In a landmark case (Akuate Internet Service & Anr v. Star India & Anr.) ,decided on 30th August 2013, concerning the applicability of ‘hot news’ doctrine in India, the Delhi High
Court replied in negative and concluded that hot news doctrine does not apply
in India. The basic question before the Court was ‘is there a copyright or any
other kind of right, such as right to protect ‘hot news’ in the scores in a
cricket match’?
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Background
In 2012, by an Agreement, BCCI granted
exclusive broadcasting rights to Star TV to disseminate the information/content
emanating from the cricket matches. Also, other copyrights emanating from
recording of the live match too were assigned which included the right to
record, reproduce, broadcast, etc. Later on, Cricbuzz, Idea Cellular and
ONMOBILE started SMS services providing contemporaneous ball-by ball coverage
of live cricket matches. Star TV India
(plaintiff) filed three suits against Piyush Agarwal (Cricbuzz), Idea
Cellular and ONMOBILE (Defendants)
Issues
Now, the main point of dispute in the instant
case was the ‘mobile distribution rights’ granted by BCCI (Board of control for
cricket in India) to STAR TV. These rights were a part of the exclusive
broadcasting rights and other related rights in respect of cricket matches such
as right to record, reproduce and broadcast the match events. The plaintiff
objected to the defendants’ dissemination of ball-by-ball and minute-by-minute
match information and alerts through live score cards, score alerts and match
updates.
Now, before the single judge bench of the
Delhi High Court, the plaintiff i.e. STAR claimed that the defendants’ action
of giving ball-by-ball and minute-by-minute updates to the customers is
violating the bouquet of rights given and assigned by BCCI to STAR. BCCI, even
though defendant in the instant matter, supported STAR’s contentions and argued
that as it is the organizer of the cricketing events in India, it has exclusive
rights in the content generated during a cricket match and that it can very
well sell these exclusive rights to anyone.
Further, BCCI and STAR, together, claimed
that the defendants’ action of giving live updates concerning match scores to
the customers, constituted violation of plaintiff’s rights with respect to
mobile and internet platforms without sharing any gains. The plaintiffs’ also
contended that the defendants’ are, thereby, engaged in unfair competition and
unjust commercial enrichment. STAR further contended that there is distinction between
audiences which have access to the match status in real time through television
or radio from those who did not. Therefore, STAR underlined the need to protect
such time-sensitive information for a reasonable interval and period of time
before it is actually disseminated and published in the public domain.
On the other hand, defendants’ argued that
the Indian Copyright Act only recognized the rights which are explicitly
provided for under the act. Thus, while STAR and BCCI can very well claim
broadcasting rights and copyright in the cinematograph film of the match or the
sound recording of the commentary but score updates and match alerts are mere ‘facts’
over which no one can claim exclusive rights.
The dissenting opinion of the Justice
Brandeis in the famous 1918 case of the United States Supreme Court ‘INS case’ was relied upon by the
defendants’. Also, the subsequent US Supreme Court’s decisions departed from
the ‘hot news’ doctrine enunciated and laid down in the INS case. STAR and BCCI
claims were predominantly based on the principle of ‘hot news doctrine’ laid
down in INS case which says that one who paid the price should have beneficial
use of the property. On the contrary to the majority opinion in INS case,
Justice Brandeis’s dissenting opinion raised serious concerns about creation
and recognition of new private rights by the courts. This, in turn, would amount
to judicial legislation.
However, the Single Judge bench of the Delhi
High Court brushed aside the defendants’ arguments that the match information
was in the public domain. The single judge bench of the Delhi High Court
granted an interim order in March 2013, thereby restraining the defendants’
from disseminating any ball-by-ball & minute-by-minute match information
unless they take a license from STAR. However, the judge said that the
defendants’ were free to offer and disseminate match information, without a
license, after a time lag of 15 minutes.
Aggrieved by the said decision of the single
bench, the defendants’ filed an appeal in the division bench of the concerned
court. On appeal, predominantly four questions/issues were looked at-
(i)
Whether
STAR’s claims are precluded by the Section 16 of the Indian Copyright Act
(ii)
Whether
‘Hot News’ doctrine is applicable in India or not?
(iii)
Whether
STAR’s claim of unfair competition is sustainable or not?
(iv)
Lastly,
whether STAR’s claim of unjust enrichment is sustainable or not?
i.
STAR’s claims were precluded by the way of
Section 16 of the Indian Copyright Act.
The division bench of the Delhi high court
said that STAR’s claims are precluded by the operation of Section 16 of the
Indian Copyright Act. It said that had the intention of the Parliament was to
give protection to fact, ‘time sensitive information’ or events such as match
information then the statute or the act would have specifically provided for.
No such provisions relating to protection of facts or real time sensitive information
is contained in the Copyright Act. The Court also found that all those
limitations which applied to copyrights also applied to broadcast rights. The
court held that-
“If Parliament had intended to give protection to facts,
“time sensitive information” or events (such as match information), there would
have been conscious protection of those rights by express provision. Therefore,
the exhaustive nature of the regime in Chapter VIII precludes, by its very
nature, any claim for protection over and above what is expressly granted by
its provisions."
Therefore, based on the aforementioned
contention, the division bench rejected the STAR’s claims.
ii.
Applicability of ‘hot news’
doctrine in India
The divisional bench noted that ‘hot news’
doctrine as propounded by the INS case and eventually replied upon by the
plaintiffs, had three dissenters and has been subject of broad skepticism ever
since. The bench then referred to the judicial decisions of the US Supreme
Courts in the case of ‘NBA’ and ‘Flyonthewall’, which held that
misappropriation or free-riding claims can only survive if the plaintiff could
show that the defendants were in ‘direct competition’ with the plaintiffs in
the ‘same activity’. The bench also said that creating property rights in
information by judicial decision would upset the statutory balance created by
the legislature in the Copyright Act.
Further, the bench stressing upon the ‘narrow
confines of the present existence of hot news doctrine’, it held that
“The present avatar (“ghostly presence” a.k.a The
Flyonthewall.com) is narrowed to injuncting time sensitive news where both parties
are “direct competitors” and not merely where the plaintiff‟s primary service
or product is not hot news dissemination, but match organisation or
broadcasting of those events. This critical aspect is absent in the present
case, as neither Star, nor BCCI engage themselves primarily in match news
dissemination through SMS.”
iii.
Star’s claim of unfair
competition
The divisional bench did not accept the STAR’s
claim of unfair competition. The bench said that it is difficult to accept the
aforementioned claim for the reason that, in doing so, it would in effect grant
protection to certain rights (in this case, match information) which are not covered
under any specific statutory regime. Thus, in absence of any provisions
concerning this, it would be untenable to grant relief on the ground of unfair
competition.]
iv.
Star’s claim for unjust
enrichment
This claim was also rejected by the Court,
which pointed out that a claim for unjust enrichment rested on three prongs:
(a) enrichment of the defendant, (b) at the expense of the plaintiff and (c)
existence of an unjust factor in allowing the retention of such benefit. Though
the defendants undeniably benefited, such benefits were purely from resources
invested by them in their respective businesses. Since Star had not
demonstrated that the enrichment of the defendants was at its expense, a claim
of unjust enrichment was not tenable. [Lastly, the divisional bench also
rejected the plaintiffs’ claim of unjust enrichment. Basically, the claim for
unjust enrichment rested on three pillars:
a. Enrichment of the defendant
b. At the expense of the
plaintiff
c. Existence of an unjust factor
which allows for retention of the benefits
The bench said that though the defendants’
benefitted from disseminating the real time match information but such benefits
were solely and predominantly reaped from the resources invested by the
defendants’ in their respective business. Also, the fact that STAR was not able
to conclusively show that the enrichment of the defendant was at its expense,
the bench dismissed STAR’s contention of unjust enrichment. The bench also said
that STAR or BCCI-
“Cannot
claim any exclusive property or other such rights to injunct the publication of
match information, or hot-news, as claimed by it, irrespective of whether the
object of such third party is to publish such information for commercial gain
or without any such motive.”
Lastly, it is to be seen whether STAR prefers
to file an appeal in the Supreme Court or not.
I can also be contacted at- rishabh.a.09@gmail.com
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