Under this article we will see the broadcasting rights in United States and United Kingdom.
BROADCASTER’S RIGHT IN UNITED STATES:
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HISTORICAL SETTING
The constitution of the US itself provides the provision for the protection of intellectual property this clause is also known as the “Copyright Clause.” Which states that the Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discovering[1]”. The Copyright Act of US came into force from 1st January, 1978.
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NEED FOR FIXATION
The protection of the live broadcasting which is transmitted to the public at large in unfixed form, a special provision if there in Act which states that “a work consisting of sound, images, or both that are being transmitted is ‘fixed’ if a fixation of the work is being made simultaneously with its transmission”[2]. So it can be interpreted that the Act only protect the situation where one re-transmits or copies a live broadcast off the air unauthorized if the copyright owner has simultaneously fixed the broadcast.[3] Instances where live performances are recorded but not transmitted are not protected, since it is the simultaneous occurrence of recording and transmission of live broadcast, which is protected[4]. The Act of 1976 is that the distribution of copies of a motion picture to television stations for broadcast purposes is considered as an act of publication[5] while broadcasting per se is merely a performance and hence is not an action of publication.
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RIGHTS OF BROADCASTERS
In US copyright owner’s exclusive right to reproduce the work in copies or in phono-records is limited by the provision which allow them to make ‘ephemeral recording’[6]. Which means that the broadcaster who has right to broadcast the program can do recording of the same. But this right is provided with limitation that the privilege of making ephemeral recordings extends only to broadcasters who use the copy within their local service area. When the secondary transmission fails to satisfy the conditions for a compulsory license and therefore constitutes an infringement of the copyright in the work. Thus, beside the legal owner of the copyright, the broadcaster also acquires the right to sue for the infringement caused by the secondary transmission[7] However it is to be noted that the standing to sue is limited as the secondary transmission must occur within the local service area of that television station[8].
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EXCEPTION OF COMPULSORY LICENSING
Wherever the copyright owner of a non-dramatic musical composition authorizes the public distribution in the United States of phono-records embodying that musical composition, any other person may, by complying with the statutory provisions, in effect, compel the copyright owner to license, or permit, the making and distribution of other phono-records embodying such musical composition.[9]
BROADCASTER’S RIGHT IN UNITED KINGDOM:
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STATUTORY AMBIT :
For the first time ever under the Copyright, Patents and Designs Act, as enacted in 1988 gives certain rights to the broadcaster regarding the use of the copyright work and protected performance.[10]
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RIGHTS UNDER 1988 ACT
- Fair dealing exception available on sound recordings and films[11] – The Act of 1988 for the first time allowed the applicability of the exception of fair dealing on films and sound recording wherein there was no such provision under the earlier 1956 Act. Thus, broadcasters acquired the right to broadcast excerpts of films and sound recordings without violating the copyright in them[12].
- Right to broadcast artistic works on public display[13] – This provision comes as a welcome relief to broadcasters as it provides that the copyright in (i) buildings and (ii) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public, will not be infringed by making a film of them or broadcasting a visual image of them. Thus, an incidental or a deliberate inclusion of a copyright protected work in a broadcast is allowed under the British law.
- Right against fraudulent reception – under sec.297 of the Act it made the fraudulent reception as criminal liability whereas under sec 298 it is said that the dealing in equipment or publishing of information to enable unauthorised reception will be consider as civil wrong.
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RIGHTS UNDER BROADCASTING ACT 1990
The 1990 act strengthened the provision in 1988 Act and provided for statutory licence to broadcast sound recording upon payment of equitable remuneration wherein the owner of the copyright in the recording refused to grant a licence to broadcast the same. Also, in the 1990 Act made it criminal offence that to make, sell, or let for hire an unauthorised decoder. Whereas the 1996 amendment added that offences of offering, exposing or advertising these decoders for sale or hire, and increasing the penalties for offences.
Besides the above two Acts, the Directives of the European Commission in respect to copyright also provide significant rights and protection to broadcasters.as; (i) The Satellite Broadcasting and Cable Retransmission Directive[14], adopting a ‘Emission Theory’ of broadcasting provides that the broadcaster is not required to require to get his rights cleared in all territories where the transmission reaches . Thus, within the territorial dimensions of EC the broadcaster is provided rights of protection in all the countries if he gets registered in the place of broadcast origin. (ii) Under Article 10 of the same Directive, broadcasters are not required to obtain cable retransmission rights separately in each. Thus, single clearance from copyright owner made possible to broadcast it over world. (iii) The same directive requires the member states to grant broadcasting organisations the exclusive right to fix their broadcasts, “whether these broadcasts are transmitted by wire or over the air, including by cable or satellite,”[15] as well as to “reproduce these fixations, directly or indirectly”[16]. The Directive also requires the grant of public re-broadcast and communication rights[17] and public distribution rights[18] to the broadcasters.
Conclusion
The US copyright setup offers minimal protection to broadcasters as compare to the other countries. This is often aggravated by the particular incontrovertible fact that U.S. isn’t party to Rome Convention or TRIPS Agreement and is in clear opposition to the proposed WIPO treaty. Thus, we’ll conclude that although first glance leaves an impression that US has a rigid setup relative to India but reality suggests a distinct picture. Indian copyright law guarantees numerous rights to broadcasters, which the US system lacks. The broadcasting right offer under UK and India are more or less same because the copyright act of India springs from English common law. But the United Kingdom have its own broadcasting act which mainly deals with the rights and therefore the issues associated with the broadcasting. So here it also indicates that India need the special law or rules which can exhaustively deals with broadcasting. With comparing to all the country, the US has better laws and regulation regarding the broadcasting followed by UK.
[1] Article 1(8) of Constitution of the US.
[2] 17 USCS § 101. Therefore, under this provision, if a live radio or television broadcast is simultaneously recorded, it is considered as ‘fixed’ and such live broadcasts are protected.
[3] https://www.researchgate.net/publication/228171723_Broadcaster’s_Right_Under_Copyright_Law. .( lastly accessed on 30/05/2020)
[4] Paul Goldstein, International Copyright, Principles, Law and Practice, 202, (Oxford University Press, 2001).
[5] 17 USCS § 101.
[6] 17 USCS § 112 (e). Though not defined under the statute, the term ‘ephemeral recordings’ is commonly used to mean copies or phono-records of a work made for the purpose of later transmission by a broadcasting organisation legally entitled to transmit the work.
[7] 17 USCS § 123, § 119.
[8] 17 USCS § 501 (c).
[9] 17 USCS § 115.
[10] Section 6 of the 1988 Act defined broadcast as follows; Sec. 6(1) In this part a ‘broadcast’ means a transmission by wireless telegraphy or visual images, sounds or other information which- (a) is capable of being lawfully received by members of the public, or (b) is transmitted for presentation to members of the public; and references to broadcasting shall be construed accordingly.
[11] Supra 11.
[12] Sec.30 of Copyright, Patents and Designs Act 1988 and also this provision has been explained and given an extended meaning are;
– Rickless v. United Artists Corporation, [1988] QB 40
– BBC v. British Satellite Broadcasting Ltd., [1992] Ch. 141.
[13] Section 62 of the Copyright, Patents and Designs Act.
[14] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31993L0083 93/83/EEC Art. 1.2(b). .( lastly accessed on 31/05/2020)
[15] Article 6(2) of the Act.
[16] Article 7(1) of the Act.
[17] Article 8(3) of the Act.
[18] Article 9(1) of the Act.
Author: Amey Jadhav,
Maharashtra National Law University, Aurangabad / 1ST year
