Accordingly, after evaluating the various policies, warranties and disclaimers present on the defendants’ website, including the fact that the said website was a “members only” website with a non-refundable membership of INR 2000, the Hon’ble Court observed that the defendants were not mere intermediaries, but in-fact had an active involvement in the trade. Therefore, while decreeing the suit in favour of the Plaintiff, the Hon’ble Court directed the defendants to remove all the meta-tags consisting of the Plaintiff’s trademarks, disclose the list of all the sellers operating through its website, obtain a certificate from all its sellers that the goods are genuine and in case of overseas sellers, to notify the Plaintiff as well as to secure permission prior to offering for sale any such products on its website inter alia.

The Hon’ble Supreme Court of India, in an appeal filed by Star India Private Limited, along with other broadcasters (hereinafter ‘Broadcasters’), upheld the validity of the recent regulations and tariff orders made under the Telecommunication Regulation Authority of India Act, 1997 (hereinafter ‘TRAI Act’) which allegedly had the effect of regulating pricing and terms and conditions of licensing of TV channels, including their packaging and bundling.

The Broadcasters had challenged the validity of certain clauses of the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 (hereinafter the Regulation) and the Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order 2017 (hereinafter the Tariff Order) made under the TRAI Act on the ground of being outside the scope of Telecom Regulatory Authority of India (hereinafter TRAI)’s jurisdiction as defined under the TRAI Act and foraying into the matters governed by the Copyright Act, 1957 (hereinafter the ‘Copyright Act’). The Broadcasters argued that the impugned clauses of the Regulation and Tariff Order, including those fixing the maximum retail price for each TV channel, had the effect of regulating pricing and terms and conditions of licensing of TV channels, including their packaging, bundling and other manner of offering the said channels and their underlying programs and therefore, violated the broadcasters’ rights under the Copyright Act.

The Broadcasters relied upon the amendments made to the TRAI Act in the year 2000, Central Government’s notification dated 9.01.2004 as well as the definition of telecommunication under the TRAI Act, to contend that the TRAI Act was carriage-centric and thus, limited to regulation of services in transmission of signals alone and does not extend to or include the subject matter or content of the transmission; and in-fact, it was the Copyright Act, that, being content-centric, dealt with the broadcasters’ intellectual property rights, both in the form of copyright as well as broadcast reproduction right inter alia. The Broadcasters, thus, submitted that the tariff which related to content could only be governed by the Copyright Act and not by the TRAI Act, whereas only the transmission and delivery of signals to consumers, i.e. carriage, was under TRAI’s jurisdiction. Accordingly, the Broadcasters submitted that both the Copyright Act as well as TRAI Act, being passed by Parliament, should be harmonized, and such harmony could only
be maintained if TRAI was restrained from encroaching upon the domain covered by the Copyright Act.

Respondents, on the other hand, argued that the impugned Regulation and the Tariff Order did not interfere with the content that could be transmitted by the broadcasters, but only regulated the manner of such transmission. Respondents further submitted that the TRAI Act was conceived in public interest, in order to protect the interest of both service providers (including the broadcasters) as well as the customers and also relied upon the consultations between all stakeholders and consumers which led up to the impugned Regulation, balancing the interests of broadcasters and consumers. Respondents argued that Regulation essentially required the broadcasters to offer TV channels on a non-discriminatory basis and therefore, the only reason for including pricing of bundles/channels in the impugned clauses was to ensure compliance of the said requirement. Accordingly, the Regulation and the Tariff Order, when read as-a-whole, would in fact, not impact the content at all but regulate the transmission/carriage of signals only.

The Hon’ble Supreme Court of India, after considering the submissions made by both the sides, held that both the Acts operated in different fields and impugned Regulation and the Tariff Order did not transgress into the field of Copyright Act as even after the restrictions imposed under the Regulation, the broadcasters were free to provide whatever content they chose on the TV channels, for which they transmit the signals to the ultimate consumer. The Hon’ble Court observed that while copyright is meant to protect the proprietary interests of the owner (in the present case, broadcaster) in the work i.e. the original work, its broadcast and/or its re-broadcast, TRAI, while exercising its regulatory functions under the TRAI Act, looks into the interest of both the broadcaster and subscriber so as to provide a level playing field. Further, addressing the Broadcasters’ argument of the impugned Regulation and Tariff Order impinging upon compensation payable for copyright to the broadcasters, the Hon’ble Court clarified that, in case on conflict, the two statutes must be harmonized in such a way that the TRAI Act, being conceived in public interest and which serves the interest of both broadcasters and consumers, must prevail to the extent of any inconsistency over the Copyright Act, which protects the property rights of the broadcasters.