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That a storm of a sort is brewing in the Trai cup in the form of
must-provide clause or making available channels on a non-discriminatory
basis to all platforms cannot be ruled out as most pay broadcasters
like Sony Entertainment TV India, Discovery and Star India coming
out openly against such a regulation.
Though in private, a Trai member said the attempt would be to balance
out the concerns of the broadcasters in the final mandate, but it
may prove to be a Herculean task.
A broadcast industry source said that the possibility of somebody
moving court cannot be ruled out if Trai insists on the must-provide
clause as being described in the draft circulated by the Authority.
The broadcast industry’s understanding is that it leaves no scope
for marketing exclusive content.
For example, Sony Entertainment TV India, in its representation
on must-provide, has conveyed to Trai that it would, in effect,
be tantamount to copyright infringement if creativity is regulated
and denying traditional rights of broadcasters.
The regulation instead should focus on preventing creation of vertically
integrated media companies directly. Vertically integrated media
companies should offer capacity on their platforms to their competitors
at fair and competitive prices, as is the international precedent.
Otherwise, a platform owner that also owns channels should offer
such channels to competing platforms on terms and conditions no
worse than what it has agreed for its own platform, Sony is understood
to have told Trai.
Likening its position to a content provider’s, Trai sources said
Sony, in its response, has stated that the draft interconnect regulation
does nothing to address the last mile problem and also refers to
the lack of any regulation to effect the “must carry” clause. The
argument being must-provide would decrease competition.
Why so? According to Sony, content is the main legal differentiator
for this business and that’s why it has not agreed to be carried
by Dish TV, 20 per cent owned by Zee Telefilms, owing to the latter’s
inability to give satisfactory answers to issues like piracy and
other commercial concerns.
Sony has also quoted extensively from global norms like Trade Related
Aspects of Intellectual Property Rights (TRIPS) and the Berne Convention
for the Protection of Literary and Artistic Works (the Berne Convention),
treaties ratified by India, in support of its claims as to why must-provide
should not be enforced.
“With such viewpoints being expressed, the regulator has to be
careful as the primary aim is to benefit the viewers most,” the
Trai source explained, hinting at the dilemma being faced by the
regulator.
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