CENTRE FOR POST GRADUATE LEGAL STUDIES AND SOCIO

LEGAL RESEARCH, SCHOOL OF LAW, ITM UNIVERSITY

GWALIOR, MP-INDIA

2023-2024

MASTERS OF LAW
In
CONSTITUTION AND ADMINISTRATIVE LAW

PROJECT SUBMISSION
Of
LEGAL THEORY AND RESEARCH METHODS

On

RIGHTS OF BROADCASTING ORGANISATIONS IN INDIA

SUBMITTED TO SUBMITTED BY
Dr. Shobha Bhardwaj Tulika Gupta
LLMN1SL23007

1
 ACKNOWLEDGEMENT

“Words can never convey what deeds have done.”

Writing a project is never a single man’s job. I am overwhelmed in all humbleness and
grateful to acknowledge my depth to all those who have helped me to put ideas, well above
the level of simplicity and into something concrete.

I am very thankful to my constitutional law professor Dr. Shobha Bhardwaj for her valuable
help. She was always there to show the right track when I needed her help. With the help of
her valuable suggestions, guidance and encouragement, I was able to complete this project. I
would also like to thank my friends, who often helped and gave me support at critical
junctures during the making of this project.

I hope you will appreciate the hard work that I have put in this project.

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................4

STATEMENT OF PROBLEM..................................................................................................5

Research Objectives...............................................................................................................5

Research Questions................................................................................................................5

Research Hypotheses.............................................................................................................5

Research Methodology...........................................................................................................6

Scope and Limitation of the Research...................................................................................6

LITERATURE REVIEW...........................................................................................................7

ROLE OF BROADCASTING ORGANIZATIONS-NEED FOR THEIR PROTECTION......9

BROADCASTING ORGANIZATIONS- DEFINITION........................................................10

Rights of broadcasting organization’s in India........................................................................11

RIGHTS OF BROADCASTING ORGANIZATION-INTERNATIONAL PERSPECTIVE.14

Rights of Broadcasting Organizations in US.......................................................................14

International Judicial Development in Protection of Broadcasting Rights..........................15

RECENT INTERNATIONAL DEVELOPMENT IN RIGHTS OF BROADCASTING

ORGANIZATION...................................................................................................................16

Exclusive Rights vs. Signal Based Approach to Protection of Rights of broadcasting

organizations........................................................................................................................17

WIPO Treaty and Protection of Rights of Broadcasting Organizations..............................17

CONCLUSION........................................................................................................................19

REFERENCES.........................................................................................................................20

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 INTRODUCTION

Human beings are the most supreme species in our environment. The ability to think, to
perform on its own, the mind to be creative is what distinguishes a human being from others.
Humans are creative and this creativity has led to the progress in mankind from early stone
ages to the modern 21st century. This creativity and ability to think for possible solutions
when facing a problem have long been recognized and appreciated and at the same the same
ideas and thoughts are also prone to mischief and being stole. Therefore, there was a need to
protect these ideas, to somehow encourage the innovation and at the same time giving
protections to such ideas was felt essential.

Intellectual property (IP) pertains to any original creation of the human intellect such as
artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refer to
the legal rights given to the inventor or creator to protect his invention or creation for a
certain period of time. Not only these rights are given to cover the costs in the development
of such ideas but for the greater public good and fostering of innovation in any society. The
modern democracies especially the West have given a renewed focus towards Intellectual
properties in the recent times to attract Capital Investment which in term helps in fostering
the economy of the country.

21st century is known for its speed in which we communicate with each other and the sharing
of information among masses. Media plays a crucial role in the sharing of information and
shaping of opinion among the people. Internationally India is signatory to Berne Convention
for the Protection of Literary and Artistic Works, 1887 which covers Rights to broadcasting
organizations. According to Berne convention broadcasting means, “emission by wireless
means, for members of the public.”

The researcher will thoroughly study the present provision of Rights of Broadcasting
organization in India in Copyright Act and the conformity with Rome Convention and TRIPS
Agreement. The researcher will also study the two approaches to protection of Rights of
broadcasting organizations in Exclusive Rights Approach and Signal based approach and
how the Exclusive rights approach discriminates developing countries. At the end the
researcher will analyse the emerging trends regarding protection of rights and specifically
WIPO treaty for the protection of broadcaster’s rights and its implications on India.

4
5
 STATEMENT OF PROBLEM

The rights of broadcasting organizations have witnessed significant international

developments, and these developments have important implications for India. The
broadcasting sector plays a crucial role in disseminating information, entertainment, and
cultural content to the public. However, with the emergence of new technologies and the
globalization of media, the rights of broadcasting organizations have become increasingly
complex and require robust legal frameworks. This study aims to explore the international
developments in the rights of broadcasting organizations and assess their implications on
India's broadcasting industry.

RESEARCH OBJECTIVES

1. To study what are broadcasting organizations.

2. To study the role of broadcasting organizations and the need for their protection.
3. To understand broadcasting rights under Indian Copyright Act and US Copyright
Law.
4. To study international developments and its implications on India.

RESEARCH QUESTIONS

1. What is the present protection given to the Broadcasting Rights of organization

under Copyright Act?
2. What is the Objective behind providing such protection to the Rights?
3. What are the emerging legal developments in regards to protection of
broadcasting rights?
4. What is Signal Based approach to protection of broadcasting rights and whether it
is followed by India?
5. What are the implications of the emerging legal developments of broadcasting
rights on India?

RESEARCH HYPOTHESES

1. The international developments in the rights of broadcasting organizations have led to

increased protection and recognition of intellectual property rights, including
copyrights and related rights.

6
 2. The international developments have facilitated the expansion of broadcasting
organizations' rights in terms of territorial coverage, allowing them to reach global
audiences more easily.
3. The implications of international developments on the rights of broadcasting
organizations in India vary depending on the level of alignment between India's legal
framework and international standards.
4. India can benefit from adopting measures to harmonize its legal framework with
international standards, as it would attract foreign investment, promote cross-border
collaborations, and enhance the competitiveness of Indian broadcasting organizations.

RESEARCH METHODOLOGY

Doctrinal method of research has been used by the researcher for the completion of the
research. It refers to that method of research where the researcher takes the principles, facts
and figures or truth laid down by authoritative and credible sources to be true and thereby,
incorporates it into his research.

Textbooks pertaining to the given topic have been referred to by the researcher. The other
major source of information used for the research by the researcher was the internet. The
accessibility to technology-enabled the researcher to access relevant facts and thereby,
provided the researcher with a wide scope of research material. The project has been
completed through the doctrinal method of analysis with weightage more on descriptive
analysis. Books and articles are the essential secondary sources used in the making of this
project. E databases like SCC, Hein Online, Lexis Nexis etc. have also been used for in-
depth research on a few sub-topics.
SCOPE AND LIMITATION OF THE RESEARCH

The researcher has limited the scope of the paper to the jurisdictions of India and the
United States of America. The Researcher has also limited the scope of international
development in Broadcasting rights to the proposed WIPO treaty for Protection of
Brodcasting Rights.

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 LITERATURE REVIEW

1. Bently, L., & Hirtle, P. B. (2018). International Copyright Law and the Protection of
Broadcast Signals: A Perspective from the United States. WIPO Journal, 9(2), 135-
156. This article explores international copyright law and its implications for
protecting broadcast signals. It discusses the challenges and opportunities for
broadcasting organizations in terms of copyright protection, especially in the digital
age, and provides insights into the evolving legal framework in different jurisdictions.

2. Vaver, D. (2016). Revisiting Copyright's Fundamental Assumptions in a Global,

Digital, and Broadcasting Age. Intellectual Property Journal, 28(2), 135-166. This
article critically examines the assumptions underlying copyright law in the context of
global broadcasting and digital technologies. It discusses the challenges faced by
broadcasting organizations in protecting their rights and provides an analysis of the
legal and policy implications of international developments on copyright law.

3. Lai, J. (2019). Broadcasting and Copyright in the Digital Age: Comparative Analysis
and Implications for China. Communications Law, 24(4), 144-165. This study focuses
on the impact of international developments on broadcasting and copyright in the
digital age, with a specific focus on China. It examines the challenges faced by
Chinese broadcasting organizations, the evolving legal framework, and the
implications for domestic broadcasting policies.

4. Balganesh, S. (2017). Intellectual Property Rights and the Regulation of Digital

Broadcasting: Assessing the Case for Reform. Columbia Journal of Law & the Arts,
40(2), 189-231. This article critically assesses the regulation of digital broadcasting
and its impact on intellectual property rights. It examines the legal and policy
frameworks governing broadcasting organizations, explores the challenges posed by
digital technologies, and provides recommendations for reforming the legal
framework to address these challenges.

5. Sundaram, R. (2018). Digital Broadcasting and Media Convergence: Impact on

Traditional Broadcasting in India. Media Asia, 45(1), 47-58. This article focuses on
the implications of digital broadcasting and media convergence on traditional
broadcasting in India. It discusses the changing landscape of broadcasting, the

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 challenges faced by traditional broadcasters, and the need for regulatory reforms to
adapt to the digital age.

6. Bhandari, R., & Kukreti, A. (2020). Regulation of Broadcasting Services in India:

Emerging Challenges and Way Forward. Journal of Intellectual Property Rights,
25(6), 408-417. This study examines the regulation of broadcasting services in India
and the emerging challenges faced by broadcasting organizations. It discusses the
impact of international developments on the Indian broadcasting industry, analyzes
the existing legal framework, and suggests measures to address the evolving needs of
broadcasting regulation.

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 ROLE OF BROADCASTING ORGANIZATIONS-NEED FOR THEIR
PROTECTION

We live in a rapidly changing world where humans have made incredible roads in
development of science and technology. The Broadcasting organizations are also moving
forward in adopting new technology and are finding ways to increase their revenue.
However, with the success and advantages of modern communication there are challenges
plaguing the rights of broadcasting organizations.

When information and entertainment are shared with the public through a variety of channels,
including television, radio, and internet platforms, broadcasting organizations play a critical
role in doing so. To draw viewers and listeners, they devote a lot of resources to developing
original content of the highest calibre. The broadcasting industry’s long-term viability,
however, depends on the copyright of this information being protected. For the sake of their
financial investments and to keep producing and distributing high-quality material,
broadcasting companies require protection from copyright infringement. Without security,
there is a chance that their content would be reproduced or distributed without their consent,
resulting in losses in revenue and lowered incentives to fund new projects.

Thus, it is crucial to give broadcasting organizations legal protection in order to encourage

new ideas and creativity in the sector and to guarantee the public’s continuous access to a
variety of compelling material.

10
 BROADCASTING ORGANIZATIONS- DEFINITION

It is very interesting to note that though over the past few decades Rights of broadcasting
organizations have undergone enormous improvement yet there is no concise and specific
meaning of broadcasting organizations under the present laws. Though the researcher will
dwell in detail about the rights and protection of broadcasting organizations however the
same cannot be fulfilled until one has a clear understanding of the terms Broadcasting,
Broadcasting organizations etc1.

The primary legislation providing for Rights of broadcasting organization in India is the
Copyright Protection Act, 1957. The act under Section 2(d)(d) defines Broadcasting as
Communication to the public

(a) “ by any means of wireless diffusion, whether in any one or more of the forms of
signs, sounds or visual images; or”
(b) “by wire, and includes a re-broadcast.”

Though the act does not defines the broadcasting organizations, it is safe to assume that any
organizations which is broadcasting according to the definition of broadcasting in Copyright
protection act will be known as broadcasting organizations2.

Internationally India is signatory to Berne Convention for the Protection of Literary and
Artistic Works, 1887 which covers Rights to broadcasting organizations. According to Berne
convention broadcasting means, “emission by wireless means, for members of the public.”3
Thus even internationally there is no specific definition however for a conceptual
understanding one can refer to dictionaries such as Webster dictionary which defines
broadcasting organization’s as “to send out or transmit something, such as a program by
means of radio or television or by streaming over the internet”.4

1
Girish Kumar R, Relfi Paul, “Rights of Broadcasting Organizations: Do We Need Legal Reform?”, Indian
Journal of Intellectual Property Law, No.5, 2009, p.7
2
Tarun Jain, “Broadcaster’s Right Under Copyright Law”, Icfai University Journal of
Intellectual Property Rights, Vol. VII, No. 3,2008, p. 9-24.
3
Viviana Munoz Tellez and Andrew Chege Waitara, “A Development analysis of the proposed WIPO Treaty on
the protection of broadcasting and cablecasting organizations”, p.13
4
Andy Oram, “The problem with Webcasting- A case that can be imprisoning” (2006) available at
http://www.oreillynet.com/pub/a/etel/2006/01/13/ theproblemwithwebcasting.html (Last accessed 16 May
2014)., p.1

11
To sum up there is no precise definition of broadcasting organizations in India as well as
internationally however the Copyright Act as well as Berne convention defines broadcasting.
Broadcasting organizations can be Government, Private as well as Individual.5

RIGHTS OF BROADCASTING ORGANIZATION’S IN INDIA

The Copyright Act, 1957 grants specific exclusive rights to broadcasting companies in India.
These privileges include, among others, the ability to publish, disseminate, and reproduce the
content. These exclusive rights shield the financial investment that broadcasting
organizations have made in producing and airing content, which is crucial in influencing
public opinion and distributing information.

The basic motive behind giving protection to Intellectual property is to protect the idea,
innovation and foster the creativity. These rights are meant to giving the due to the hard work
and creativity which is essential for future. The role and extent of broadcasting organizations
have also expanded in recent years from broadcasting news of public importance’s to sports,
Movies and creating new pastures for revenue to the licensee. However, with the
advancement of technology there is an increased threat and overwhelming piracy especially
in low income developing countries. India has a huge mass media industry with an annual
growth of 15% and thus plays a crucial role in providing employment and contributing its
part in economy6.

Thus, it is no surprise that broadcasting was given protection as early as 1957 in Copyright
Protection Act in Chapter VIII. It is however noted that apart from the Copyright act
broadcasting also finds mention in Trade Mark and Cinematography Act where pre
censorship certificate by Censorship Board under Ministry of Information and broadcasting is
mandatory before broadcasting any film and the same has been decided as constitutionally
valid7. Yet substantial protection is given in Copyright Act under Chapter VIII.

It is significant to highlight that these exclusive rights given to broadcasting organisations are
subject to several restrictions and exceptions and are not unqualified. For instance, the
Copyright Act permits the fair use of information protected by copyright for editorial review,
news reporting, teaching, and research. In certain situations, such as when the owner of the

5
Zakir Thomas, “Overview of Changes to the Indian Copyright Law”, Journal of Intellectual Property Rights,
Vol. 17, July 2012, p. 324-334.
6
Paul Goldstein, International Copyright, Principles, Law and Practice, 202, (Oxford University Press, 2001).
7
K.A. Abbas v. Union of India, 1971 AIR 481, 1971 SCR (2) 446

12
copyright refuses to provide a reasonable license, the Act also allows for the forced licensing
of materials protected by a copyright.

The following exclusive rights are granted to broadcasting organizations by the Copyright
Act of 1957:

 Reproduction Right - Section 37:

o Under this right, broadcasting companies are permitted to archive their
broadcast content and use it in various media formats.
o The Delhi High Court determined that the right to broadcast includes the right
to duplicate the aired content in Star India Pvt. Ltd. v. Prasar Bharati & Anr. 8.
According to the court, the exclusive rights given to broadcasting
organisations include the reproduction of content for broadcasting.
 Right of Communication to the Public - Section 31:
o Under this right, broadcasting companies are permitted to make their content
accessible to the general public via a variety of media, including television,
radio, and the internet.
o The Delhi High Court ruled in ESPN Software India Pvt. Ltd. v. TAJ
Television (India) Pvt. Ltd. (2010) that broadcasting companies have the sole
right to disseminate content to the general public, including the right to
broadcast live sporting events. The broadcasting company has the sole
authority to make the content available to the public in real time, the court
said, and any illegal distribution of the content would be a violation of
copyright.
 Distribution Right - Section 14:
o This right permit broadcasting companies to make their material available to
the general public via a variety of channels, including satellite, cable, and the
internet.
o The Supreme Court ruled in Zee Telefilms Ltd. v. Prasar Bharati9 that
broadcasting companies have the sole right to distribute their programming to
the general public. The broadcasting company has the sole right to determine
the method of dissemination, the court ruled, and any illegal distribution of the
information would be a copyright violation.
8
(2015) 6 SCC 614.
9
2004 (93) ECC 553.

13
  Performance Right - Section 38:
o Under this right, broadcasting companies are permitted to present their
broadcasted material live in public settings including theatres, movie theatres,
and sporting events.
o The Delhi High Court ruled in Indian Performing Right Society Ltd. v.
Eastern Indian Motion Pictures Association10 that the public performance of
transmitted content is covered by the exclusive rights given to broadcasting
companies. The court determined that copyright infringement would occur if
the content was performed in public without authorization.

Broadcasting companies also have the right to fees for the use of their content in addition to
these exclusive rights. In certain situations, such as when the copyright owner declines to
license the material on acceptable conditions, Section 31D of the Copyright Act allows for
forced licensing of copyrighted content.

These exclusive rights provided to broadcasting organisations are subject to some restrictions
and exceptions, while they are not unqualified. For instance:

 Fair Use - Section 52(1)(a):

o According to the Copyright Act, it is legal to use copyrighted content for
criticism, reviews, news reporting, teaching, and research.
 Compulsory Licensing - Section 31B:
o The Act permits the licensing of copyrighted content under specific
conditions, such as when the copyright owner declines to provide a reasonable
license.
 Public Interest - Section 52(1)(q):
o The Act permits the use of copyrighted content in the public interest, such as
for news reporting or educational purposes.

10
AIR 1977 SC 1443.

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 RIGHTS OF BROADCASTING ORGANIZATION-INTERNATIONAL
PERSPECTIVE

Though the researcher has referred on the Indian perspective of copyright protection of
broadcasting rights it is imperative to understand the International scenario and compare the
rights as guaranteed by International treaties and leading countries. This will help in holistic
research and comparison to analyze the success and shortcoming under present Copyright
protection act.

RIGHTS OF BROADCASTING ORGANIZATIONS IN US

Just like any other laws it may appear to some that US and in fact Western countries provide
stricter copyright protection but that is not entirely true and there is shortcoming. To surprise
of many United States in the first case is not a party to any of the internationally recognized
conventions such as Rome Convention nor TRIPS agreement. First of all, due to the states
being highly Capitalistic there is a large section of the population that considers broadcasting
rights as anti-Growth which hinders economy and creativity.

Yet there is protection granted in Article 1(8) known as “Copyright Clause”. In United States
only the simultaneous live performance broadcast other than the copyright owner is violate of
the provisions. Hence any person who has recorded any performance and not live telecasted
with the owner will not be violation of copyrights. The broadcasting rights in the states are
covered by a detailed legislation known as US Copyright act of 1970 where the legislators
have differentiated between Publication and Act of Publication.

While it is right that broadcasting will fall in the definition of publication but the act of
publication will only refer when the same rights are transferred to Radio or Television for
broadcasting.

Broadcasting organizations have several exclusive rights under the U.S. Copyright Act,
including the right to reproduce, distribute, and perform their original works of authorship.
Section 106 of the Copyright Act (17 U.S.C. § 106) sets out these exclusive rights, and
Section 101 defines a ‘public performance’ as including ‘transmission of a performance or
display to the public by means of any device or process.,

A significant restriction on the exclusive rights of copyright holders is the fair use doctrine.
The factors that courts consider when deciding whether a particular use is fair use are

15
outlined in Section 107 of the Copyright Act. These factors include the use's purpose and
character, the nature of the copyrighted work, the quantity and quality of the portion used,
and the impact of the use on the copyrighted work's potential market or value. The goal of
fair use is to advance knowledge and the useful arts, according to the Supreme Court, which
has emphasised that the doctrine is flexible and must be assessed on a case-by-case basis.

The Digital Millennium Copyright Act (DMCA) offers internet service providers (such as
broadcasting companies that run websites or applications) safe harbour protection from
copyright infringement by their customers. The requirements for safe harbour protection are
outlined in Section 512 of the Copyright Act. These requirements include appointing a
copyright agent to receive infringement notices, adopting and implementing a policy for
terminating repeat offenders, and immediately removing infringing content after receiving
notification from the copyright owner. The DMCA also offers a takedown notification
procedure that allows copyright holders to ask for the deletion of infringing content.

INTERNATIONAL JUDICIAL DEVELOPMENT IN PROTECTION OF

BROADCASTING RIGHTS

There have been several important copyright cases involving broadcasting organizations in
the United States.

In ABC, Inc. v. Aereo, Inc.11, for instance, the Supreme Court ruled that Aereo was liable for
copyright infringement because it performed copyrighted works in public without the
owners’ consent. Aereo offered a service that allowed subscribers to watch and record
broadcast television programmes over the internet. The Court emphasised that Aereo’s
service could not rely on the ‘private’ performance exemption for delivering performances to
only one viewer at a time since it was ‘substantially similar’ to a cable system rather than just
an equipment provider.

The Ninth Circuit ruled in another case, Fox Television Stations, Inc. v. Aereokiller12, LLC ,
that Aereokiller, a business that offered a service similar to Aereo, was also liable for
copyright infringement because it was not qualified to rely on the "private" performance
exemption.

11
573 U.S. 431 (2014).
12
937 F.3d 1053 (9th Cir. 2019).

16
In the case of Twenty-First Century Music Corp. v. Aiken13 from 1975, a local radio station
was accused of violating copyright after airing an unauthorised live performance of a musical
piece. The radio station’s broadcast was ruled by the court to not be a fair use because it was
done for commercial gain and included a significant amount of the musical piece. The radio
station could have requested permission from the copyright holder to broadcast the
performance, but they chose not to do so, the court further noted.

The US Supreme Court has traditionally upholder the Fair Use Principles and the same came
to discussion in Red Lion Broadcasting Co. v. Federal Communications Commission 14 where
the court held that Radio as well as broadcasting organizations have to give time to matters of
public importance.

In the same way in Information verein Lentia and others v. Austria 15 the ECHR upholder the
principles of Freedom of speech and expression and their co relation to public interest.

RECENT INTERNATIONAL DEVELOPMENT IN RIGHTS OF BROADCASTING

ORGANIZATION

We already had protection of broadcasting rights of organizations covered under various

treaties and conventions such as Berne Convention in 1961, TRIPS Agreement as well as
Satellite convention. However, with changing times and the influence of technology in
dissemination of information it was felt that there was need of increase protection to cope up
with the changing times. There was also a need to calm down the concerns of developing
countries when it comes to rights of broadcasting organizations and the possible conflict
between Exclusive Rights approach and Signal based approach.

The Recent WIPO treaty proposes to solve this complexity and instead of stockpiling to the
already available rights it is concerned with solving the differences between developing and
developed countries when it comes to rights of broadcasting organization.

However, prior to understanding in detail what are the recent changes it is imperative to
understand what is the conflict between Exclusive and Signal based approaches when it
comes to protection to Rights of Broadcasting organizations.

13
422 U.S. 151 (1975).
14
Red Lion Broadcasting Co. v. Federal Communications Commission, 395. US 367 (1969).
15
Information verein Lentia and others v. Austria 28 October 1993, Application No. 13914/88 (European Court
of Human Rights).

17
 EXCLUSIVE RIGHTS VS. SIGNAL BASED APPROACH TO PROTECTION OF
RIGHTS OF BROADCASTING ORGANIZATIONS.

The conflict between these two approaches lies in the fact that they offer different types of
protection for broadcasting organizations. The exclusive approach provides broader
protection for broadcasting organizations by giving them control over the content of their
broadcasts, while the signal-based approach offers more limited protection by focusing solely
on the signals used to transmit these broadcasts.

Some argue that the signal-based approach is more appropriate in the digital age, where it is
easier to intercept and retransmit signals without permission. Others, however, argue that the
exclusive approach is still necessary to protect the content of broadcasts and ensure that
broadcasting organizations are able to control how their content is used and distributed.

Ultimately, the choice between these two approaches will depend on the specific legal and
regulatory frameworks in place in different countries and regions, as well as the preferences
of broadcasting organizations and their audiences.

India is a signatory of TRIPS Agreement as well as Rome Convention in regards to

protection of broadcasting rights and also have amended the Copyright laws in convergence
to these international developments. However, there are concerns of India and developing
countries when it comes to these rights under the treaties which are made most of the time
keeping western countries in mind.

It is self-oblivious that Western countries enjoy high economic prosperity when compared to
their counterparts in East and the same can also be found in publishing of information and its
subsequent broadcasting. The Western countries are the generator of such information while
developing countries act as mostly consumption of these information and in such a way are
dependent on the Western countries. All the previous agreements regarding Broadcasting
Rights followed the Exclusive approach where broadcasters had exclusive right over the
information which created discrimination to countries which were developing and were
mostly consuming such information. India instead preferred the Signal approach where the
signal is protected since the broadcaster is not the creator of such information.

WIPO TREATY AND PROTECTION OF RIGHTS OF BROADCASTING

ORGANIZATIONS

18
Though most of the people will feel that there are already existing sufficient provisions when
it comes to protection of Rights of broadcasting organizations however as explained earlier
all the present treaties followed the Exclusive Rights approach which was inherently
discriminatory to India and developing countries. The two recent treaties were the WIPO
Performers and Phonograms Treaty (WPPT), 1996, provided equitable remuneration for
wireless broadcasting or for any communication to the public of phonograms and WIPO
Copyright Treaty (WCT) 1996.

It was felt that due to advancements of technology and the role of media in shaping the
opinion and changing perspectives and it being essentially the most important part in
disseminating information giving such huge power to corporate organization will
discriminate against poor and not well of people who cannot afford to pay for such
information. Therefore, for once the WIPO treaty was from the perspective of Signal based
and was accommodative of the concerns of developing countries.

The WIPO treaty also strives for a balance between the broadcaster’s rights and Interest of
the General Public. The draft treaty specifically in one of its provisions states that it shall
never act as a road block when it comes to sharing of information and would promote public
interest16. The draft treaty also subsequently discourages practices which are fraudulent and
would disrupt the morals of the industry 17. While it is true that western countries are home to
most no of broadcasting organization it is also a fact that India is the generator of such
information. The WIPO treaty categorically emphasizes on the art and cultural diversity of
countries18 which is going to help India in long run.

Both of the treaties also propose protection to broadcasting rights using Internet and thus
provide answers to the emerging concerns regarding breach of Internet privacy.

16
M Sakhtivel, “Is it Broadcast or Broadcasting?” Journal of Intellectual Property Rights, Vol. 16, January
2011, p.23-26.
17
Sanjay Pandey, “Neighbouring Rights Protection in India”, Journal of Intellectual
Property Rights, Vol. 9, July 2004, p. 356-370.
18
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
(adopted 26 October 1961, w.e.f. 18 May 1964) 496 UNTS 43

19
 CONCLUSION

The WIPO treaty aims to establish a framework for the international defence of broadcasting
organizations’ legal rights, particularly in the age of the internet. The agreement would set
forth basic requirements for safeguarding broadcasting organizations’ exclusive rights to
manage and profit from their broadcasts, including the ability to bar unauthorized
retransmission or reproduction of their content.

The negotiations for the treaty began in 1997 and have been ongoing for over two decades,
with multiple rounds of negotiations and proposals put forward by various countries and
organizations. In 2020, the WIPO General Assembly agreed to convene a diplomatic
conference in 2021 to finalize the text of the treaty.

However, the COVID-19 pandemic has caused delays, and the conference has been
postponed to 2022. The postponement has given negotiators more time to work on the text of
the treaty and resolve outstanding issues, including the scope of the protection to be granted
and the treatment of limitations and exceptions to broadcasting organizations' exclusive
rights.

Categorically speaking the provisions of draft treaty states the Signal based approach by
developing countries including India and is a change from the Exclusive rights approach
which has been undertaken by previous agreements such as TRIPS agreement, Rome
Convention etc. The proposed treaty is celebrated due to its definition of broadcasting
organizations which India under present copyright act does not provides however the same
treaty has not been finalized also tells you lot of the opposition of signal-based approach it is
facing in developed countries.

However, the adoption of a WIPO Broadcasting Organizations Treaty would harmonize the
copyright protection granted to broadcasting organizations by setting minimum standards
internationally. It would be an effective anti-piracy instrument to protect programme-carrying
signals on a global scale.

20
 REFERENCES

1. Sanjay Pandey, “Neighbouring Rights Protection in India”, Journal of Intellectual

Property Rights, Vol. 9, July 2004, p. 356-370.
2. M Sakhtivel, “Is it Broadcast or Broadcasting?” Journal of Intellectual Property Rights,
Vol. 16, January 2011, p.23-26.
3. Girish Kumar R, Relfi Paul, “Rights of Broadcasting Organizations: Do We Need Legal
Reform?”, Indian Journal of Intellectual Property Law, No.5, 2009, p.7
4. Tarun Jain, “Broadcaster’s Right Under Copyright Law”, Icfai University Journal of
5. Intellectual Property Rights, Vol. VII, No. 3,2008, p. 9-24.
6. Viviana Munoz Tellez and Andrew Chege Waitara, “A Development analysis of the
proposed WIPO Treaty on the protection of broadcasting and cablecasting organizations”,
p.13
7. Andy Oram, “The problem with Webcasting- A case that can be imprisoning” (2006)
available at http://www.oreillynet.com/pub/a/etel/2006/01/13/
theproblemwithwebcasting.html (Last accessed 16 May 2014)., p.1
8. Zakir Thomas, “Overview of Changes to the Indian Copyright Law”, Journal of
9. Intellectual Property Rights, Vol. 17, July 2012, p. 324-334.
10. Paul Goldstein, International Copyright, Principles, Law and Practice, 202, (Oxford
University Press, 2001).

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