[The Viewpoint] Are live sporting events covered under the 2021 Intermediary Guidelines?

In India, there is no single countrywide regulation regulating sports and its broadcast. The management of sporting events is handled by the national bodies/federations, and sometimes by the Union Ministry of Youth Affairs and Sports, which supervises the broader functioning of sporting activities.

The rights of each sporting event, especially cricket and football, are auctioned to broadcasters for huge amounts, and the successful bidder gets the rights to broadcast the event. These are called broadcast reproduction rights and are guaranteed to the broadcaster under Section 37 of the Copyright Act.

The auctioned rights are then telecast on television, and now, technology permits these rights to be telecast through Over the Top (OTT) platforms like Disney Hotstar, Sony Liv, Voot etc. The internet has gradually changed every aspect of our lives and is revolutionizing the way we interact with the world. In such times, the consumption of information has also changed. Even the consumption of media content has become unconventionally digital, allowing a person in a remote part of the world to have access to news, movies, shows, sports and other content made in other parts of the world. This, of course, necessitated a change in the law.

OTT is a media service that includes various providers - also known as content creators - who stream and host audio-visual content that is available over the internet and can be accessed by anyone with an internet connection. Such media services are not dependent on conventional TV channels or cable to stream their content. The content is hosted by a company on a server which can be accessed by the consumer by subscribing to its service. As India is one of the world’s largest content-consuming nations, it hosts several OTT media service providers including Netflix, Disney+ Hotstar, Amazon Prime, Voot, Sony Liv, etc.

As per a survey conducted by KPMG India, 16% of the people prefer watching sports on these OTT platforms, making it the 4th most watched category after full length movies, TV and music videos.

The Information Technology Rules, 2021

The Ministry of Electronics and Information Technology (MeITY) approved the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (IT Rules) on February 25, 2021.

The source of this power can be traced to sub-section (1), and clauses (z) and (zg) of sub-section (2) of Section 87 of the Information Technology Act, 2000, empowering the Central government to regulate such OTT platforms, social media platforms and digital media.

The IT Rules are divided into three parts. Part I includes several definitions. Part II deals with the social media intermediary's duty of care and implementation of the complaints’ procedure managed by the Department of Electronics and Information Technology. Lastly, Part III deals with the Code of Ethics and Digital Media Procedure.

One of the primary purposes of the IT Rules is to ensure that there is a three-tier grievance redressal mechanism. Tier 1 provides for self-regulation by the publishers of the content; Tier 2 provides for self-regulation with the help of these guidelines by the self-regulating bodies of publishers; and Tier 3 provides for an oversight mechanism for constant review.

Are sports broadcasts are covered under the IT Rules?

The IT Rules bring within their scope online curated content. Online curated content is defined as:

"Online curated content means any curated catalogue of audio-visual content, other than news and current affairs content, which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such content."

The requirements of the definition are: firstly, the content has to be selected, organized, and presented using professional or expert knowledge. Secondly, it should not be news and current affairs content. Thirdly, it should be transmitted by the publisher of the content. Fourthly, it should be made available on demand through subscription etc.

FAQs issued by Ministry of Information and Broadcasting describe ‘online curated content’ as "audio-visual content such as films, web-series, etc. made available to the viewers on demand by OTT platforms." Further, content which can be said to be available on demand is described as "content which can be selected and accessed by a user, subscriber or viewer at a time chosen by him/her can be called to be available on demand."

From a perusal of the IT Rules, it is evident that the manner in which they have been framed, especially Rule 8, Rules 11, 12, 14, 18, and the Schedule related to the Code of Ethics, gives an indication that live sports content is not included or regulated by the IT Rules. Rule 8 specially relates to the applicability of the IT Rules, which clearly enunciates that the Rules are only applicable to (i) publishers of news and current affairs content; (ii) publishers of online curated content. Rule 11 and 12 relates to the self-regulating mechanism at Tier I, classification of the online curated content, and applicability of the Code of Ethics. Rule 14 relates to the inter-departmental committee and its hearing procedure. The word ‘curated’ read with the inference from the IT Rules clearly points out that the live sporting events will not be covered under the IT Rules, to the extent that it is not curated.

However, I must point out that the content in a live sporting event can be of two types - one curated, and another non-curated. The actual sporting event that is live is surely not an event covered under the IT Rules, but the portion of the event that is curated, like a discussion/debate on the side of the event, can be treated as online curated event. However, this does not include the running commentary.

Under the laws of various countries, and interpretation of the courts in such countries, live sporting events are treated to be not copyrightable. A similar situation exists in India, where live sporting events are not copyrightable. Since these events are not copyrightable, the necessary corollary is that the same are not curated events. I must clarify that the rights to live sporting events and conduct of the same are available with the organiser like BCCI in case of cricket, which comes by way of a contractual obligation and due to the creation of broadcasting reproduction rights.

Looking at it from another perspective, one of the requirements of online curated content is that it must be available on demand. An event which is streaming live surely cannot be one which can be made available at different chosen times to different consumers. Thus, it can be said that in the absence of compliance with this criteria, live sporting events are not covered under the IT Rules.

Kunal Tandon is Independent Counsel, Supreme Court & Delhi High Court