The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
The Indian Media & Entertainment Industry has made significant contributions to the economy, where it is anticipated to grow at a Compound Annual Growth Rate (CAGR)[1] of 13.5per cent during the period of 2019-24 to reach around Rs 3.1 lakh crore (US$ 43.93 million) by 2024.[2] The necessity for regulating content arose as the unique audio-visual impact in broadcasting turn out to be a powerful medium of communication. It was able to elicit thoughts and passions. “The motion picture is able to stir up emotions more deeply than any other product of art”[3] In Shankar v State of Tamil Nadu[4], the convict was said to have been influenced by the depiction of crime in films.
The regulation of content is divided across different authorities and self-regulatory organizations. The broadcasting and distribution segments are majorly regulated by the Ministry of Information & Broadcasting (MIB) and the Telecom Regulatory Authority of India (TRAI), respectively. Standards for newspapers and news agencies are overseen by the Press Council of India and the News Broadcasting Standards Authority. The Central Board of Film Certification (CBFC) reviews content for short films, documentaries, television shows and advertisements in theatres and broadcasting via television.
Contents hide
2 The Cable Television Networks (Regulation), Act 1995
3 Policy Guidelines for Uplinking of Television Channels From India 2011
3.1 the proposed channel is purely an entertainment channel and
4 Policy Guidelines for Downlinking of Television Channels from India, 2011
5 Prasa Bharati (Broadcast Corporation of India) Act Of 1990
The Act and its subsequent amendments define the telegraph broadly to include most modern communication devices, irrespective of their underlying technology.[5] Judicial decisions have further held that the term ‘telegraph’ includes the terms telephone, television, radio, wireless, mobile and video equipment. The Act authorizes the Central Government to take temporary possession of a telegraph in cases involving public emergencies or public safety.[6] Section 5(2) enables the government to lawfully intercept telegraph messages on certain grounds. These include India’s sovereignty and integrity, state security, friendly relations with foreign states, public order, and preventing the commission of an offense.[7]The Act empowers the government to revoke a telegraph license for breach of any terms and conditions or for default in making license-fee payments.[8]
In an attempt to regulate the operation of cable television networks and the ‘haphazard mushrooming of cable television networks’ in the country, the Act
aimed at regulating the content and operation of cable networks.
The Central Government, in the public interest, can put an obligation on every cable operator to transmit or retransmit a program of any pay channel through an addressable system if it is not in conformity to promote, on the grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or
castes or communities or which is likely to disturb the public tranquillity.[9]
Sections 5 and 6[10] of the Act deal with the Advertisement Code and the Programme Code which is detailed under the Cable Television Networks Rules, 1994. They specify the content that is prohibite and permissible to be broadcaste across the Television network.
Under the Programme Code, Rule No. 6; any programme that may offend good taste/ decency, national integrity; criticism of friendly countries; attacks or contemptuous of religions or communities; obscene, defamatory, deliberate, false and suggestive innuendos and half-truths; incite violence or anti-national attitudes, contempt of court; indecent representation of women, children; Contravenes the provisions of the Cinematograph Act, 1952 ; contains live coverage of any anti-terrorist operation by security forces; depicts cruelty or violence towards etc.
In Indraprastha People & Anr. v. Union Of India & Ors[11], the Court suggested the formation of a self-regulatory body by the Indian Broadcasting Foundation named “Broadcasting Consumers Complaint Committee” to take cognizance of and decide complaints pertaining to the violation of law by broadcasters.
all advertising carried in the cable service should conform to the laws of the country and not offend morality, decency and religious notions of the subscribers.Under Rule 7 (2), it extends toadvertisements which ridicule any race, caste, colour, creed and nationality; is against the Constitution, national emblem etc, promotes violence, obscenity, criminality, derogates woman, promotes production, sale or consumption ofcigarettes, tobacco products, wine, alcohol, liquor or other intoxicants;infant milk substitutes, feeding bottle or infant food etc. No advertisement which violates the Code for self-regulation in advertising, as adopted by the Advertising Standards Council of India (ASCI), Mumbai, for public exhibition in India, from time to time, shall
be carry in the cable service. The Code also prescribes that a programme shall broadcast advertisements for only 12 minutes per hour.
Under Section 20 of the Act, the Central Government in public interest
may prohibit the operation of a cable television network.
In accordance with the 2011 Policy Guidelines for uplinking of television channels from India, the Ministry gives permission for uplinking under two categories — non-news and current affairs, and news and current affairs. While the former includes channels, which do not have any element of news and current affairs in its program content, the latter means a channel that has elements of news and current affairs in its program content. At the time of applying for a non-news TV channel, the applicant company gives an undertaking that
does not have any news or current affairs-based program. Under the Special Conditions/Obligations Guidelines[12], the company shall be permitted to uplink only those TV channels that are specifically approved or permitted by the MIB for uplinking from India.
The guidelines specify that that the channel/company shall ensure that its news and
current affairs content provider are accredite with the Press Information Bureau. Only those accredited content provider can use equipment/platform for collection/transmission of news/footage.
the guidelines also emphasise on the compliance of the company with the Programme & Advertising Codes laid down in
the Cable Television Networks (Regulation) Act, 1995 and
the Rules. The Government of India, Ministry of Information & Broadcasting has been empower with the right to suspend
the permission of the company for a specified period in public interest or
in the interest of national security to prevent its misuse.
In the matter of Viacom 18 Media Private Ltd &Anr. vs Union Of India[13], owing to the telecast of a program carrying obscene dialogues and vulgar words the channel’s transmission or re-transmission for 10 days, on all platforms throughout India, was prohibited. The Court while holding the punishment as proportionate referred to the provisions of Down-Linking Guidelines, the terms and
conditions of the permission granted and
the provisions of Section 20 of the Cable Act were aptly taken into account.
MIB formulated policy guidelines for downlinking all satellite television channels downlinked / received / transmitted and re-transmitted in India for public viewing. No News and Current Affairs channel is permit to be downlink
if it does not carry any advertisements aimed at or designed for Indian viewers; if the channel is a standard international channel and
has been permitte to be telecaste in the country of its uplinking by the regulatory authority of that country.Further under
Guideline 5, adherence toall Broadcasting Rules, Guidelines, Notifications issued
under or
any other Code/Standards guidelines/restrictions prescribed
by Ministry of Information & Broadcasting have been strictly mandate.
The Central Government is empower with the right to suspend
registration of the channel for a specified period in public interest or
in the interest of national security to prevent the misuse of the channel. Moreover, in instances of war, calamity or any national security concerns, the Government has
the power to prohibit downlinking/ reception/ transmission and
retransmission of any or all channels.
Prasar Bharati Act was enacted to ensure that “broadcasting is conducted as a public service” [14]and to gather news, not propaganda.[15]
Though the Broadcasting Corporation was suppose to be independent, Section 23 of the Act gives the Central Government
the power to issue to the
Corporation directions to broadcast or not to make a broadcast, if
it deemed to be necessary in the interests of the sovereignty, unity and
integrity of India, or the security of the State, or the preservation of public order.
Apart from the aforementioned, various other statutes and guidelines deal with the broadcasting of specific content. However, the technological advancement and entertainment industry’s boom has not been met sufficiently with proper legislations. Though the TRAI has been equip to deal with much of the telecommunication matters, the content restrictions and
the wordings of the advertisement and
program code remain haphazardly drafted with loosely worded restrictions echoing
the matter enshrined under Article 19(2). Even though self-regulation has been encouraged, much of the impact on the press and
entertainment is focus on pleasing the consumers and providing crowd sensations. A possible autonomous regulator [16] or effective self-regulation looks like the way to go about with content restrictions.
[1] CAGR is calculated from Rs figures, according to Zenith Global Advertising Expenditure Forecasts
[2] KPMG report on India’s digital future – Mass of niches dated August, 2019
[3] K A Abbas v. Union of India (1970), 2 SCC 780
[4] (1994) 4 SCC 478
[5] 3. 1 [“telegraph” means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means. Explanation. “Radio waves” or “Hertzian waves” means electromagnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide;]
[6] Section 5(1)
[7] Section 5(2)
[8] Section 8
[9] 19. Power to prohibit transmission of certain programmes in public interest.—Where 2 [any authorised officer], thinks it necessary or expedient so to do in the public interest, he may, by order, prohibit any cable operator from transmitting or re-transmitting 3 [any programme or channel if, it is not in conformity with the prescribed programme code referred to in section 5 and advertisement code referred to in section 6 or if it is] likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquillity.
[10] 5. Programme code.—No person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code.
such advertisement is in conformity with the prescribed advertisement code
[11] WP(C)No.1200/2011
[12] 1.4. Special Conditions/ Obligations 1.4.1. The company shall Uplink only those TV Channels which are specifically approved or permitted by the Ministry of Information and Broadcasting for Uplinking from India.
[13] W.P.(C) 3402/2013
[14] Section 12 (3)(a)
[15] Section 12 (3)(b)
[16] Hero Cup judgement (1995) 2 SCC 161
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