Rights, Bytes, and Broadcasts: Whose Broadcast Is It Anyway?

Introduction

Broadcasting rights refer to the legal permission granted by the owners or creators of content, such as a sporting event or a competitive video game, to a broadcasting company or platform to distribute and showcase that content. Exclusive media rights tend to be costlier, as the original content owner essentially relinquishes the ability to reach a broader audience by concentrating rights on a single entity, requiring substantial compensation in return.

In the realm of traditional sports such as football, broadcasting rights play a crucial role in generating revenue for clubs and organisations. However, these rights are evolving, with exclusive arrangements becoming less prevalent due to the proliferation of online broadcasts. Platforms such as YouTube and Twitch have gained traction and popularity as new forms of broadcasting through streaming.

The blog begins by exploring the legal foundation of broadcast rights through the Copyright Act of 1957 and associated case laws. It also goes into detail about how piracy, account sharing, and streaming without permission are harmful to the economics of broadcasting. The next part discusses the strategies used by websites such as YouTube and Twitch to reduce violations of copyright infringement. Finally, it also looks into the unique IP issues that arise in esports and provides some suggestions for moving forward.

The Legal Framework

In India, broadcasting rights are primarily governed by the Copyright Act, 1957. Section 2(dd) of the Act defines a "broadcast" as communication to the public by any means of wireless diffusion, whether by signs, sounds, or visual images, or by wire, and expressly includes re-broadcasts. This definition is broad enough to cover both traditional television transmissions and modern internet streaming.

Section 37 of the Act grants broadcasting organisations a "broadcast reproduction right" lasting 25 years from the year of broadcast, protecting against re-broadcasting, public performance on payment of charges, and the making or sale of recordings derived from the broadcast. It is important to note that this copyright is not dependent on any copyright of the content being broadcast. The organisation could have separate copyrights for the event, whereas the broadcaster would have separate copyrights for the broadcast. Section 51(a)(ii) further makes it an infringement to communicate a copyrighted work to the public without a licence, a provision that has expressly applied to internet transmissions since the 2012 amendment to Section 2(ff).

Indian courts have given these provisions meaningful force. In Board of Control for Cricket in India v. Cricket Association of Bihar, the Supreme Court recognised that broadcasting rights in cricket are commercially valuable rights that the BCCI was entitled to exploit. However, the Court also imposed a "must carry" obligation requiring the BCCI to share the feed with Doordarshan for free-to-air audiences, a notable public interest constraint on purely exclusive arrangements.

In Star India Pvt. Ltd. v. Piyush Agarwal & Ors., the Delhi High Court issued one of India's earliest dynamic injunctions to restrain websites from streaming unauthorised cricket feeds. The Court held that a broadcaster's creative choices, like camera angles, direction, and commentary, introduce sufficient original expression to attract copyright protection, drawing on Eastern Book Company v. D.B. Modak, which held that copyright attaches where a work reflects some independent creative exercise, however modest. These precedents confirm that live sports broadcasts are protectable in India, and that rights holders may obtain rolling injunctions automatically extending to new infringing URLs. This is a vital remedy given the speed at which piracy mirrors appear.

Piracy, Account Sharing, and the Streaming Economy

While technological advancements often have a positive impact on broadcasting services, the same tools can also have detrimental consequences. Copyright infringements related to broadcast sports content are frequent occurrences due to the widespread availability of live-streaming platforms. Unauthorised streaming services significantly impact the financial models of content creators and broadcasters by providing free access to content that would otherwise require payment, diverting potential revenue away from legitimate channels. Streaming has emerged as a disruptive force, challenging traditional cable television and satellite providers alike.

While making payments, subscribers share account credentials with non-paying individuals, and this action risks creating a situation where unauthorised users access content without compensation to service providers. This practice of account sharing ultimately leads to higher subscription fees for legitimate paying subscribers. Legally, credential sharing is more precisely a breach of a platform's terms of service than a direct infringement of Section 51, since the account holder accesses lawfully licensed content. Whether passive sharing could constitute an unauthorised "communication to the public" under Section 2(ff) remains untested in India.

Platform-Based Copyright Enforcement and Its Limits

YouTube's copyright strike system is a crucial mechanism designed to protect intellectual property rights and prevent unauthorised use of copyrighted material on the platform. Certain channel features, such as the ability to monetise content, can be temporarily restricted or suspended, and a creator who accumulates three strikes within three months faces permanent channel termination. Automated systems like Content ID scan and detect potential copyright violations at scale, though they can also result in the unwarranted demonetisation or removal of content that may actually qualify as fair use.

The penalties and repercussions of copyright enforcement can be severe for content creators, especially for those who rely on their online presence and ad revenue as their primary source of income. The three-strike policy can be seen as overly punitive for creators who received strikes due to misunderstandings or errors. The enforcement mechanisms are also susceptible to abuse as scammers may exploit these systems by making false claims or engaging in extortion.

A common defence raised by those who integrate copyrighted material into their content is that their usage qualifies as fair use. This doctrine permits limited use of copyrighted works without permission, based on the purpose of use, the nature of the work, the quantity used, and the effect on the market for the original. In India, the equivalent is Section 52 of the Copyright Act, 1957, which permits use for private research, criticism, review, and reporting of current events. Content creators who provide commentary over gameplay footage may invoke this provision, though its application to live streaming over esports content has not been definitively settled by Indian courts.

Twitch's revised advertising guidelines have also had a notable effect on the esports streaming community. The new limitations on integrated video, display, and banner advertisements during live broadcasts may restrict revenue opportunities for tournament organisers and individual streamers, though they ultimately seek to protect intellectual property rights on the platform.

Esports Broadcasting and Its challenges

Broadcasting rights in esports present a unique set of challenges, as this industry has not undergone the traditional evolution from black-and-white TV to mainstream cable networks and then streaming platforms. Video game publishers fully own their games' IP, unlike traditional sports, where no one owns the basic rules of the game. Intellectual property rights in esports subsist in the game itself through the code, the characters, and the maps, rather than merely in the rules of play. This means everyone in esports, such as players, teams, and organisers, needs special permission via licences to participate or broadcast, creating a completely different foundation for broadcasting rights.

Owing to their inherent intellectual property rights, esports publishers hold a unique advantage in controlling the broadcast of their games and can directly manage broadcasting permissions. This streamlined control allows them to efficiently grant exclusive broadcasting rights to licensees and broadcasters, simplifying content distribution and monetisation. The Copyright Act, 1957, protects video games as "computer programmes" under Section 2(ffc) and as "literary works" under Section 2(o), and potentially also as "cinematograph films" insofar as they incorporate audiovisual elements, giving publishers more ways to structure broadcasting licences on their own terms without the collective bargaining complications that characterise traditional sports.

In 2020, YouTube secured exclusive media rights to the Call of Duty and Overwatch Leagues from Activision Blizzard, a testament to the growing commercial interest in esports content. Previously, Twitch had paid $90 million for Overwatch League streaming rights. As esports continues to gain traction, traditional sports broadcasters and streaming platforms alike are vying for a share of this emerging market. The ecosystem, however, is highly fragmented, with each game publisher controlling its own competitive leagues, leading to content saturation, viewer fatigue, and diluted viewership. This fragmentation also makes it difficult to negotiate distribution deals collectively, unlike traditional sports, where pan-industry bodies such as the BCCI or FIFA manage rights on behalf of the sport as a whole.

Esports have traditionally been digital-first and lack strong geographic connections, making it difficult for viewers to develop loyalty with specific teams or players who often move between organisations or retire relatively early. Due to intricate sets of rules and constantly evolving strategies, esports can be challenging even for a casual spectator, and this may prove to be a major hurdle. While streaming platforms have undoubtedly increased accessibility to esports content, the industry still faces challenges in providing a consistently high-quality viewing experience.

Conclusion

The Copyright Act, 1957, provides a reasonably robust framework for broadcasting rights holders, and the growing body of Indian judicial precedent on dynamic injunctions gives these provisions practical force. Still, the speed at which technology evolves surpasses that of legal regulation. Legislation needs to be established regarding the copyright issues of Esports streams and the performance rights of competitive players. It is necessary for streaming platforms to abandon enforcement systems based entirely on algorithms, which are prone to being both mistaken and manipulated. Rights holders, broadcasters, and platforms should work together more effectively to develop common standards against piracy, such as dynamic injunctions and the adoption of new content recognition technologies. The competition between broadcasters in sports and esports, after all, has everything to do with cultural ownership and digital innovation, and understanding them correctly demands expertise and respect for all parties involved.

Author: Aditi Utkarsha is a 3rd year law student at Chanakya National Law University, Patna

Editor: Tanu Mehta