Protecting Broadcasting Rights: A Comprehensive Guide for Organizations

When a television channel broadcasts a live cricket match, or a radio station plays a chart-topping song, the process looks simple from the outside. But behind every such broadcast lies a carefully constructed web of legal rights and permissions. Broadcasting organizations in India are not merely conduits for content – they hold a distinct set of intellectual property rights under the Copyright Act, 1957, and understanding these rights is fundamental to understanding how the broadcasting industry operates within the law.

What is a “broadcast” under Indian copyright law? 🔗

Before diving into the rights, it helps to understand how the law defines the subject matter. Section 2(dd) of the Copyright Act, 1957 defines “broadcast” as communication to the public – either by any means of wireless diffusion (signs, sounds, or visual images) or by wire – and explicitly includes a rebroadcast within that definition. A broadcasting organization, accordingly, is any entity engaged in communicating content to the public through such means, including television and radio channels.

What makes broadcasting rights legally significant is their classification as neighbouring rights (also called related rights). Unlike copyright, which protects the original author or creator of a work, neighbouring rights protect those who invest in and facilitate the communication of that work to the public. Broadcasters sit between the creator and the audience, and the law recognizes that position with a distinct bundle of rights.

The broadcast reproduction right under Section 37 🔗

Section 37 of the Copyright Act, 1957 – as amended by the Copyright Amendment Act of 1994 – grants every broadcasting organization a special right called the broadcast reproduction right. This right subsists for 25 years from the beginning of the calendar year following the year in which the broadcast was made. So if a channel broadcasts a programme in 2024, the broadcast reproduction right endures until the end of 2049.

During this period, the broadcasting organization holds the exclusive right to do – or authorize others to do – the following acts in relation to its broadcasts or any substantial part thereof:

• Re-broadcast the broadcast: No other entity can transmit the original broadcast again without permission from the broadcasting organization that first aired it.
• Cause the broadcast to be seen or heard by the public on payment of any charges: This covers situations where a third party screens or plays the broadcast in a commercial setting, such as a hotel showing a live sports feed to its guests for profit.
• Make any sound recording or visual recording of the broadcast: Capturing the broadcast in any fixed form – whether audio or video – requires the broadcaster’s consent.
• Reproduce any such sound or visual recording: Making copies of recordings already made of the broadcast also falls within the exclusive rights of the original broadcaster.
• Sell or give on commercial rental – or offer for sale or rental – any such recording: Distributing or commercially renting out recordings of broadcasts without authorization is an infringement.

Any person who performs any of these acts without a licence or the consent of the broadcasting organization infringes the broadcast reproduction right and is liable to legal action. The Bombay High Court underscored this in Garware Plastics and Polyester Ltd. v. Telelink (AIR 1989 Bom 331), where broadcasting a video film over cable TV for charges without proper authorization was held to constitute infringement under Section 37.

The layered permission problem: broadcast rights are not enough 🔗

Here is where broadcasting law becomes particularly nuanced – and where many broadcasters have stumbled. Holding a broadcast reproduction right does not automatically grant permission to broadcast the underlying content in that programme. A broadcast is rarely created in a vacuum. It often incorporates separately copyrighted works: a film, a musical composition, sound recordings, a literary script, or dramatic works. Each of these has its own copyright owner.

A television channel that wants to air a Bollywood film, for instance, must separately obtain:

• A licence from the film producer or distributor for the cinematographic work;
• Clearances from music publishers and composers for musical works embedded in the film;
• Permissions from the lyricist and the producer of the sound recording.

This layered requirement is confirmed by Section 39(2) of the Copyright Act, which explicitly states that the broadcast reproduction right does not affect the separate copyright in any work in respect of which the broadcast is made. In other words, owning the broadcast right in a programme does not override the copyright of the original author whose work features in that programme.

This creates what legal scholars often call the multi-layered copyright clearance model. Broadcasters must therefore navigate two distinct tracks simultaneously: securing rights to the broadcast itself, and securing rights to every copyrighted element within that broadcast.

Statutory licensing: a route for broadcasters under Section 31D 🔗

Indian law recognizes that negotiating individual licences for every piece of music or literary work a broadcaster wishes to air can be commercially impractical. To address this, the Copyright (Amendment) Act, 2012 introduced Section 31D, which provides for a statutory licensing mechanism. Under this provision, a broadcasting organization that wishes to communicate a published literary or musical work or sound recording to the public can do so by giving prior notice to the copyright owner and paying royalties at rates fixed by the Intellectual Property Appellate Board (IPAB). The procedure for doing so is elaborated in Rules 29-31 of the Copyright Rules, 2013.

This mechanism is particularly relevant for radio stations and television channels that broadcast large volumes of music. Instead of negotiating with every rights holder individually, they can invoke Section 31D, deposit the prescribed royalty, and lawfully air the content. The scheme balances two competing interests: it ensures copyright owners receive fair compensation, while also ensuring public access to content through broadcasting channels.

The ongoing debate about internet broadcasting 🔗

Section 31D was enacted primarily with radio and television in mind. As digital streaming platforms like Spotify, Wynk, and Gaana entered the Indian market, a pivotal question arose: do online platforms qualify as “broadcasting organizations” for the purpose of statutory licensing?

The Bombay High Court addressed this directly in Tips Industries Ltd. v. Wynk Music Ltd., holding that internet broadcasting services cannot claim the statutory licence under Section 31D, as the legislative intent of the 2012 amendment was to restrict this benefit to radio and television broadcasters. The court also noted that a prior fixation of royalty rates by the Appellate Board is a necessary precondition for invoking this section – a condition online platforms had not satisfied.

However, the debate is far from settled. The 161st Report of the Rajya Sabha Parliamentary Standing Committee on the Review of India’s IP Rights Regime recommended amending Section 31D to explicitly include internet and digital broadcasters – recognizing that OTT platforms and music streaming services have fundamentally transformed how audiences consume broadcast content.

Exceptions to the broadcast reproduction right 🔗

Section 39A of the Copyright Act carves out specific exceptions under which acts that would otherwise infringe a broadcast reproduction right are permitted without the broadcaster’s consent. These are:

• Private use or teaching and research: Recording a broadcast solely for personal, non-commercial use, or for bona fide teaching and research, does not constitute infringement.
• Judicial proceedings: Reproducing a broadcast for use in court or other legal proceedings is permitted.
• Fair dealing – reporting, review, and commentary: Using excerpts of a broadcast for the purpose of reporting current events, or for a genuine review, falls within the fair dealing exception.
• Use by legislators: Reproduction for use by members of a legislature is excluded from infringement.
• Other acts under Section 52: Any act that does not constitute copyright infringement under Section 52 – the general fair dealing and public interest exceptions – also does not infringe broadcast reproduction rights.

These exceptions reflect a core tension in intellectual property law: protecting the investment and creative output of broadcasters while preserving certain freedoms that serve the public interest.

Enforcement when rights are violated 🔗

When a broadcasting organization’s rights under Section 37 are infringed, the law provides multiple avenues for enforcement. Civil remedies available to broadcasters include injunctions (court orders to stop the infringing activity), damages (monetary compensation for losses), and an account of profits (requiring the infringer to disgorge the profits earned through unauthorized use). Courts can also order the delivery-up or destruction of infringing copies to prevent further dissemination.

Additionally, the Copyright Act’s provisions on technological protection measures (TPMs) and rights management information (RMI) give broadcasters tools to protect content in digital environments. Circumventing these protections attracts separate penalties under the Act. In notable cases, the Delhi High Court in Star India Pvt. Ltd. v. Piyush Agarwal (2013) affirmed the protection of broadcast signals against unauthorized retransmission, and in ESPN Software India Pvt. Ltd. v. Tudu Enterprise (2018), the court granted an injunction against unauthorized redistribution of sports broadcasts – underscoring the courts’ willingness to protect broadcast rights robustly.

The international dimension 🔗

India’s approach to broadcast rights broadly aligns with international frameworks, though with some distinct characteristics. The Rome Convention of 1961 was the first international agreement to specifically protect broadcasting organizations – though India is not a signatory, the Copyright Act incorporates many of its principles. The WIPO Performances and Phonograms Treaty (WPPT) and the ongoing negotiations around the WIPO Broadcasting Treaty also shape the global conversation around broadcast rights, particularly for digital environments. The proposed WIPO Broadcasting Treaty seeks to extend protection to webcasting and simultaneous internet transmissions, areas where Indian law currently has significant gaps.

Why this matters for broadcasters today 🔗

The practical takeaway for any broadcaster – whether a television network, a community radio station, or an emerging OTT platform – is that broadcast rights are multi-dimensional. Securing the right to broadcast is only the starting point. The organization must also verify and clear the rights in every underlying copyrighted work included in that broadcast: the musical compositions, the sound recordings, the scripts, and any other protected material. Failure to do so exposes the broadcaster to infringement claims not just from competing broadcasters but from authors, composers, and producers of underlying works – entities entirely separate from the broadcast rights ecosystem.

The statutory licensing route under Section 31D, while useful for published literary and musical works, is neither automatic nor universal. It comes with procedural requirements – prior notice, advance royalty deposits at IPAB-fixed rates – and its applicability to digital platforms remains legally contested. As the media landscape evolves, so must the legal frameworks governing it.

What do you think? Should Section 31D of the Copyright Act be formally amended to include internet and OTT platforms as broadcasting organizations, given their dominance in today’s media landscape? And should the law draw a sharper distinction between the rights of broadcasters and the rights of original content creators when it comes to resolving infringement disputes?

References

1. https://www.indiacode.nic.in/handle/123456789/1367?sam_handle=123456789/1362
2. https://www.quickcompany.in/articles/rights-of-broadcasting-organization-under-the-copyright-act-1957
3. https://vidhijudicial.com/sec-37-to-39-chapter-viii-(rights-of-broadcasting-organisation-and-of-perfomers)-the-copyright-act,-1957.html
4. https://ssrana.in/articles/internet-broadcasting-and-section-31d-of-copyright-act-1957/
5. https://www.mondaq.com/india/copyright/860144/internet-broadcasting-and-section-31d-of-copyright-act-1957
6. https://www.mondaq.com/india/copyright/1358840/inclusion-of-internet-broadcasting-under-section-31d-of-copyright-act-1957-need-of-the-hour
7. https://www.sonisvision.in/blogs/rights-of-broadcasting-organisations-under-indian-copyright-law
8. https://www.researchgate.net/publication/308199200_Scope_of_Rights_of_Broadcasting_Organizations_under_Copyright_Act_1957
9. https://ssrana.in/articles/internet-broadcasting-statutory-license-section-31d-copyright/