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Telecommunication (Broadcasting and Cable) ServicesInterconnection (Addressable Systems) Regulations, 2017 –Telecommunication (Broadcasting and Cable) Services (Eighth)(Addressable Systems) Tariff Order, 2017 – Constitutionality of theRegulation and Tariff Order challenged – Held: The Regulationand the Tariff Order were made keeping the interests of thestakeholders and the consumers in mind and are intra vires theregulatory power contained in s.36 of the TRAI Act.Telecom Regulatory Authority of India Act, 1997:ss.11(1)(a)(iv), 11(1)(b), 36(1) – Role of TRAI – TRAI acts as aregulatory authority, which looks to the interest of both broadcasterand subscriber so as to provide a level playing field for both – Thebroadcaster is free to provide whatever content he chooses for theTV channels that he chooses to transmit to the ultimate consumer –At no stage is content of a TV channel sought to be regulated, andthat pricing relating to TV channels laid down in the Regulationand Tariff Order is a balancing act between the rights ofbroadcasters and the interests of consumers – The broadcaster isfree to arrange pricing of his TV channels so long as they are non-discriminatory and do not otherwise have the effect of unreasonablyrestricting the choice of a subscriber to choose bouquet or a-la-carte channels – Telecommunication (Broadcasting and Cable)Services Interconnection (Addressable Systems) Regulations, 2017– Clause 2(j).Copyright Act, 1957: s.2(dd) – The case of appellants wasthat content that is carried by transmission from the broadcastersto the ultimate consumer is regulated only by the Copyright Act andany royalties charged are governed only by Copyright Act and thisbeing the case, when TRAI fixes rates and/or interferes with content,it is trespassing into the exclusive domain set out by Parliamentunder the Copyright Act and since the TRAI Act and the CopyrightAct, both are Acts passed by Parliament, they have to be harmonised,and such harmony can be maintained if TRAI is kept out altogetherfrom the domain covered by the Copyright Act – Held: When thedefinitions of “broadcast” in s.2(dd) of the Copyright Act and of“broadcasting services” in Clause 2(j) of the impugned Regulationare compared, it is clear that the words “intended to be received bythe general public either directly or indirectly” are completely missingfrom the definition of “broadcast” contained in the Copyright –Therefore, copyright is meant to protect the proprietary interest ofthe 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 theCopyright Act at all – On the other hand, the TRAI Act has to focuson broadcasting services provided by the broadcaster that impactthe ultimate consumer – The two Acts operate in different fields – Inthis view of the matter, the Copyright Act will operate within its ownsphere, the broadcaster being given full flexibility to eitherindividually or in the form of a society charge royalty orcompensation – TRAI, while exercising its regulatory functionsunder the TRAI Act, does not at all, in substance, impinge upon anyof these rights, but merely acts, as a regulator, in the public interest,of broadcasting services provided by broadcasters and availed ofby the ultimate consumer – Telecom Regulatory Authority of IndiaAct, 1997 – Telecommunication (Broadcasting and Cable) ServicesInterconnection (Addressable Systems) Regulations, 2017. AInterpretation 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 arecentral enactments which do not expressly provide that the oneoverrides the other – In this situation, both the Acts are to beharmonized in the event of any clash/conflict between the two sothat both may be given effect to – Since the Telegraph Authority,acting under the Telegraph Act and the Indian Wireless TelegraphyAct, is required to act in public interest, the jurisdiction of the saidAuthority is left untrammeled by the provisions of the TRAI Act – Itcan thus be seen that TRAI and the Telegraph Authority both act inpublic interest – The TRAI Act, the Telegraph Act and the IndianWireless Telegraphy Act, being statutes in pari materia, form a Code,insofar as wireless telegraphy and broadcasting is concerned – Ifin exercise of its regulatory power under the TRAI Act, TRAI were toimpinge upon compensation payable for copyright, the best way inwhich both statutes can be harmonized is to state that, the TRAI Act,being a statute conceived in public interest, which is to serve theinterest of both broadcasters and consumers, must prevail, to theextent of any inconsistency, over the Copyright Act which is an Actwhich protects the property rights of broadcasters – Therefore, tothe extent royalties/compensation payable to the broadcasters underthe Copyright Act are regulated in public interest by TRAI under theTRAI Act, the former shall give way to the latter. |
