Ordinance on sharing feed is just not cricket

WITHOUT CONTEMPT

Cricket has always aroused passion in India. Not just among the masses. Courts have taken judicial notice of this passion, and now the law-makers have exploited it in a rush of blood with a Presidential Ordinance while Parliament is not in session.

Last fortnight, the government got the President to promulgate The Sports Broadcasting Signals (Mandatory Sharing With Prasar Bharati) Ordinance, 2007 .The Ordinance prohibits the owner and holder of content rights and every television, radio, DTH or other broadcasting service provider from beaming "sporting events of national importance" unless the live signals are simultaneously shared with the state-owned television channel network.

In short, the government has given itself the powers to nationalise television and radio rights in India for events that the government may will at its sole discretion.

The Prasar Bharati (Broadcasting Corporation of India), the statutory body that runs state-owned television and radio networks no longer needs to seriously participate in any bidding process for rights to live television or radio feed.

The government has reserved for itself the right to notify what constitutes a "sporting event of national importance." On a fiat from the government (without any check and balance on who in the government may choose to declare a sports event as being of 'national importance'), the winner of the telecast rights would simply have to turn in his live feed to Prasar Bharati.

Surely, this was meant for cricket, but the government obviously did not want to be seen writing an Ordinance just around one sport. It would be interesting to see if the government would notify the forthcoming Commonwealth Games as a "sporting event of national importance" and the financial implications this could have on its ability to extract maximum commercial value using telecast and broadcast rights.

Cricketing passion is all pervasive. A pair of judges sitting on a constitutional bench of the Supreme Court wrote a dissenting judgement in February 2005, virtually with a tinge of romance, about the power of cricket. They were expressing their minority view that the Board for Control of Cricket in India was as good as a governmental authority for purposes of the Indian Constitution.

In a portion of their judgement titled "What cricket means to India," the judges wrote that "it would be necessary to keep in mind as to what cricket means to the citizens of this country." They wrote: "When India plays in an international fora, it attracts the attention of millions of people. The win or loss of the game brings 'joy' or 'sorrow' to them. To some lovers of the game, it is a passion, to a lot more it is an obsession, nay a craze. For a large number of viewers, it is not enthusiasm alone but involvement."

The government has taken the cue. Courts have had to often consider proceedings challenging either the award of exclusive broadcast rights to private channels, or the lack of access of the "common man" to live feed from cricket matches. At times, courts have forced private broadcasters to mandatorily share their content with state-owned television channels pending resolution of litigation -effectively making the 'exclusive rights' meaningless.

The Ordinance now allows the government to dictate the terms and conditions on which such forcible sharing would have to be effected and the manner in which Prasar Bharati may re-transmit the live signals.

The only seeming protection in the Ordinance is that the advertising revenue sharing ratio between the owner or holder of the live rights and Prasar Bharati would be 75:25 for television and 50:50 for radio. Here too, due to bad drafting, it is not clear that it is indeed the advertising revenue of Prasar Bharati that is ought to be shared.

Advertising tariff fixation can be commercially very intricate. Prasar Bharati may provide package deals to advertisers to cross-market advertising slots in both the re-transmission of its free broadcast rights, and other programming of Prasar Bharati. It would be impossible to accurately compute and audit the advertising revenue of Prasar Bharati attributable to the freeloaded live broadcast rights.

The Ordinance ought to be termed "The TV and Radio Rights Nationalisation Ordinance" for the government has nationalised all exclusive telecast and broadcast property rights over important sports events.

The inchoate scope of 'national importance' would mean that the organisers of every sports event in the world and every bidder for rights to telecast or broadcast over India would face acute uncertainty.

The government could declare the sporting event to be of national importance even after the event has commenced, and regardless of the consideration for such rights, the rights would stand nationalised and Prasar Bharati would be able to freeload on the rights.

This is just not cricket.

(The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own)

somasekhar@jsalaw.com