NEW DELHI: Even as arguments concluded in the Star India and Vijay TV case challenging the jurisdiction of Telecom Regulatory Authority of India to issue tariff orders on the ground that content came under the Copyright Act, the Madras High Court directed all parties to submit written statements by 27 July 2017.
The Court refused to accept an affidavit by the Indian Broadcasting Foundation which had neither a notary stamp nor a date. Earlier, in his arguments, TRAI counsel Saket Singh had said that IBF represented a mere 20 per cent of the broadcasters in the country. In fact, the bench expressed its annoyance at the manner in which the affidavit had been presented.
If the written submissions are accepted by the court, it will reserve its judgment in the matter.
Vijay TV counsel Abhishek Manu Singhvi, while presenting his rejoinder, also furnished a number of new arguments, and therefore the court wanted all these to be put into written submissions. Singhvi said that the dichotomy between copyright works and their compilations were false, and TRAIs assertion that a TV channel was a separate product was not 'protectable.' He said that public interest would not confer non-existent jurisdiction on TRAI.
In any event, TRAI will continue to regulate carriage and the broadcasters business.
Singhvi said that TRAI seemed to assert that broadcast reproduction rights did not have had anything to do with a channel but was merely a compilation of copyright works. That understanding was flawed. The impression that TRAI was not regulating content but only the manner of offering of the TV channel was completely flawed since price, manner of offering and market place were inextricably linked.
Singhvi contended that TRAI was indulging in disguised encroachment. It might have jurisdiction on transmission but cannot extend to other sectors.
He said the reliance on the 2009 Delhi HC judgement of Star vs Trai was completely misleading. The principles of 'res judicata' and 'constructive res judicata' would not confer jurisdiction on TRAI to regulate content.
In any event, the issue raised in the instant writ had never been dealt before any court/ tribunal, thus the earlier judgements could not operate as res judicata / constructive res judicata. Similarly, the reliance on NSTPL judgment was completely misplaced. He said acquiescence / estoppel / concession in law was not binding.
TRAI’s reliance on TRAI vs BSNL decision of TDSAT to assert Star was stopped from challenging the regulations was completely misleading.
On his points as rejoinder, he said TRAI and intervenors suggestion that broadcast came into existence only after TV channel signal reaches the set-top box and thus there was no BRR (broadcast reproduction right) implication in the arrangement between the broadcaster and the DPO was completely flawed.
Broadcast comes into existence from the moment the TV channel is uplinked.
TRAI’s argument that the Copyright Act only protects individual programmes as works, and a TV channel being a 'distinct and different product' is not protected as a whole under the Act is completely flawed, he said, adding that a TV channel is protected as a broadcast under the Act. The owner of TV channel is granted a substantive right known as the BRR.
The distinction between driver/ non- driver and popular/ non popular channel- while the impinged regulation and Tariff order claim to be content agnostic. TRAI has taken every effort to rely on content to justify and defend them.
TRAI does not have the power to administer the programme code and advertising code under the Cable Networks (Regulation) Act 1995. TRAI’s role as authority under that Act is very limited. It is recognised as an authority only for the limited period of digitisation as governed under section 4A.
The impunged regulation and Tariff directly affects subscription and advertisement revenue of broadcaster which in turn impacts the expenses that can go into curating and programming of Tv channel which in turn directly affects the price at which programmes can be acquired which is nothing but control of pricing of copyright works and content.
Sampling of content is the norm. Bundling of content is beneficial to promote public interest. TRAI’s impugned regulations will impact the diversity and Prularity of views.
Although the Supreme Court had in early May while staying the tariff order directed the Madras High Court to complete hearing within four weeks, the High Court had commenced the in the last week of June.
Meanwhile, TRAI TV reference interconnect offer (RIO) and Quality of service order (QoS) came into effect from 2 May following the order of the High Court.
Apart from the Tariff order which had originally been issued on 10 October last year, the regulator also issued the DAS Interconnect Regulations which had been issued on 14 October last year, and the Standards of Quality of Service and Consumer Protection (Digital Addressable Systems) Regulations which had been issued on 10 October last year.
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