Transcript Standing Committee on Copyright And Related Rights Eighteenth Session Geneva, May 25 to 29, 2009 Information Meeting on Developments in Broadcasting Presented by A.

Standing Committee on Copyright And Related Rights
Eighteenth Session
Geneva, May 25 to 29, 2009
Information Meeting on Developments in Broadcasting
Presented by
A. Mohan
Executive Vice President
Zee Network, India
[email protected]
This presentation depicts the personal views of the
speaker and should not be treated as the views of the
Company.
2
Overview of Indian Broadcasting Scenario
 Indian Broadcasting Industry - largest in Asia.
 >300 channels of different genres viz.
entertainment, movies, news & current affairs,
sports, music, religious, infotainment are
available over Indian Sky.
 Channels in different languages are also
available to cater to the requirements of
regional viewers viz. Tamil, Telgu, Marathi,
Punjabi, etc.
 In Radio segment besides All India Radio (AIR),
city specific licenses have been given for FM
Radio channels e.g. Red FM, Radio Mirchi, Big
FM, Radio City, etc.
3
Structure of Television Broadcasting Industry
4
Overview of Indian Broadcasting Scenario
M&E Industry
(US$ Billion)
2008
2013 P
CAGR %
(2009-13)
TV
5.01
9.85
14.5%
Print
3.60
5.54
9.0%
Film
2.28
3.51
9.1%
Radio
0.18
0.34
14.2%
Music
0.15
0.22
8.0%
Animation
0.36
0.82
17.8%
Gaming
0.14
0.57
33.3%
Internet Ad.
0.13
0.45
27.9%
Outdoor
0.34
0.61
12.8%
Total Size
12.17
21.92
12.5%
Sources: Group M, KPMG Interviews, KPMG Analysis
 Over 16 Major Teleports ( Uplink and DTH)
 150+ channels uplinked out of India.
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Sources: Group M, KPMG Interviews, KPMG Analysis
6
7
Sources: Group M, KPMG Interviews, KPMG Analysis
BROADCASTING
Terrestrial – under exclusive domain
of Parsar Bharti - Public broadcaster
Doordarshan beaming about 28 no.
of channels started transmission in
1959.
TV Industry
(US$ bn)
2008 E
2013 P
CAGR
(2009-13)
Subs.
Revenues
3.29
6.61
14.9%
Ad.
Revenues
1.72
3.24
13.5%
Total
Industry
Size
5.01
9.85
14.5%
 Satellite –
 Free To Air Channels – source of revenue -
advertisements
 Pay Channels (subscription based) e.g. Zee
TV, Star, Sony, ESPN, CN, etc. – source of
revenue – subscriptions & advertisements
 In analogue mode pay channels are
encrypted upto MSO/LCO and thereafter
delivered to subscriber in FTA mode
through a single pipe.
 In digital delivery like DTH & CAS pay
channels are delivered in encrypted mode
and are decrypted through STB at
subscribers premises.
 Video channels through cable
 Mainly transmitted by MSOs and cable
operators at local level through cable
networks.
8
FDI Limits in Broadcasting Industry
Sl.
No.
Segment
Existing limit
Entry
Route
Recommended
limit by TRAI
1.
Teleport (Hub)
49% (FDI+FII)
FIPB
74% (FDI+FII)
2.
DTH
49% (FDI+FII)
FDI not to exceed
20%
FIPB
74% (FDI+FII)
3.
Satellite Radio
No Policy as on date
FIPB
74% (FDI+FII)
4.
HITS
No Policy as on date
FIPB
74% (FDI+FII)
5.
Cable Network
49% (FDI + FII)
FIPB
49% (FDI+FII)
6.
FM Radio
20% (FDI + FII)
FIPB
49% (FDI+FII)
7.
TV Channels
(News & Current
Affairs channel)
26% (FDI + FII)
FIPB
49% (FDI+FII)
Remarks
In Carriage segment of
broadcasting sector i.e.
cable TV, DTH, HITS,
teleport, mobile TV etc.
foreign investment up to 49
percent should be on the
automatic route and above
49% through FIPB .
However for content
segment FIPB approval
would be required
Press Note no.2 (2009 Series) – DIPP, Ministry of commerce & Industry, GOI
5.2 Counting of Indirect foreign Investment

The foreign investment through the investing Indian company would be considered for calculation of
the indirect foreign investment if the investing company is owned or controlled by ‘non resident
entities’ and in such an event the entire investment by the investing company into the subject Indian
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Company would be considered as indirect foreign investment.
Uplinking & Downlinking Guidelines of MIB
Uplinking Guidelines
 Setting up of Uplinking hub/ teleport
 A company registered in India under the Companies Act, 1956.
 The foreign equity holding including NRI/OCB/PIO should not exceed 49%
should meet prescribed minimum Net Worth criteria, pay fee as per number of
channels capacity.
 The applicant company shall obtain registration for each channel, in accordance with
the procedure laid down under the Downlinking Guidelines notified by the Ministry
of Information & Broadcasting separately.

 Uplinking of non-news and current affairs channel
 The applicant company, irrespective of its ownership, equity structure or
management control, would be eligible to seek permission, should meet the
prescribed minimum Net Worth criteria , pay fee as per number of channels
capacity.
 Uplinking of news and current affairs channel
 Foreign Equity holding including FDI/FII/NRI investments should not exceed 26% of
the Paid Up equity of the applicant company, should meet prescribed minimum Net
Worth criteria, pay fee as per number of channels capacity.
 At least 3/4th of the Directors on the Board of Directors of the company and all key
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Executives and Editorial staff shall be resident Indians
Uplinking & Downlinking Guidelines
Downlinking Guidelines:
 The entity uplinking from abroad must be a company registered in India under the
Indian Companies Act, 1956, irrespective of its equity structure, foreign ownership or
management control and must have a commercial presence in India with its principal
place of business in India
 Must either own the channel it wants downlinked for public viewing, or must enjoy,
for the territory of India, exclusive marketing/ distribution rights for the same and
authority to conclude contracts on behalf of the channel for advertisements,
subscription and programme content.
 The applicant company should meet the minimum net worth criteria .
 Shall adhere to any other Code/Standards guidelines/restrictions prescribed by MIB,
GOI for regulation of content on TV channels from time to time.
 No News and Current Affairs channel shall be permitted to be downlinked if it does
not meet the following additional conditions:
 That it does not carry any advertisements aimed at Indian viewers;
 That it is not designed specifically for Indian audiences;
 That it is a standard international channel;
 That it has been permitted to be telecast in the country of its uplinking by the
regulatory authority of that country
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Future - Multiple layers of Convergence
YESTERDAY
TODAY
(Silos into the home)
(Convergence of services,
networks & devices)
12
Digitalization in India!
USA, Europe
• Refers to Terrestrial
Transmissions going Digital (DTV)
• Cables and DTH have been digital
for long time
• IPTV is a new technology along
with DTV
India
• Commonly refers to Digital cable
or DTH
• Cables are mostly Analog
• CAS implemented in notified
areas of certain metros.
• TRAI has recommended extension
of CAS in 55 cities.
• IPTV is an emerging technology
• Terrestrial Broadcasting is the
exclusive domain of DD
• Digitalisation addresses the issue
of piracy and under declaration
13
Piracy Issues in Broadcasting
Forms:
• Illegal decoders
• Other Decrypting technology
• Use of decoders over more than the authorized area
• Hacking of smart cards
• Hacking/tapping of pre-broadcast signals
• Lack of addressability – Under-declaration by Cable operators
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Piracy Components
Source: CASBAA – Digital Deployment – Asia Pacific Pay-TV Industry Study, October, 2008
15
Cost of Piracy
Source : CASBAA – Digital Deployment – Asia Pacific Pay-TV Industry Study, October, 2008
16
County
Piracy Type
Australia
Individual Connections
Individual Connections
Satellite Overspill
Individual Connections
Grey Market Estimation
Individual Connections
Illegal Distributors
Illegal Distributors
Individual Connections
Satellite Overspill
Illegal Distributors
Illegal Distributors
Individual Connections
Subscriber Under-declaration
Individual Connections
Illegal Distributors
Individual Connections
Subscriber Under-declaration
Illegal Distributors
Individual Connections
Satellite Overspill
Individual Connections/Overspill
Subscriber Under-declaration
Hong Kong
India
Indonesia
Macau
Malaysia
Pakistan
Philippines
Singapore
Taiwan
Thiland
Vietnam
Net Piracy Cost
2007 (US$ Mill.)
37.80
26.41
1.05
19.20
965.52
8.91
27.72
13.18
1.83
2.36
110.40
24.19
46.08
14.69
1.87
10.31
37.13
151.58
19.45
8.61
10.21
Net Piracy Cost
2008 (US$ Mill.)
36.12
19.59
1.72
20.74
1121.92
5.83
27.20
14.15
2.35
2.48
126.58
24.57
49.79
20.12
2.30
9.96
35.11
35.86
162.53
14.54
7.16
5.90
7.17
Source : CASBAA – Digital Deployment – Asia Pacific Pay-TV Industry Study, October, 2008
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Tax Cost of Piracy
 At least US$238 million is being lost annually to regional
government purses
 Losses comprise:
 Corporate profits tax: US$181 million
 VAT/GST: US$56 million
 The main governments losing out are:
 Thailand US$66 million
 Pakistan US$65 million
 Philippines US$44 million
 Taiwan US$25 million
 Australia US$14 million
Source: PricewaterhouseCoopers
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Types of Piracy
• Smuggling of decoders from other countries into India
• Decoders from India taken to other countries
• Hacking of smart cards software
• Hacking/tapping of pre-broadcast signals
• Manufacture of decoders or other decrypting technology
– boxes are sold on large scale.
• Cable operators extending beyond area of distribution
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Example ; Zee’s connectivity
Indian
broadcasters
have large
EUROPE
10,099,404
Homes
AMERICA
viewership
MENAP
577,281
APAC
40,931,416
Homes
5,447,523
across
Homes
Homes
continents also
AFRICA
because of
INDIA
180,254
72,000,000
Homes
Homes
popularity of
their content
not only
amongst
Indians but also
The Largest Indian Television Network in the world
amongst global
28 domestic channels, 18 international channels, across 167 countries, over 500 million homes
viewers.
MENAT – Middle East, North Africa & Pakistan
APAC – Asia Pacific
20
Example ; Zee’s connectivity
AMERICA
577,281
Homes
EUROPE
10,099,404
Homes
MENAP
40,931,416
Homes
AFRICA
180,254
Homes
APAC
5,447,523
Homes
INDIA
72,000,000
Homes
Areas covered
• Africa
• S.E.Asia
• India
• Pakistan
• Gulf region
• UK/Parts of
Europe
• USA
• Canada
The Largest Indian Television Network in the world
28 domestic channels, 18 international channels, across 167 countries, over 500 million homes
MENAT – Middle East, North Africa & Pakistan
APAC – Asia Pacific
21
Example ; Zee’s connectivity
AMERICA
577,281
Homes
EUROPE
10,099,404
Homes
MENAP
40,931,416
Homes
AFRICA
180,254
Homes
APAC
5,447,523
Homes
INDIA
72,000,000
Homes
Main areas of piracy
• Gulf region
• Pakistan
• Parts of Europe
• Parts of USA
• Africa
• Countries like
Malaysia,
Thailand etc.,
The Largest Indian Television Network in the world
28 domestic channels, 18 international channels, across 167 countries, over 500 million homes
MENAT – Middle East, North Africa & Pakistan
APAC – Asia Pacific
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Present legal Position
Protection & Regulation of Broadcasters
• Uplinking & Downlinking Guidelines;
• Content regulated by MIB. Programming and advertisement codes laid
down. All service providers are bound by the codes.
• Copyright Act, 1957;
• Cable Television Networks (Regulation) Act, 1995 (CTN Act, 1995)
• The Sports Broadcasting Signal (Mandatory Sharing With Prasar Bharti)
Act 2007
• Telecom Regulatory Authority of India Act, 1997 & Regulations framed
there under; (TRAI)
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Copyright Act 1957
•
•
•
•
•
•
As per the amendment introduced in the year 1995, Section 37 of the Act provides
that every Broadcasting organization shall have a special right to be known as
“Broadcast Reproduction Right” in respect of its broadcast.
Section 2(dd) – “Broadcast” means communication to the public –
I.
By any means of wireless diffusion, whether in any one or more of the forms
of signs, sounds or visual images; or
II. By wire; and includes a re-broadcast
Section 2(b) of the CTN Act, 1995 – “Cable Services” means the transmission by
cables of programmes including re-transmission by cable of any broadcast
television signals.
Section 2(g) of CTN Act, 1995 – “Programme” means any television broadcast and
include exhibition of films, features, dramas, advertisement and serials through
video cassette recorders or video cassette players.
Rule 6(3) of the CTN Rules, 1994 – No cable operator shall carry or include in his
cable service any programme in respect of which copyright subsists under the
Copyright Act, 1957 unless he has been granted a licence by owners of copyright
under that Act in respect of such programme.
Thus the broadcast through retransmission by wire is protected by Indian Law which
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still is an unresolved issue in the context of WIPO Treaty
Copyright Act, 1957
•
•
Fixation -Not specifically defined
Sec.37 (3) – Making sound recording or visual recording is illegal Sound Recording is
very broadly defined
• A recording of sounds from which sounds may be produced regardless of the
medium on which such recording is made or the method by which the sounds are
produced.
• Ref. to defn of “Broadcast” & Sec.14 (reproduction by electronic means is the excl.
right of the owner)
Fair Use
• Provisions contained in Sec.52 of the Act -In addition to all the other provisions of
Fair Use viz., Fair dealing for private use including
– Research,
– Criticism,
– to make back-up copies for studying interoperability of comp. programmes,
– for reporting current events, etc.,
– Making of ephemeral recordings is not infringement
– Use for an official ceremony by the Government or in a religious ceremony.
• Sec.39A – Every broadcast has to be with the license of the owner of the work that
is being broadcast. License to reproduce the broadcast also requires license of the
owner. Statute therefore recognizes and gives supremacy to the owner of the
content.
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Issues in the context of proposed WIPO Treaty
 As per the extant position the protection to the broadcaster is mainly through
Rome Convention, 1961 and Article 14(3) of TRIPS Agreement, 1995, which
inter alia include the right to prevent fixation of broadcast.
 Protection granted only to signals and not to the content carried in the
signals. Moreover the protection is in respect of only live signals. Prebroadcast signals not covered.
Proposed Treaty – Informal Paper dt.3/11/2008 prepared by Chairman-SCCR Unresolved issues:
 Signal Based approach :
 Protection only to live signals or even to post fixation activities?
 Objectives – Protection of signal from misuse:
 Protection of investment confined only based on the terms of contract –
i.e., the medium of transmission authorized or even beyond – any type of
unauthorized use through any medium
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Contd…..
 Scope – What is to be covered?
 Nature – whether it covers only protection of the signals before and during
transmission or even transmission of content after fixation – post fixation rights?
 Whether it cover public domain content?
 Relationship with the rights of content creators & performers’ – rights not to be
infringed and scope covered only based on express terms of the contract between
the content creator and broadcasting organization.
 Communication to public other than through TV – mobile, computer, etc.
 Object – what is the meaning of “broadcast”?
 Confined to signal or also to content carrying signal
 Whether technology specific or neutral specially in the context of digital technology
and convergence
 Meaning of - retransmission - re-broadcast
 Confined only to simultaneous broadcast including deferred based on time zones?
 Confined only to the medium of traditional broadcasting and not internet based?
 Cover even post fixation transmission leading to post-fixation rights?
 Rebroadcast by wire – cable & internet
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Source : Protection of Broadcasting Organisation : Unresolved issues before WIPO by Prof. (Dr.) N.S.Gopalakrishnan
TRAI Act, 1997
Regulator:
 By notification dt.9.1.2004, TRAI who had been regulating
telecommunication services was also entrusted with the Regulation of
Cable & Broadcasting sector by including these services in
“Telecommunication Services”
 TRAI has issued series of Regulations for regulating the sector. The main
regulation dt.10.12.2004 elaborately defines the terms “Broadcasters” and
distributor of channels viz. “Cable Operators”, “DTH Operators” & “IPTV
Operators” as also the broadcasting services & cable services.
Adjudicator:
 Telecom Disputes Settlement and Appellate Tribunal - a specialized sector
tribunal - adjudicates disputes between two or more service providers.
 Appeals against the orders of TDSAT directly lies with Supreme Court of
India
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Broadcasting Services – categorized as Essential Services
Hon’ble TDSAT in its judgment dt.
27/02/2007 in Case of Set Discovery
Vs. TRAI & others has observed as
under:
“Cable broadcasting may not be an essential commodity in
the sense that it is not an item of food without which one
cannot survive, yet looking to the figures of TV viewership in
this country its importance cannot be underestimated.
Available figures suggest a TV viewership of 68 million for the
whole country. This shows that television viewing has almost
attained the status of an essential service in this country.”
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Thank You