Delhi High Court recently delivered a judgment in a case that is expected to have a substantial impact on the manner in which sporting organizations assign rights to sports broadcasters and, ultimately, on the limits of rights that they can assign and restrictions that may be placed on third parties.
The judgment was passed by a single judge and later set aside because one of the parties, the Board of Control for Cricket in India (BCCI), was not afforded the opportunity to file its written statement. The matter is, in effect, to be re-heard on merits and the status quo between the parties prior to the filing of the suit is continuing.
Indian courts have seen numerous sports broadcast-related legal battles, almost all of them in respect of cricket. This case concerns the BCCI and Star Sports objecting to a website that provides written ball-by-ball commentary of cricket matches and also provides updates of match scores via text messages (SMS) to their subscribers.
As stated by the single judge, the claim of the broadcaster was that it had been given certain exclusive rights in respect of the cricket matches and the activities of the defendant infringed these rights. The judge held that while copyright may exist in the broadcast of the match per se, there can exist no right in the information contained in the broadcast, which is in the nature of news.
The judgment went on: “However, when can the information become an information in public domain, and not be an information which can really be said to be almost the part and parcel of the original audio and/or visual recording of the broadcast of the plaintiff, is in my opinion, purely a legal issue.”
In answer to this question, the judge, exercising discretion, ruled that two minutes must elapse from the time of broadcast before the information comes into public domain. Therefore, the right to send SMS of the score updates, delayed by two minutes, would not be an infringement.
With respect to the right of news organizations to report on the information contained in the broadcast of events, the judge referred to the judgment in New Delhi Television Ltd v ICC Development (International) Ltd & Anr, where it was held that: “Law permits current events and affairs to be reported i.e. recognizes that stale news is no news and thus must be reported currently. That is the reason why an archival footage acquires the status of being archaic after 24 hours.”
While the right of news organizations to report on current affairs is undisputed, another question that may be raised is whether the defence of fair dealing would also apply to news and information organizations that legally acquire rights to broadcast certain parts of these events on certain conditions. This has been debated before the courts in India on multiple occasions.
It is apparent that there can be no monopoly on public information. Extending the objections of the BCCI and the broadcaster to other events or even works under copyright protection, it would appear that no person may either speak about or give opinions or information about such works. Certain uses of copyright protected works have been specifically exempted from the purview of infringement, through section 52 of the Copyright Act, such as the right to use the information contained in the works (or in a sports broadcast) for the purpose of news, education and such other fair dealing purposes.
In this respect, it must be borne in mind that the rights of the broadcaster in the broadcast are proprietory in nature and that while granting a licence to any such rights, sports and broadcast organizations need to add terms and conditions to the exercise of those rights by licensees.
However, it appears from the plethora of judgments on wrangles between broadcasters and news agencies over the years that a fine balance must be maintained to safeguard both the commercial interests of the parties involved and the public interest in getting live broadcasts, news and critical reviews of events.
If the plaintiff’s contentions were upheld, no news of a sports broadcast would be allowed without the broadcaster’s permission. Extending the analogy, it would appear that dissemination of news, or any information for that matter, in respect of any broadcast that is the subject of copyright would also be an infringement. What then would become of not just those in the business of news and media, but of the right of the public to know of such public events? Is the general public then to be at the mercy of the broadcaster?
Kajigailiu Gaiduwan Kamei is a managing associate at Lall Lahiri & Salhotra, which is an IP boutique based in Gurgaon.
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