• Authored by: Dr. Mohan Dewan Co-authored by: Advocate Vinay D. Dwarkadas

In a recent decision the United States Supreme Court held that Aereo infringed the public performance right included in the copyright of broadcaster’s on-air programming by transmitting the programs without a license from the broadcaster to its own internet subscribers and which amounted to unauthorized transmission.

Brief facts of the case:

The American Broadcasting Companies, Inc. (Plaintiff) had alleged that Aereo Inc. the Defendant which provided an online television streaming service, had infringed their exclusive rights of transmission and public performance included in the copyright. The Defendant provided a library like service where its subscribers could choose from a variety of television programs which could be streamed through the internet on their devices within moments of their being aired, for a monthly fee. All that a subscriber was required to do was to install a dedicated antenna that would receive the broadcast signal which would be converted into internet transmittable data through a transcoder. It was entirely up to the subscriber as to when and what he would watch. The Plaintiffs argued that the Defendant transmitted its programs to the public without its prior authorization. On the other hand the Defendant contended that it catered to its own subscribers in a personalized manner where the customer choses a program it wanted to view. As a consequence there was no public performance and its acts did not constitute copyright infringement. The Court was however of the view that that the transmission of the programs by the Defendant came within the scope and purview of “performance” as provided by the US Copyrights Act since the transmission was to a large number of people at different locations and which was fairly “public”. By a majority 6-3 decision the Court held that the Defendant had violated / infringed the Plaintiff’s copyright.

Pursuant to the above decision, Aereo adopted a new strategy based on the Courts decision such that the service now provided by Aereo is similar to that of a cable system. It asserted that it is entitled to a compulsory license as available to cable systems to transmit over-the-air broadcasts under the applicable provisions of the US Copyright Act. If granted, the license could be a defense to broadcaster’s claims of copyright infringement.

The Copyright Office rejected Aereo’s claims holding that the applicable provisions of compulsory licensing do not apply to Internet retransmission services.

Indian scenario:

Aero’s case, although admittedly not binding in India, has extended the scope of public performance to programs streamed through the internet. With the media industry rapidly growing in India, cable service providers should consider Aereo’s case to avoid being sued by broadcasters. The applicable provisions of the Indian Copyright Act, 1957 adequately protect “broadcast reproduction rights”. During the continuance of a broadcast reproduction right in relation to any broadcast, no person can without the license of the owner rebroadcast or reproduce the broadcast and which if done will be deemed to be infringement of the “broadcast reproduction rights”.


Keep yourself acquainted with the latest in IP news. Subscribe to our free newsletter to get regular updates.

Copyright © 2022 R. K. Dewan & Co.