18 March 2004

Broadcast Cricket: Code Right can be the screen saver

18 March 2004
The Times of India

Broadcast Cricket: Code Right can be the screen saver

By Siddharth Varadarajan

New Delhi: The uncertainty surrounding the telecast of the India-Pakistan cricket matches has less to do with the tussle between Doordarshan and Ten Sports than with the absence of an Indian law reconciling market principles—which govern the sale of TV rights—with the right of the public to see “events of national interest’’ free of cost.

Indeed, India is one of the few countries with a vibrant Pay-TV sector not to have a regulatory framework.

In contrast, Britain, Ireland, Denmark, Italy, Germany and South Africa all have broadcast laws covering the telecast of national sporting (or cultural) events. The European Union’s 1997 Television without Frontiers Directive provides the overarching framework for most continental legislation on the subject.

“Each member state may take measures,’’ it says, “to ensure that broadcasters do not broadcast on an exclusive basis events which are regarded by that state as being of major importance for society in such a way as to deprive a substantial proportion of the public of the possibility of following such events via live coverage or deferred live coverage on free television.’’

In Britain, the Broadcasting Act (1996) gives the secretary of state for culture, media and sports the power to draw up a list of sporting or other events of national interest. These “listed events’’ include the Olympics, cricket Test matches played in England, the Grand National and the Wimbledon finals.

The British law stipulates that a Pay-TV channel can only broadcast a listed event on an exclusive basis if it secures prior consent from the regulatory Independent Television Commission. Para 13 of the ITC Code on Sports and other Listed Events says, “In deciding whether to give its consent, it may be sufficient for the ITC to establish that the availability of the rights was generally known and no (public) broadcaster had expressed an interest in their acquisition, or had not bid for the rights.’’

If India had an identical law, the fact that DD did not even bother to bid for the India-Pakistan series when the PCB was auctioning the rights last year would clearly stand in Ten Sports’s favour.

However, in a major judgment in 2001 (Regina vs ITC, ex parte TV Danmark 1 Ltd), the Law Lords ruled that EU’s Television without Frontiers Directive sometimes had primacy over the ITC Code. The case concerned the refusal of a Danish Pay TV broadcaster based in the UK to share the feed for a World Cup fixture with Danish public broadcasters who had earlier underbid for the right to telecast the match.

Ruling against the Pay TV broadcaster, Lord Hoffman wrote, “It may be that a regulatory system in which a Pay TV broadcaster has to offer to share the rights with a public broadcaster means that any event which the latter wishes to broadcast will be unattractive to the Pay TV broadcaster and that the value of the rights will be depressed.

“But that is a consequence which inevitably follows from the p ro t e c t i o n s which the (EU) Directive was intended to confer upon the public right of access to such events.’’

What Others Do

• In 2003, Ireland amended its Broadcasting (Major Events TV Coverage) Act of 1999 after BSkyB refused to show an Ireland vs Switzerland football fixture on free-to-air TV.

• The Italians consider the Formula 1 Italian Grand Prix and the San Remo music festivals to be events of national importance which cannot be monopolised by a private broadcaster.

• Danish broadcast law allows a Pay TV channel, which has acquired exclusive rights to a World Cup fixture involving Denmark, to obtain with 14 days an answer to whether the public broadcasters are interested or not.

• The South African Broadcasting Act (1999) says “subscription broadcasting services may not acquire exclusive rights for the broadcast of national sporting events’’. But disputes and alleged underbidding by public broadcaster SABC led the parliament’s sports committee to direct the three main TV companies, including SABC, to come up with ideas on how to broaden access to broadcasts of sports events of national importance.

• The British law stipulates that the addition of any relevant event (to the “listed events’’) shall not affect the exercise of any rights under a contract entered into before that date. Thus, the law prohibits the government from retrospective listing of sporting fixtures as events of national interest.

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