessible in India.
The right entitles a broadcaster to
prevent others from engaging in the following with respect to the broadcast of a
program or a substantial part thereof:
- disseminating a broadcast without authorization in exchange for payment;
- making unauthorized sound or visual recordings of the broadcast or
reproducing, selling, or renting such recordings
Although 'broadcasting' is explained as 'communication to the public,' the
Copyright Law does not define a broadcasting organization:
"By any means of wireless diffusion, whether in any one or more of the forms of
signs, sounds or visual images; or by wire."
Under Section 31D of the Copyright Act, broadcasting organizations can ask the
Intellectual Property Appellate Board:A specialist body for IP rights problems:
To determine legal payments for literature and musical works, along with sound
recordings. The organization must pay the copyright owner royalties at the price
authorized by the board. The sentence uses the terms 'radio broadcast' and
'television broadcasting.' When Section 31D was added to the statute in 2013,
lawmakers were well conscious of the Internet as a medium of material exchange.
The question of whether internet streaming services qualify as broadcasters has
recently been debated in the courts. The High Court of Bombay answered the
question in Tips v Wynk in 2019, keeping in mind the act's statutory license
It was ruled that because Section 31D solely applies to the broadcasters on
radio and TVs, online streaming services cannot benefit from the statutory
licensing scheme. The omission of any reference of the Internet in the provision
was interpreted by the court as a purposeful decision to limit the legislative
licensing system to just public broadcasting. The appeals court case is still
underway, and the matter has yet to be settled.
Broadcasting Rights: "Hot News" and "Live Match Updates"
The media and broadcasting business, particularly in the sphere of sport and
live matches, is concerned about parallel or concurrent broadcast of such
happenings via websites and mobile apps by a licensed authorized broadcaster who
has committed in the broadcasting rights.
In the landmark case of Star India v Piyush Agarwa
l (2013), the Delhi High
Court issued a constricted injunction forbidding the defendants from publicizing
live stream evidence in the form of ball-by-ball or minute-by-minute live
scoring and match alerts without already getting a license from the Board of
Control for Cricket in India (BCCI).
The plaintiff had secured a television
broadcasting license from the BCCI and sought an injunction barring the
defendants from utilizing text-based reporting to report cricket events on their
mobile app. A temporary injunction was given by the court, permitting the
respondents to notify fifteen minutes just after real broadcast, enabling the
authorized broadcaster to reap the benefits of their investment.
The Delhi High
Court reversed the verdict on appeal, holding that match data and updates are
inherently facts and therefore are not covered under the Copyright Act. As a
result, whether for commercial or non-commercial purposes, publishing or
disseminating match information or facts does not constitute copyright
infringement, prejudicial competition, or unfair augmentation. The decision was
taken to the Supreme Court for review. However, the Apex Court upheld the single
judge's interim order, it has yet to reach a final decision on the matter.
De Minimis Infringement
Copyright is governed by the principle of "de minimis non-curat lex," which
means "the law does not bother itself with trifles." If a litigation is
about trifling matters, a court has the ability to use the de minimus principle.
The De minimus philosophy, for example, is employed in music sampling, when
sound engineers modify a little section of a piece of music and include it into
a new piece of music.
The theory was used to decide copyright infringement in the case of India
Independent News v. Yashraj Films Private Ltd
., when sections of popular
songs were broadcast in a singer's interview on a television chat show. It was
decided that the claimed infringement was not actionable because it was deemed
Trademark Act, 1999
Songs, music albums, movie titles, and their well-known characters are all
protected by the trademark legislation.
The following are a few of the
prerequisites that must be met:
- Titles and phrases should be unique. The general ones will not be
protected under trademark if the titles are not unique.
- There will be no trademarking of single film names. Film franchises like
Harry Potter and the Chronicles of Narnia, as well as television shows like
F.R.I.E.N.D.S., Money Heist, and others, can be trademarked.
Rights of Celebrities
Celebrities' photos have been misappropriated and used without their consent. In
India, the copyright and trademark acts both protect celebrity rights. In
addition, the Universal Declaration of Human Rights aims to defend the rights of
Sections 38 and 39 of the copyright Act cover celebrity rights. The performer's
right is guaranteed to any performer respecting his performance for fifty years
under Section 38 of the copyright legislation. Section 39 of the copyright
statute states that if a person records a performer's performance without his
consent, he will be held accountable for infringement.
Combating Online Piracy: An Evil for Broadcasters and Media
John Doe judgments have demonstrated to be an excellent way for copyright owners
to protect their rights in the past, in both physical and virtual worlds. The
Delhi High Court designated court commissioners to confiscate devices from the
establishments of unidentified cable companies who were livestreaming the 2002
Football World Cup without the plaintiff's permission in the case of Taj TV v
 (2002), which involved an infringement of a sports TV channel's
broadcast reproduction rights.
The John Doe concept has been effectively used by
a wide number of media firms and broadcasters to tackle large-scale piracy over
the years. But misuse of John Doe orders has resulted in the blocking of lawful
content and entities under the pretense of such orders.
As a result, in Eros
International Media v BSNL
(2016), the Bombay High Court established a
three-step verification procedure for blocking orders to be valid:
- written verification and assessment by external agency of infringing
uniform resource locators (URLs).
- second-level verification by the complainant and its advocates; and
- an affidavit on oath.
In addition, the court directed that all internet providers create an
obstructing page with data about the order and the court, having allowed any
real or innocent individual to register a complaint with the court.
In today's competitive environment, where piracy is fast and pirates are
anonymous, it's more important than ever to protect intellectual property, John
Doe orders have increasingly become useless, necessitating a new approach. The
media and broadcasting industries are losing a large amount of money as a result
of pirated copyrighted content that is publicly accessible and downloadable on
websites. 'Rogue' websites such as Kickass, Piratesbay, Torrentz, and others
operate solely to disseminate infringing material. Whenever one URL or server is
blocked, additional URLs and servers with similar names and locations surface.
The court has prescribed the following factors for classifying websites as
- the primary purpose of the website is to facilitate infringement.
- traceability of the owner.
- non-responsiveness of the website operator to takedown notices.
- the website contains instructions to facilitate copyright infringement;
- traffic volume or frequency of access to the website.
The court's rogue website requirements were essential to protect the flexible
order from being utilized against legitimate internet sites that fall under the
category of "intermediaries" and are given legal protection under the IT Act,
2000 and its guidelines.
Intellectual property laws have always played a major role in protecting
creative minds especially copyright and trademark. The copyright law mainly
protects the literary work of the author from misuse or use without consent for
commercial gain. The trademark law on the other hand accords protection to any
signs, goods, or services. Intellectual property has paramount importance in the
media and entertainment industry as it gives the necessary protection thus
preventing the misuse of their work and accelerating the business growth.
In the digitized era, intellectual property plays a more significant role. As
more and more content has been being uploaded online, disputes such as copyright
piracy are rising. The work of the authors and artists needs protection after
they have been created to avoid its misuse by other persons. The role of
intellectual property law comes into play at this stage which has been performed
to the best of effect since its inception. It has been amended from time to time
to resolve the issues which crop up relating to the rights of the creator in the
- Mamta Rani Jha, Protecting intellectual property in media and broadcasting,
World Trademark Review (December 19, 2019),
- Tripti Bhushan & Yash Arora, Intellectual Property Rights and Its Protection
in Cyberspace and media laws, 2020 IJARIIE 6, 1-4.
- Intellectual Property Rights and Communication: An Anthology (pp.238), EBH
Publishers (India), 2019.
- Dhiraj Dharamdas v. M/s Sonal Info Systems Pvt Ltd, 3 MhLJ 888 (2012).
- Section 44, Copyright Act, 1957
- Supra Note 2.
- Illakiya Kamaraj, Role of IP in the Media Industry, Enhelion (October 2,
- 1997 (99) (3) BOMLR 613
- S. 2(d) of the Copyright Act, 1957.
- Tips Industries Ltd. v. Wynk Music Ltd., Notice of Motion (L) No. 197 of
2018 in Commercial Suit IP (L) No. 114 of 2018, decided on 23-04-2019.
- 2013 (54) PTC 222 (Del)
- De Minimus Use, USLEGAL (Aug. 25, 2019, 09:30 AM),
- 1094 COMIP 596 (2019).
- 2003 FSR 22
- SUIT (L) NO. 303 OF 2016