Capturing the Airwaves: Territorial Jurisdiction, Exclusive Licenses, and DTH Broadcasting

Direct to home (DTH) technology essentially renders a cable connection redundant in homes, by enabling broadcasting companies to directly beam signals to television sets through receivers installed in the house. This technology has been widely used across India since 2007, regulated inter alia by the The Direct to Home Broadcasting Services (Standards of Quality of Service and Redressal of Grievances) Regulations, 2007.

DTC companies typically license the DTH rights for channels, and then broadcast them, with rights extending to specified territories. The primary copyright in the broadcast matter remains with the specific content providers, i.e. the channels, and the broadcast rights licensed.

In a new ruling by the Delhi High Court, in Gulf DHT FZ LLC v DishTV India Limited and Ors (CS (OS) 3355/2015), an injunction was granted against the owners of Dish TV, a DTH company part of the Essel Group of companies . Injunction was sought by Gulf DTH FZ LLC, a company operating a DTH subscription pay television platform in several countries in the Middle East and North Africa (MENA) region (OSN Territory). Both Gulf and Dish TV have contractual arrangements with content distributors. While Gulf had exclusive distribution rights for such content in the OSN territories, Dish TV had non-exclusive rights in India. Express provisions prohibit the licensee from distributing outside of its own authorised market. Contention of Gulf was that Dish TV had acquired shares in a Singapore based company, and then with the assistance of that company broadcast channels and works from India to the OSN territories, where Gulf had the exclusive license.

It was held by the court that Gulf, being the exclusive licensee, though not the owner of the copyright in the relevant works and channels, nevertheless had the standing to initiate the suit, as someone whose rights were being infringed. Further, though the alleged infringement had taken place outside India, the alleged infringer (i.e. Dish TV) was located within the territorial jurisdiction of the Delhi High Court. Therefore, the court read S. 54 read with S. 55 of the Copyright Act widely enough to allow Gulf the standing to file, and the Court the relevant jurisdiction to entertain the present suit. The balance of convenience was found in favour of Gulf, and the injunction granted.

The order was upheld on appeal to the Division Bench, under Dish TV India Ltd v Gulf DTH FZ LLC (FAO(OS) 271/2016).

The question of the owners of the copyright in the works and channels broadcast was not under dispute, rather, it was the question of who had the exclusive right to broadcast the channels in question. Dish TV’s contention that the signal beamed for viewers in India had a “spillover effect” in the OSN territories was not found to hold water. There appeared to have been an active attempt to enter into the exclusive territory of Gulf. Though there has been criticism that the Copyright Act creates rights that are territorial, and therefore, alleged infringement that had occurred outside India should have been fought in the relevant jurisdiction abroad, the court’s contention was that the alleged infringer was located within its own jurisdiction. These decisions could be considered judicial overreach, and de hors copyright law in India, or conversely, solidify India’s admitted position as a guardian of intellectual property rights.