Exploring Limitations and Exceptions to Broadcasting Rights

Broadcasting organizations invest enormous resources in acquiring, producing, and transmitting content to millions of viewers and listeners. The law protects these investments by granting them exclusive rights over their broadcasts. But here’s the tension: if those rights were absolute, news channels couldn’t air a cricket clip, researchers couldn’t study a documentary, and teachers couldn’t show a recorded programme to their students. Copyright law resolves this by carving out specific limitations and exceptions – situations where copyrighted broadcasts can be used without the rights holder’s permission. Understanding where these exceptions begin and end is essential for anyone working in media, law, or even academia.

Why exceptions exist in the first place 🔗

Copyright protection is not designed to be a monopoly without limits. It is designed to encourage creativity and investment while ensuring that knowledge and information remain accessible to society. Broadcasting rights, specifically, exist to protect entities that invest substantially in creating and distributing content. However, the Indian Copyright Act, 1957 acknowledges that certain uses of copyrighted material serve a larger public good – education, criticism, journalism, and research – and these uses must be facilitated even without the rights holder’s consent.

This is not a loophole. It is a deliberate policy choice embedded in copyright law across jurisdictions. The law recognises that a rigid, permission-based system for every single use would be impractical and harmful to the free flow of information.

The primary framework: Section 39 of the Copyright Act 🔗

Section 39 of the Indian Copyright Act, 1957 is the central provision governing exceptions to broadcast reproduction rights and performers’ rights. It specifies that these rights are not infringed when:

First, a person makes a sound or visual recording for private use or solely for the purposes of bona fide teaching or research. Second, excerpts from a broadcast or performance are used, consistent with fair dealing, for reporting current events, or for genuine review, teaching, or research. Third, any act that does not constitute infringement of copyright under Section 52 also does not infringe broadcast reproduction rights, with necessary adaptations.

This structure means that Section 39 is essentially a bridge. It extends the exceptions available under Section 52 (the general fair dealing provision) to the specific domain of broadcasting rights.

Fair dealing: the backbone of broadcast exceptions 🔗

Section 52(1)(a) of the Copyright Act permits fair dealing with any work for purposes of private or personal use including research, criticism or review, and reporting of current events and current affairs. These three purposes form the practical core of most exceptions to broadcasting rights in India.

Private and personal use 🔗

An individual recording a television programme to watch later – commonly called time-shifting – or moving content between personal devices (space-shifting) for non-commercial use generally falls within the private use exception. The key requirement is that the use remains personal and is not distributed or commercially exploited. Courts have read this exception narrowly: the moment a private recording crosses into distribution or commercial use, the exception no longer applies.

Criticism and review 🔗

A media critic, a legal commentator, or a journalist using excerpts from a broadcast to analyse, critique, or review it is permitted to do so under fair dealing. The use must be genuinely critical rather than a pretence to reproduce content. As the Delhi High Court indicated in Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. (2011), criticism and review must be authentic – the depth of criticism is not the standard, but the use must constitute genuine commentary rather than entertainment dressed as critique.

Reporting of current events 🔗

News channels and journalists regularly use short clips from live broadcasts – sports events, press conferences, speeches – while covering news stories. This is permitted, but only to the extent necessary for the reporting. In the landmark case of ESPN Star Sports v. Global Broadcast News Ltd., the Delhi High Court clarified that while news organisations may use short clips of sporting broadcasts under the reporting exception, extensive use that captures the core of the broadcast exceeds what fair dealing permits. The court laid down clear tests to distinguish permissible news reporting from disguised retransmission.

Educational use and research 🔗

The law makes specific allowances for the use of broadcast content in education. Section 52(1)(i) of the Copyright Act provides that copyrighted works, including broadcasts, can be used in the course of instruction at educational institutions. This includes recording a broadcast for classroom use, using it in distance learning programmes, or creating instructional compilations from broadcast excerpts. The critical limitation here is that the use must be non-commercial and confined to genuine educational settings. A school that records a documentary for classroom discussion is covered; the same school using that recording to produce content for sale is not.

Similarly, bona fide research – including academic scholarship – is protected. However, the Act clarifies that “research” does not include industrial research or commercial research by private bodies. The exception is aimed at genuine scholarly inquiry.

Ephemeral recordings: a technical necessity 🔗

Broadcasting is technically complex. To transmit a programme smoothly, a broadcaster often needs to make a temporary recording – of an advertisement, a segment, or an entire programme – before it goes on air. These are known as ephemeral recordings. Section 39A of the Indian Copyright Act, read alongside Section 52(1)(b), recognises this technical necessity and permits broadcasters to make such recordings for the purpose of broadcasting, subject to the condition that these recordings are not retained beyond their broadcast purpose or repurposed for other uses.

The international standard: the three-step test 🔗

Indian copyright law does not operate in isolation. It is shaped by international obligations, particularly the TRIPS Agreement and the Berne Convention, both of which incorporate what is known as the three-step test for evaluating copyright exceptions. This test requires that any exception must:

Be confined to certain special cases – meaning exceptions must be clearly defined with a specific, limited purpose. Not conflict with the normal exploitation of the work – exceptions must not undermine the primary market for the broadcast. Not unreasonably prejudice the legitimate interests of the rights holder – the exception should not cause unjustifiable economic harm to the broadcaster.

Indian courts use this test as an interpretive tool. Even where a use appears to fall within an exception, if it fails the three-step test – particularly by undermining the broadcaster’s commercial interests – it may not be treated as permissible. This is why the ESPN case mattered: the extent of footage used effectively substituted for the original broadcast, failing the second and third steps of the test.

Statutory licensing and compulsory licensing: exceptions with compensation 🔗

Beyond outright exceptions, Indian copyright law creates mechanisms through which broadcasts can be used without individual permission but with compensation to rights holders. These are not free rides – they are structured systems that balance access and remuneration.

Statutory licensing under Section 31D 🔗

Section 31D of the Copyright Act allows any broadcasting organisation to communicate literary or musical works and sound recordings to the public without obtaining individual licences, provided they give prior notice and pay royalties at rates fixed by the designated authority. This removes the need for case-by-case negotiation while ensuring that rights holders receive compensation. The rates are set separately for radio and television broadcasting.

Compulsory licensing under Section 31 🔗

Where a work is being withheld from the public unreasonably – for instance, where a broadcaster refuses to allow communication of a work on unfair terms – Section 31 of the Act empowers the Commercial Court (which now handles functions previously exercised by the Copyright Board and IPAB) to direct the grant of a licence to the complainant. This is a more interventionist tool, used when normal market mechanisms have broken down.

Exceptions for persons with disabilities 🔗

The 2012 amendments to the Copyright Act introduced important provisions allowing use of copyrighted works, including broadcasts, for the benefit of persons with disabilities. These amendments brought Indian law into conformity with international accessibility standards and the Marrakesh Treaty’s objectives, recognising that copyright should not stand in the way of making content accessible to those with visual, hearing, or other impairments.

How courts assess fair dealing in practice 🔗

When a dispute arises over whether a use qualifies as fair dealing, Indian courts do not apply a simple checklist. They consider multiple factors together: the purpose and nature of the use (is it genuinely educational, critical, or informational, or is it commercial?), the amount of the broadcast used (using brief clips is more defensible than reproducing substantial portions), and whether the use captures the core or essence of the broadcast. Using even a short clip that constitutes the heart of the broadcast – the match-winning goal, the key testimony – may exceed fair dealing limits, regardless of its brevity.

Courts have also begun looking at whether the use is transformative – whether it adds new expression, commentary, or meaning to the original – as opposed to simply reproducing it in a different context. Transformative uses receive broader protection under fair dealing principles.

The digital challenge 🔗

Traditional exceptions were designed for traditional broadcasting – radio and television. The internet has significantly complicated matters. Broadcasts are now streamed online, clipped, shared on social media, and embedded across platforms. India’s 2012 amendments to the Copyright Act extended protection into the digital environment, but applying territorial exceptions to a borderless internet remains an unresolved challenge. A clip used for news commentary in India can be simultaneously accessed in another jurisdiction where different rules apply. International harmonisation on this front remains incomplete.

The Tips Industries Ltd. v. Wynk Music Ltd. (2019) decision by the Bombay High Court – which initially held that statutory licensing provisions do not automatically extend to internet streaming – illustrated how courts are still working through how traditional copyright frameworks apply to digital broadcasting realities.

The balance copyright law seeks to maintain 🔗

The system of limitations and exceptions to broadcasting rights is not an afterthought. It is a carefully calibrated architecture that recognises that broadcasting organisations have legitimate economic interests, but that society equally has a legitimate interest in accessing information, education, commentary, and culture. Neither set of interests can fully override the other. The law tries to ensure that exceptions are real and workable – not so narrow as to be meaningless – while also ensuring that they do not hollow out the commercial value that makes broadcasting viable in the first place.

Every exception in this framework comes with conditions: the purpose must be genuine, the use must be proportionate, and the harm to the rights holder must not be disproportionate. When these conditions are met, the use is permissible – not because the law ignores the rights holder’s interests, but because it values something else equally.

What do you think? If a news channel uses a two-minute clip from a five-hour live sports broadcast while reporting the result, should that clearly qualify as fair dealing – or should the volume of investment by the original broadcaster carry more legal weight? And as broadcasts increasingly happen online, should digital streaming platforms receive the same exceptions as traditional radio and television broadcasters under Indian copyright law?

References

1. https://copyright.gov.in/Exceptions.aspx
2. https://lawgist.in/copyright-act/39
3. https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1029&context=ijlt
4. https://www.wipo.int/wipolex/en/text/342028
5. https://www.copyright.gov.in/Documents/Copyrightrules1957.pdf
6. https://copyright.gov.in/
7. https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/copyright-protection-india-overview-and-recent-developments-2022-03-02_en