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Problem Details
Title
Problem By joginipally rao
Content

 MOOT PROBLEM

1. Prasar Bharati is a corporation established under the Prasar Bharati (Broadcasting

Corporation of India) Act, 1990. Being the public broadcaster of India, it is under a

duty to promote national integration by telecasting events of national importance

with respect to current events, cultural programmes and sporting events. Being the

only entity that operates a terrestrial network in India with the infrastructure to

support two channels, it is an indispensable source of information and entertainment

especially in rural areas. Prasar Bharati also operates various national and regional

satellite-based television channels, in addition to being the first to introduce Direct-

To-Home (DTH) television.

2. Terrestrial network means the land-based transmission of signals from tower-to-

tower. Satellite network involves uplinking of signals to a specific band on a satellite

which then beams down the signals and are picked up dish antennas. DTH network

is also a satellite-based system where a subscriber receives signals directly from the

satellite to his television set without the need for any intermediary. Prasar Bharati

adopts a dual mode of transmission of Doordarshan channels, by which these signals

apart from being transmitted from tower-to-tower are also uplinked to a satellite, and

when those signals are beamed down, they are picked up by TV towers as well as by

other dish antennas including those operated by private cable operators.

3. Nebula Media Ltd. (Nebula) is a company incorporated under the Companies Act,

1956. The majority shareholding of the company vests with Indian citizens, and the

object of the company is to broadcast sporting events and other activities related thereto. To this end, Nebula runs a premier sports channel under the name and style

of Pinnacle Sports.

4. The Board of Control for Cricket in India (BCCI) is a society registered under the

Societies Registration Act, 1860 as the single national governing body for all cricket

in India. It is headquartered in Mumbai.

5. Nebula has been granted an exclusive licence by the BCCI under a Media Rights

Agreement for telecast within the territory of India, of all cricket matches involving

India, and to be played in India for a period of five years from August 2005 to July

2010. Under the said Agreement, ‘Media Rights’ means and includes, without

limitation, rights of transmission through all means including:

Terrestrial Transmission;

Satellite Transmission;

Cable Transmission;

Broadband Internet Transmission.

6. The Media Rights (or any part thereof) may be exercised on a live, delayed or repeat

basis. The channel has shelled out an unprecedented sum of Rs. 2800 crores as

contracted amount payable in consideration of said Media Rights, which was

considerably higher than the Rs. 400 crores which Prasar Bharati, the previous

rights-holder had paid. Similar agreements have been entered into with other

channels for Media Rights in other countries. 7. In December 2005, a public interest litigation was filed before the Bombay High

Court seeking a direction to the content rights holder to share the live feed of the

upcoming cricket series between India and Pakistan with Doordarshan in order to

enable viewers who would otherwise have been unable to view cable television or

DTH. The High Court was pleased to allow the petition and directed Nebula to share

live feed with Doordarshan.

8. In March, 2006, another writ petition was filed before the Delhi High Court by

Prasar Bharati claiming that as the public broadcaster, it was under a duty to carry

events of ‘national importance’ on Doordarshan and must therefore be granted live

feed of the upcoming cricket series between India and Australia. Nebula vehemently

opposed the petition on the ground that such unrequited interference with the

commercial interests of the company would amount to an infringement of its

fundamental rights under Article 19(1)(g) and Article 14 read with Article 300A of

the Constitution. The Court after hearing the parties, struck a balance between

Nebula’s interests and the public interest by directing Nebula to share the feed with

Doordarshan who shall telecast the matches with a time-delay of 7 minutes.

9. A motion was introduced in Parliament at this point, that legislation be enacted

making it mandatory for all sports content rights holders in India to compulsorily

share live feed of sporting events of national importance with Prasar Bharati to

enable it to retransmit the same on its terrestrial and DTH networks. The bill was

enacted into law, and the Sports Broadcasting Signals (Mandatory Sharing with

Prasar Bharati) Act, 2007 came into existence.

10.  perators, all

had free access to live feed of the cricket matches.

11.The result of the above-mentioned sequence of events was that Nebula suffered aPursuant to the

enactment of the Sports Broadcasting Signals (Mandatory Sharing

with Prasar Bharati) Act, 2007, Prasar Bharati receives encrypted ‘live clean feed’ of

the cricket matches from Nebula, decrypts the same, inserts its logo, advertisements

and intermittent Hindi commentary, and transmits these signals via its terrestrial

network as well as uplinks them to two separate bands on its satellite, one meant for

DTH viewers and the other for TV towers and dish antennas. Prasar Bharati does not

encrypt these signals or utilize any other form of content protection while

transmitting them via its satellites. Thus, viewers of terrestrial network,

Doordarshan’s DTH viewers, private cable operators and private DTH o

serious commercial setback in respect of its projected growth and revenue. A

satellite television channel generally earns revenue both from subscription and

advertising. Subscribers are to pay monthly/periodical subscription fees to have

access to the signals of the channel. Terrestrial television channel generate revenue

only from advertisers. Also, the revenue from subscription generally outweighs the

revenue from advertising by as much as five times. Nebula suffered serious losses on

account of the fact that there were no takers for its channel and being a new channel,

creating a subscriber base was a key aspect of its commercial operations. 12.In these circumstances, Nebula sent a legal notice through its lawyer to Prasar

Bharati stating that:

Live feed is shared under Sports Act for a limited purpose, viz for

transmission for terrestrial viewers and Doordarshan’s DTH subscribers.

Under the present position however, everybody including private cable

operators and private DTH subscribers have free access to the matches shown

on Doordarshan.

Such unrestricted distribution of copyrighted material belonging to Nebula is

in violation of Nebula’s rights.

The notice thus called for Prasar Bharati to either encrypt its satellite transmission

during the period of telecast of the cricket matches obtained from Nebula, in order to

restrict access only to terrestrial network and Doordarshan DTH viewers and prevent

access by cable operators and private DTH operators, or in the alternative, to induce

a time-delay of 20 minutes in its broadcast.

13.Prasar Bharati replied through their counsel as follows:

Prasar Bharati is not obliged to encrypt signals under the law.

In any event, encryption would incur an additional strain on the public

exchequer, as decoders would need to be installed at each of Doordarshan’s

TV towers, and the same is unwarranted to protect Nebula’s bottom-lines.

In view of the Cable Television Networks (Regulation) Act, 1995 and the

Notification issued by Prasar Bharati in exercise of powers conferred by

section 8(1) read with section 8(3) of the said Act, it is mandatory for all cable

operators to receive Doordarshan channels from satellite and retransmit them on prime band in satellite mode. Similarly, private DTH service providers are

obliged under DTH Licensing Regulations, to carry signals of three

Doordarshan channels as notified by Prasar Bharati from time to time.

Therefore, encryption would defeat and frustrate the object of Cable Act and

the Licensing Regulations, and make it impossible for cable and DTH

operators to discharge the duty cast on them under their governing laws.

14.In the meantime, BCCI had also been receiving complaints from its licensees in

neighbouring territories with regard to the unencrypted signal overspill of

Doordarshan.

15.Aggrieved by these events, Nebula requested its lawyers to take appropriate legal

recourse. It also requested them to obtain such interim measures of protection as

would be necessary to protect its commercial interests particularly in view of the

Cricket World Cup to be co-hosted by BCCI which is due to start on 23 February,

2009. BCCI also felt that its interests would be better served by supporting the cause

of Nebula and for this purpose has entered into an arrangement with Nebula to join it

in its legal battle by engaging the same lawyer.

16.The High Court of Karnataka has been pleased to admit the writ petition filed on

behalf of Nebula and BCCI, and has issued notice to Prasar Bharati and the Union of

India. The Government of India has also requested the Standing Counsel of Prasar

Bharati to represent it in these proceedings. Pleadings have been completed and the matter is now listed for final disposal. The Court has clarified that orders on the

interim applications would be passed immediately while judgment would be reserved

on the main petition, although the hearings would be taken up jointly.

Disclaimer: All names, trademarks and descriptions of persons or entities in the above

moot problem have been used solely for educational purposes. Their use does not

constitute any association or contract between the respective owners and the

organizers of the moot. The organisers hope that it does not amount to infringement

either!

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