The ICC Champions Trophy going on in Sri Lanka has opened yet
another controversy regarding Intellectual Property rights which has relevance
to the observers of the Communication Convergence legislation in India. ICC has
approached a court in Sri Lanka against the Sri Lankan public radio broadcasting
company stating that they do not have rights to broadcast "Cricket Commentary"
without buying the said rights from ICC. It has already claimed a damage to the
extent of US $ 70,000 for the violation thus far and rejected an offer of 10 %
sharing of revenue arising out of the broadcast offered by the Sri Lankan
Broadcasting company. (Read
the full report here).
In the light of this controversy, one of the provisions in
the draft Communication Convergence Bill which is pending for passage in
the Indian Parliament becomes relevant. Chapter IX (Section 31) of the
proposed Act states as follows.
Provision for live broadcasting
of certain events.
31 (1) For the purpose of ensuring the widest
availability of viewing in India of a national or international event of
general public interest to be held in India, the Central Government shall
notify the same well in advance.
(2)The National or International event of general public
interest notified under sub-serction(1) shall have to be carried on the
network of a public service broadcaster as well .
(3) In order to strive towards providing a level playing
field for bidders for broadcasting rights, or persons interested in receiving
broadcasting right for events, notified under sub-section (1), the Commission
shall determine, well in advance of such event , the principles and terms for
the access to the network of the public service broadcaster.
It is clear that this clause would prevent a similar
situation happening in India and we must give due credit to those who thought of
including the clause in the legislation. Whether this was justified or not when
the legislation was drafted, the high handed nature of ICC does vindicate the
need for such a clause.
Is it Curtailment of Freedom of Speech?
It is unfortunate that ICC is trying to curtail the spread of
information on a match to the remotest corners of a country and to the poorer
sections of the society which the target audience of the Sri Lankan Radio
Broadcast represents.
This is not only unethical but also does not make commercial
sense. If ICC thinks that it loses revenue because of such broadcast, they
must be kidding themselves. The consumers of radio broadcast are not likely to
either come down to watch the match in the stadium nor have the financial
muscle to get TV sets to watch the match.
More over watching a cricket match over TV affects
productivity on the field while listening to the cricket commentary may not.
Hence it is better for the community to substitute TV watching interest with
Radio Commentary listening .
The radio commentator is actually an observer of a game and
is passing on his comments on the happennings. Except his own interpretation of
the events, he does not carry any property of the tournament organizers. In
trying to prevent the broadcast of the commentary, ICC is therefore trying to
ly curtail the rights of "Speech" of an observer of a game.
I would go to the extent of saying that even the restrictions
on Internet reporting from the stadia that is prevalent is also not legal and is
a curtailment of the freedom of speech. Same argument also applies to the TV
broadcasting except that a TV broadcaster is much more dependent on the
organizer of the tournament for the facilities required to broadcast and hence
may go for a trade off of his rights. He may also be capturing the events on a
technology device and showing it as it is to the outside world. It is therefore
slightly different from Radio Commentary.
On the other hand, an Internet commentator may be
operating just from his laptop connected to a mobile phone, and the radio
commentator may be operating from a head phone set connected to a broadcast
antenna. They do not capture any image from the proceedings nor use
resources of the stadium authorities beyond the contours of their body. They are
both speaking their mind to a device which transports the audio or the text to
other people elsewhere.
Restricting Radio and Internet Commentary is therefore not
justified.
What Should Sri Lanka Do?
I feel that the ICC claim on an arbitrary fees to be paid to
them by the Sri Lankan Broadcasting Corporation should be refused in the
interest of the right of the Sri Lankan citizen to information on the matches.
It is also a social obligation for the broadcasting firm which does run with
public money in some form.
ICC must be reminded that it has no right to interfere in the
activities of the Broadcasting firm through its contractual agreement with
the BCCSL. At best it can persuade the stadium authorities under the control of
BCCSL to deny facilities to the commentators. But if the commentators sit with
the public and shout their commentary into a mobile phone, ICC cannot interfere
with this right of speech.
Further BCCSL is also dependent on public money and hence it
cannot ignore the public interest for the sake of enabling ICC make unreadonable
gains.
More over, the tournament cannot be run without the support
facilities provided by the Government all of which are not compensated
financially by ICC. Sri Lankan Government should therefore withdraw such
facilities ..Say security for the players).
In the process if the tournament has to be aborted, so be it.
If ICC wants to run the tournament, they have to trade off the rights of
broadcast with the Sri Lankan Broadcasting firm with the Government's support by
way of infrastructure, security etc.
For ICC which has a strange sense of Intellectual Property
Rights, denying the Commentary rights of a Government agency of the host Country
and Logo selection rights of Sahara India the Indian team sponsor as also
forcing the Indian players to illegally violate their own personal contracts
with various sponsors, it is time to learn that there is a limit to public
tolerance of its idiosyncrasies.
Is it surprising that the interpretation of Intellectual
property rights appear to be strange while Mr Malcom Speed, the head
of ICC is reported to be a lawyer?
