Star India Private Limited vs Department of Industrial Policy and Promotion & Ors.

Copyright Act, 1957: s.2(dd) – The case of appellants was that content that is carried by transmission from the broadcasters to the ultimate consumer is regulated only by the Copyright Act and any royalties charged are governed only by Copyright Act and this being the case, when TRAI fixes rates and/or interferes with content, it is trespassing into the exclusive domain set out by Parliament under the Copyright Act and since the TRAI Act and the Copyright Act, both are Acts passed by Parliament, they have to be harmonised, and such harmony can be maintained if TRAI is kept out altogether from the domain covered by the Copyright Act – Held: When the definitions of “broadcast” in s.2(dd) of the Copyright Act and of “broadcasting services” in Clause 2(j) of the impugned Regulation are compared, it is clear that the words “intended to be received by the general public either directly or indirectly” are completely missing from the definition of “broadcast” contained in the Copyright – Therefore, copyright is meant to protect the proprietary interest of the owner, which in the instant case is a broadcaster, in the “work”, i.e. the original work, its broadcast and/or its re-broadcast by him – The interest of the end user or consumer is not the focus of the Copyright Act at all – On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer – The two Acts operate in different fields – In this view of the matter, the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation – TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer – Telecom Regulatory Authority of India Act, 1997 – Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017.

Interpretation of statutes: Harmonious construction – Copyright Act, 1957 – Telecom Regulatory Authority of India Act, 1997 – Held: Both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other – In this situation, both the Acts are to be harmonized in the event of any clash/conflict between the two so that both may be given effect to – Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act – It can thus be seen that TRAI and the Telegraph Authority both act in public interest – The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned – If in exercise of its regulatory power under the TRAI Act, TRAI were to impinge upon compensation payable for copyright, the best way in which both statutes can be harmonized is to state that, the TRAI Act, being a statute conceived in public interest, which is to serve the interest of both broadcasters and consumers, must prevail, to the extent of any inconsistency, over the Copyright Act which is an Act which protects the property rights of broadcasters – Therefore, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter. Dismissing the appeals, the Court

HELD: 1. The provisions of the TRAI Act have to be viewed in the light of protection of the interests of both service providers and consumers. This being so, it is clear that no constricted meaning can be given to the provisions of this Act. Under Section 11(1)(a)(iv) of the TRAI Act, one of the functions of the Authority, though recommendatory, is to facilitate competition and promote efficiency in the operation of telecommunication services (which includes broadcasting services) so as to facilitate growth in such services. Under Section 11(1)(b), the terms and conditions of inter-connectivity between different service providers have to be fixed, which necessarily includes terms that relate not only to carriage simpliciter but to all terms and conditions of interconnectivity between broadcaster, MSO, Cable TV operator and the ultimate consumer, so as to ensure that the object of the Act is carried out, namely, that both broadcasters and consumers get a fair deal. Section 11(2) makes it clear that the Authority may, from time to time, notify the rates at which telecommunication services, including broadcasting services, within India and outside India, shall be provided under this Act. The plain literal language of Section 11(2) makes it clear that rates at which broadcasting services are offered within and outside India can be fixed by TRAI. It is clear therefore that when rates are fixed after several rounds of consultations between various service providers and consumers, looking to the interest of each, it is impossible to say that any broadcaster’s rights have been impinged upon. [Para 30][177-G-H; 178-A-F] Avishek Goenka v. Union of India (2012) 5 SCC 275 : [2012] 5 SCR 547 ; Hotel & Restaurant Assn. v. Star India (P) Ltd. (2006) 13 SCC 753 : [2006] 9 Suppl. SCR 602 – relied on.

Petroleum and Natural Gas Regulatory Board v.

Indraprastha Gas Ltd. (2015) 9 SCC 209 : [2015] 7 SCR 215 – held inapplicable

2. At no stage is content of a TV channel sought to be regulated, and that pricing relating to TV channels laid down in the Regulation and Tariff Order is a balancing act between the rights of broadcasters and the interests of consumers, which has not been impugned on the ground that any right or fundamental right is violated, but only on the ground that the Regulation as well as the Tariff Order are outside the “jurisdiction” of TRAI. The power under Section 36(1) of the Act is very wide and not constricted by the provisions of Section 11. [Para 30, 32][178-F-G; 179-C]

BSNL v. TRAI (2014) 3 SCC 222 : [2013] 12 SCR 999 ; Hotel & Restaurant Assn. v. Star India (P) Ltd. (2006)

13 SCC 753 : [2006] 9 Suppl. SCR 602 – relied on.

3. Both the Regulation as well as the Tariff Order have been the subject matter of extensive discussions between TRAI, all stake holders and consumers, pursuant to which most of the suggestions given by the broadcasters themselves have been accepted and incorporated into the Regulation and the Tariff Order. The Explanatory Memorandum shows that the focus of the Authority has always been the provision of a level playing field to both broadcaster and subscriber. For example, when high discounts are offered for bouquets that are offered by the broadcasters, the effect is that subscribers are forced to take bouquets only, as the a-la-carte rates of the pay channels that are found in these bouquets are much higher. This results in perverse pricing of bouquets vis-à-vis individual pay channels. In the process, the public ends up paying for unwanted channels, thereby blocking newer and better TV channels and restricting subscribers’ choice. It is for this reason that discounts are capped. While doing so, however, full flexibility has been given to broadcasters to declare the prices of their pay channels on an a-la-carte basis. The Authority has shown that it does not encroach upon the freedom of broadcasters to arrange their business as they choose. Also, when such discounts are limited, a subscriber can then be free to choose a-la-carte channels of his choice. Thus, the flexibility of formation of a bouquet, i.e., the choice of channels to be included in the bouquet together with the content of such channels, is not touched by the Authority. It is only efforts aimed at thwarting competition and reducing a-la-carte choice that are, therefore, being interfered with. Equally, when a ceiling of INR

19 on the maximum retail price of pay channels which can be provided as a part of a bouquet is fixed by the Authority, the Authority’s focus is to be fair to both the subscribers as well as the broadcasters. INR 19 is an improvement over the erstwhile ceiling of INR 15.12 fixed by the earlier regulation which nobody has challenged. To maintain the balance between the subscribers’ interests and broadcasters’ interests, again the Authority makes it clear that broadcasters have complete freedom to price channels which do not form part of any bouquet and are offered only on an a-la-carte basis. As market regulator, the Authority states that the impugned Regulation and Tariff Order are not written in stone but will be reviewed keeping a watch on the developments in the market. Therefore, the Regulation and the Tariff Order have been made keeping the interests of the stakeholders and the consumers in mind and are intra vires the regulation power contained in Section 36 of the TRAI Act. [Para 37][189-C-H; 190-A-C]

Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. (2008) 13 SCC 30 : [2008] 9 SCR 165 – referred to

4. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood, there can be no difficulty in stating that the two Acts operate in different fields. The broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. The broadcaster is free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet or a-la-carte channels. The impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved aftqer which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer. [Paras 63, 64][210-F-H; 211-A-E]

5. Both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to. Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned. If in exercise of its regulatory power under the TRAI Act, TRAI were to impinge upon compensation payable for copyright, the best way in which both statutes can be harmonized is to state that, the TRAI Act, being a statute conceived in public interest, which is to serve the interest of both broadcasters and consumers, must prevail, to the extent of any inconsistency, over the Copyright Act which is an Act which protects the property rights of broadcasters. Therefore, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter. [Paras 65, 66, 67][211-F-G 212-B-E]

Star India Pvt. Ltd. v. TRAI (2018) 146 DLT 455 ; Secretary, Ministry of Information & Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal (1995) 2 SCC 161 : [1995] 1 SCR 1036 ; Deepak

Theater v. State of Punjab 1992 Supp (1) SCC 684 : [1991] 3 Suppl. SCR 242 ; Cellular Operators Assn. of India v. TRAI (2016) 7 SCC 703 : [2016] 9 SCR 1 – relied on