SC terms 'anti-competitve' barring of TV channels airing dubbed serial

MUMBAI: In Competition Commission of India versus Co-ordination Committee of Artists And Technicians of WB Film and television, the apex court of India has held that, preventing channels from airing the tele-serial Mahabharat dubbed in Bengali is an ‘anti-competitive’ activity, and the protection under the garb of language goes against the interest of competition.

The CCI (Competition Commission of India), acting on a complaint that the Committee of Artists and Technicians of West Bengal Film, Eastern India Motion Picture Association (EIMPA) and Television Investors (Coordination Committee), demanded to halt the airing of the dubbed serial on some TV channels, held that this activity was ‘anti-competitive’. 

The Competition Appellate Tribunal however set aside the order and conclusion of the CCI, stating that the EIMPA and the coordination committee were not an "enterprise." The CCI then approached the Supreme Court.

In its judgement, the SC observed: This appeal raises an interesting and important question of law touching upon the width and scope of jurisdiction of the Competition Commission of India (for short, the ‘CCI’) under Section 3 of the Competition Act, 2002. Sajjan Kumar Khaitan is the proprietor of M/s. Hart Video having his establishment in Kolkata. He is in the business of distributing video cinematographic TV serials and telecasting regional serials in the States of Eastern India, which includes West Bengal.

BRTV, Mumbai, which is the producer of  T.V.   programmes,  had  produced  T.V.  Serial   named 'Mahabharat', original version whereof was in Hindi.  BRTV entrusted the sole and exclusive rights of ‘Mahabharat’ to Magnum T.V. Serials to dub the Hindi version of the said serial in Bangla with further rights to exploit its Satellite, Pay TV, DTH, IPTV, Video, Cable TV and internet rights till Septembe, 2016.  Magnum TV, in turn, appointed Hart Video as the sub-assigner to dub the said serial 'Mahabharat' in Bangla language, which it did. Thereafter, for the purposes of telecasting the said dubbed serial, an agreement was executed for the time slot, on revenue sharing basis, with Bengal Media Pvt. Ltd., Kolkata, which is the owner of 'Channel 10', as well as with Calcutta Television Network Private Ltd., Kolkata, which is the owner of CTVN+ Channel. These two channels were given hard disks of four episodes of the serial on 2 February, 2011 and 12 February, 2011.An advertisement was placed in daily newspapers on 19 February, 2011, informing the public at large that the serial 'Mahabharat' would be telecast in Bangla on Channel 10 at 10.00 a.m. in the morning and on CTVN+ at 10.00 p.m. every Sunday.

Certain producers in eastern India formed an association called Eastern India Motion Picture Association (for short, 'EIMPA').  Likewise, the artists and technicians of film and television industry in West Bengal have formed an association known as 'Committee of Artists and Technicians of West Bengal Film and Television Investors ('Coordination Committee').

Telecasting of serial ‘Mahabharat’ in Bangla after dubbing it in the said language from the original produced Hindi language was not palatable to EIMPA or the Coordination Committee.  In their perception, serials produced in other languages and shown on the T.V. Channels after dubbing them in Bangla would affect the producers of that origin and, in turn, would also adversely affect the artists and technicians working in West Bengal. The apprehension was that it may deter production of such serials in Bangla because of the entry of serials produced in other languages and shown to the public by dubbing the same in their language. 

Because of this reason, on 18 February, 2011 CTVN+ received a letter from the Coordination Committee to stop the telecast of the dubbed serial ‘Mahabharat’.   Letter dated 1 March, 2011 to the similar effect was written by EIMPA to CTVN+. Identical demands were made to this Channel by the Coordination Committee as well.

It was alleged that for the last 13 years there was a convention and practice adopted in the said region not to dub any programme from other languages in Bangla and telecast them in West Bengal. A threat was also extended to CTVN+ as well as Channel 10 that in case the telecast   is  not  stopped,  their  channels  would  face non-cooperation from these two bodies, i.e., EIMPA and the Coordination Committee.

The CCI, after receiving the aforesaid information from Sajjan Khaitan (Hart Video), formed a prima facie opinion that acts on the part of EIMPA and Coordination Committee were anti-competitive. Accordingly, matter was assigned to the Director General (DG) for detailed investigation who found Hart Video information to be factually correct.

Section 3 of the Competition Act, 2002 reads as under :

Anti-competitive agreements: 

No enterprise or association of enterprises or person or association of persons shall enter into any  agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.

Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—

(a)   directly or indirectly determines purchase or sale prices;

(b)  limits or controls production, supply, markets, technical development, investment or provision of services;

(c)   shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or

   services, or number of customers in the market or  any other similar way;

(d)   directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition:

The CCI thus rightly observed that the protection in the name of the language goes against the interest of the competition, depriving the consumers of exercising their choice. Acts of Coordination Committee definitely caused harm to consumers by depriving them from watching the dubbed serial on TV channel; albeit for a brief period. It also hindered competition in the market by barring dubbed TV serials from exhibition on TV channels in the State of West Bengal. It amounted to creating barriers to the entry of new content in the said dubbed TV serial. Such act and conduct also limited the supply of serial dubbed in Bangla, which amounts to violation of the provision of Section 3(3)(b) of the Act. Resultantly, the instant appeal of CCI stands allowed.

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