Hot news misappropriation need not rely on copyright

By Nandita Saikia, Saikrishna & Associates
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Broadcasting, particularly sports broadcasting, requires the ability to monetize different aspects or property rights in an event given the huge investments made by event organizers and rights holders such as broadcasting organizations. Naturally, there has been friction amongst entities seeking to monetize such content and entities claiming the right to report newsworthy facts. This article seeks to clarify the debate.

Historical background

Copyright does not protect any abstract thoughts, ideas or facts including the news per se; it only protects expressions of them. It is a statutory right, and arguments that custom allows copyright to be violated have consistently failed. In this regard, in the 1814 case of Wyatt v Barnard, Lord Eldon said that “[t]he real defence set up by the Defendants is in fact a custom to steal, a practice against morals, that neither on principle nor authority can be adduced as a defence”.

Nandita Saikia
Nandita Saikia

Newspapers, however, continued to copy others’ copyrighted content, relying on the acquiescence of those they copied from, along with nebulous notions of custom (which supposedly allowed copying), to attempt to escape legal liability. Judges were often scathing; in the 1892 case of Walter v Steinkopff, Justice North categorically stated: “The plea of the existence of such custom, or habit, or practice of copying as is set up can no more be supported when challenged than the highwayman’s plea of the custom of Hounslow Heath. It has often been relied upon as a defence in such cases, but always has been repudiated by the courts.”

The “problem” those copying faced was that if they reproduced copyrighted content verbatim, they infringed copyright, which the judiciary steadfastly refused to allow either supposed custom or journalistic practice to subvert. To get around this, they simply “scraped” raw data (i.e. facts not protected by copyright) from news articles, and wrote their own articles using different language. As copyright did not protect the underlying facts (i.e. news per se), and only protected expressions of the news (i.e. news articles), there was no valid copyright claim to be made by those from whose articles news had been copied. This was, in essence, the factual background of the first case in which the “hot news doctrine” was applied.

Tort variant created

Considering the investment of the plaintiff in the generation of news articles, and mindful of the moral ambiguity involved in the defendant’s free-riding on the plaintiff’s efforts, the US Supreme Court created the hot news tort in 1918 in the case of International News Service v Associated Press. Crafted as a variant of the common law tort of misappropriation, the court characterized it as unfair competition in business.

By 1938, the legal position in the US had, however, changed as a subsequent decision led to the 1918 Associated Press decision becoming a non-binding precedent. This did not kill the hot news tort but it made it less potent in the US, as did later decisions, which made unclear the circumstances in which the tort would be applicable.

Further, one of the main issues in the US seems to be the interpretation of section 301 of Title 17 (the US copyright statute) which deals with “preemption with respect to other laws”, and is touted as being similar to section 16 of the Indian Copyright Act, 1957, which states that there is no copyright except as provided in the statute. However, even a preliminary glance at the two provisions reveals glaring differences between them in terms of content and structure.

Crucially, section 16 of the Indian statute applies to “works” alone, a term defined in section 2(y) of the statute exhaustively (and not inclusively). Given there is no doubt that ideas and facts are not “works”, section 16 of the Indian statute does not apply to them, even where they are in the nature of “news”. The scope of section 16 is further limited by section 39A of the Indian statute, which states (through explicit exclusion) that it does not apply to “neighbouring rights” (i.e. the performer’s right and the broadcast reproduction right).

Thus, although convoluted arguments (relating to the applicability of section 16 may be made where broadcasts of works are involved, the Indian statute clearly indicates that contracts pertaining to performances and live broadcasts cannot fall within the scope of section 16 of the statute.

Conclusion

The Indian Copyright Act does not seem to disallow an action for commercial misappropriation of hot news. Moreover, the issue of hot news misappropriation per se may often be entirely independent of the copyright statute. The issue has, however, not been conclusively determined by the Supreme Court of India, and the opinions of high courts have not been entirely consistent. It remains to be seen how Indian law and courts will treat the issue of “hot news”, particularly in the context of sporting events.

Nandita Saikia is a senior associate at Saikrishna & Associates. She can be contacted at [email protected]

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