HC order dismissing Amazon's plea to protect media rights regressive, say experts

While this judgement will discourage entertainment companies from investing in content acquisition, it teaches the rights holders the right way to deal with Prasar Bharati

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HC order dismissing Amazon's plea to protect media rights regressive, say experts

The Delhi High Court on Friday rejected a petition by Amazon Seller Services Pvt Ltd against the TDSAT order allowing all private cable and DTH operators to re-transmit the ongoing India-New Zealand cricket series shared by it with Prasar Bharati.

Exclusive rights holder of the New Zealand cricket rights, Amazon’s petition in the High Court alleged dilution of its exclusive media rights.

Industry experts call the interim judgement of TDSAT followed by HC upholding the order a regressive step for content owners.

“It will set a bad precedent for any company who is eying growth on the back of any exclusive content, especially in sports,” said an industry veteran.

In its detailed order, a copy of which is with, High Court said that this court is of the considered opinion that the restriction on re-transmission of content that may be obtained by Prasar Bharati only on its terrestrial and DTH networks would have applied only if the content itself had been expropriated in the exercise of powers conferred by Section 3 of the 2007 Act.

“It becomes pertinent to note that the content in respect of which the present dispute has arisen has undisputedly not been acquired by Prasar Bharati in the exercise of its expropriatory power as enshrined in Section 3 of the 2007 Act,” the order said.

What went wrong

The original Sports Act was enacted 15 years back in 2007 and now we are in 2022. The intent of the act was to give access to a large audience and at that time only 10% of people had cable and DTH connections.

Cut to today, Doordarshan's share is almost negligible.

Also, the act clearly lays out that Doordarshan will be telecast only on DD terrestrial and DD Freedish.

The matter also involves Section 8 of the Cable Television Act which is conflicting with Section 3 of the Sports Act.

Section 8 of the Cable TV Act says that the 26 notified channels of DD have to be mandatorily carried by all the DPOs.

Supreme Court ruled in favour of Star India in the matter between Star India and Prasar Bharati because Sports Act is expropriatory in nature. It mandates live sports feed sharing with the pubcaster for the public good.

“In that case, it should be given to a targeted audience,” said the industry veteran.

“But because of Section 8 of the Cable TV Act, Prasar Bharati has to make it available across all the platforms. This makes DD Sports available on all the cable and DTH networks and results in value erosion for any rights holder. And, Star India’s case was against Section 8,” the veteran added.

After the 2013 judgement of the Supreme Court in the Star India vs Prasar Bharat matter, DD Sports was split into two channels.

The channel carrying “Live matches” under Sports Act was only telecast on DD Freedish and DD terrestrial. Whereas, DD Sports showing non-live matches were given to cable and DTH platforms under Section 8 of the Cable TV Act.

Earlier this year, Dream 11 acquired West Indies cricket rights which they were showing on the FanCode app. It set the wrong precedence by negotiating with DD outside Sports Act.

“The mandatory sharing for live feed with Doordarshan under Sports Act comes into effect if it is being shown on any channel. In the case of Dream11 and Prime Video, non of them have television channels. Legally they were not bound to share the live feed with DD,” said an industry expert.

The difference between Dream11 and Prime Video contracts is that Dream11 did not say DD has to telecast the live matches only on DD Freedish and DD terrestrial.

Prime Video’s contract drew attention and gave an opportunity to Dish TV and Siti Cable to approach TDSAT which traditionally favours cable operators.

When Dream11 offered the live feed to DD, they let it be on all the platforms. This way, they secured the revenue share with DD. And no one had any objection at that time.

“Both Prasar Bharati and Amazon should have stuck to the provisions under Sports Act. If the feeds were shared under Section 3 of the Sports Act, DD would have the right to telecast the matches only on DD Freedish and DD terrestrial. But the contract is outside the Sports Act and hence, DD does not have the right to put only on DD Freedish and terrestrial. Because DD Sports is included in mandatorily carried channels on cable and DTH platforms,” said the industry veteran quoted above.

A senior broadcast executive on the condition of anonymity said that the judgement undermines the rights of the broadcast rights holder to choose where it wants to telecast its content.

“If the case was filed before the right judge who understood the IPR act, the outcome would have been completely different. For example, Justice Pratibha M Singh understands IPR act like no other,” the executive said.

HC Prasar Bharati Amazon's plea