Delhi High Court rejects the applicability of ‘HOT NEWS’ Doctrine in India

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’?

[Image Source: SpicyIP]

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.

Bilateral Investment Treaties and their overriding effect over sovereign law

Bilateral Investment Treaties (BIT) are agreements entered into between two sovereigns with the fundamental objective of promoting investments. While such international commitments do ensure an influx of foreign capital, they often undermine the legislative framework of the countries parties to the agreements. 

In an erudite article in the The Hindu, Mr. Deepak Raju and Mr. Prabhash Ranjan have pointed out the danger of entering into such agreements in relation to hazards they pose to public health.

Understanding D.U. Copyright Conundrum: What the Court Should Do

[Note: Author and Contributor of this blog post is Risabh A. Gupta, 3rd Year Student, B.B.A. LL.B. (Hons.), National Law University, Odisha]

The on-going litigation between a group of leading publishers and a small photocopying shop attached to Delhi University has all the elements of a legendary 'fair dealing' debate in copyrighted works. This case holds paramount significance in mapping the future of use of copyrighted books and materials for affordable dissemination of knowledge in schools and colleges.

BRIEF FACTS OF THE CASE

A small photocopying shop, Rameshwari photocopy services, attached to Delhi University is entrusted by the university with complying extracts from various copyrighted books and materials. Now, the Oxford and the Cambridge publishing houses have alleged that by photocopying the copyrighted books and materials, the photocopying shop and the Delhi University have violated their copyright. Allegedly, the publishing houses have sued for copyright infringement. 

THE TWO LEGAL QUESTIONS INVOLVED

Generally, matters involving copying materials from copyrighted sources involve two fold tests in order to ascertain whether the copied material is permitted or not.

1.      Is the dealing ‘fair’?

2.      Is the copying done for a permissible purpose?

Copyright law in India and all across the world recognize that sometimes using/reproducing/distributing parts of a copyrightable work, without making payments to the copyright holder, are necessary and permissible. This is the essence of 'fair dealing'.

1.      ‘Fair Dealing’ enshrined in Section 52 of the Indian Copyright Act, 1957

The fair use doctrine is recognized as a valid defense to copyright infringement in most countries including India, where Section 52 of the Copyright Act permits one to “fairly deal” with any copyrighted work for “private or personal use including research”. Section 52 (1) (i) of the Copyright Act, 1957 as amended in 2012 reads as follows-

52. Certain acts not to be infringement of copyright. – (1) the following acts shall not constitute an infringement of copyright, namely:

(i) The reproduction of any work-

i.                    By a teacher or pupil in the course of instruction; or

ii.                  As part of the questions to be answered in an examination

iii.                In answers to such questions;

Now, from the bare reading of the aforesaid provision, it is clear that as far as the reproduction for the purposes defined in point (i) to (iii) above is concerned, the same is  exempted from the purview of infringement. Thus, Section 52 (1) (i) of the Copyright Act would clearly reveal that any such reproduction whatsoever is justifiable as non-infringing work.

2.      Copying done for the permissible purpose

Firstly, it needs to be ascertained as to how much the Delhi University/ photocopying shop has copied. Secondly it also needs to be seen whether the extracts copied is permissible under the Indian copyright law or not?

A very comprehensive and exhaustive analysis done by SPICYIP blog[1] points out that the extracts which have been copied by the Delhi University/photocopying shop comes out to meager 10 % of the entire book/ material. The fact that it is well within the ‘global standard’ of 10% cements up the DU stand.

It is now apt to say that the court ought to declare that extracts copied from copyrighted books/materials constitute as non-infringing given that S.52(1)(h)(i) of the Indian Copyright Act does not lay down any quantitative limit on permissible reproduction. In my opinion, the court should allow for the permissible copying of the copyrighted material up to 20% keeping in mind the socio-economic conditions of India.

LESSONS FROM CANADIAN COPYRIGHT CASE

At this point, it is very imperative to analysis the recent Canadian Supreme Court decision on the issue of ‘fair dealing’ and ‘permissible purpose’ pertaining to copying extracts from the copyrighted books and materials.

Analysis of Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37] Case-

In this particular, the Canadian Supreme Court has ruled that copying extracts from the copyrighted books/materials do not constitute infringement as it is protected under the aegis of ‘fair dealing’ and ‘permissible purpose’ if the extracts from a part of teaching materials. Now, the relevance of this case in Indian context is discussed.

The Indian Copyright Act provides as follows:

(1) The following acts shall not constitute an infringement of copyright, namely: 

      (a) A fair dealing with any work, not being a computer programme, for the purposes of- 

 (i) Private and personal use, including research; 

 (ii) Criticism or review, whether of that work or of any other work;

Similar exceptions are also found in the section 29 of the Canadian Copyright statute. Thus, in this particular Canadian case, the Supreme Court of Canada ruled that copying extracts for teaching purposes does not constitute infringement.

Now, we may refer to Sec. 52 (1) (a) of the Indian Copyright Act which provides for ‘fair dealing’ together with the recent Canadian decision to aptly examine the scope in the Indian copyright act.

Sec. 52(1) (a) (i) particularly refers to ‘private use’ whereas the Canadian statute uses the term ‘private study’. The Canadian decision held that the interpretation of the word ‘private study’ should not mean that users should view the copyrighted works in utmost isolation. Thus the Canadian case basically says that whether the study is done alone or in group, copying extracts for teaching purposes would clearly fall within the ‘permissible limits’ and hence non-infringing per se. Therefore, similar line of argument could also be taken by the DU/photocopying shop to defend their stance.

Unfortunately, in the backdrop of the pertinent arguments advanced, the Delhi High Court has granted an interlocutory order restraining the photocopying shop and the university from further copying and circulating the course packages or the extracts compiled from the books. Thus, it is highly desirable upon the Hon’ble Court that it should allow the photocopying of extracts from the books/materials and vividly lay down a sound foundation for a ‘fair dealing’ and ‘permissible purpose’ in copyrighted books/materials.

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[1] http://spicyipindia.blogspot.in/2012/09/delhi-university-must-defend.html; last visited on 19/07/2013 at 11:50 pm

Why Copyright Cannot be Claimed on Broadcasting - A brief Overview

This post is meant to explain basic principle as regards why copyright cannot be claimed for broadcasting. Copyright, as provided in Black’s Law Dictionary, can be defined as a right granted by the statute to the author or originator of certain literary or artistic production, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. In India, matters relating to copyright are governed by Copyright Act, 1957. Section 13 of the Act brings into notice the works on which copyright can be claimed and it can be read as –

“13. Works in which copyright subsists.- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) [sound recordings;]”

Further Section 14 of the Act defines “Copyright”. Broadcasting as general does not find itself placed under this Section and it has separately been dealt under Section 37 under the head Broadcast Reproduction Right. It will not be difficult to assume that Section 14 does not provide any protection to broadcasting right and the same can be framed out from the State of Objects and Reasons of the Copyright Act, 1957 which states that

(11) Certain rights akin to copyright are conferred on broadcasting authorities in respect of programmes broadcast by them.

It clearly indicates that certain rights similar to that of copyright are conferred on broadcasting authorities but not copyright itself. Section 37 was inserted by means of an amendment to the act in the year 1994 which included the right to be conferred on broadcasting authorities and further it provides a list where broadcasting right can said to be infringed as distinct from copyright infringement. Leading case in the relation is ESPN Star Sports v. Global Broadcast News Ltd. & Ors., decided by Delhi High Court in the year 2008. It specifically deals with the issue regarding the distinction between Copyright and Broadcasting rights in detail. Further this issue was discussed in Uruguay round of the WTO Agreement of Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994. In addition to this, issue as regards satellite broadcasting has specifically been dealt in cases Raj Video Vision v. M/s Sun TV, 1994 (2), Madras Law Weekly 158, AA Associates v. Prem Goel AIR 2002 Del 142. M/s Video Master v. M/s Nishi Productions, 1998 (18) PTC 117. It can be said that Section 13 and 14 of the Copyright Act does not cover broadcasting rights and copyright cannot be claimed for broadcasting, rather broadcasting rights can be claimed. Further if broadcast work is recorded in some material form, then copyright can surely be claimed for it. Further chapters dealing with remedies for copyright and broadcasting rights are distinct from each other. The relevant portion of the Uruguay Round states that –

“Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).”

Further Section 2 (dd) of the Copyright Act defines the term broadcast

“2(dd) “broadcast” means communication to the public -(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or

(ii) by wire, and includes a re-broadcast;”

Section 37 (3) provides the acts where broadcasting right can said to be infringement and it can be read as

“(3) During the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the license of the owner of the right does any of the following acts of the broadcast or any substantial part thereof-

(a) re-broadcasts the broadcast; or

(b) causes the broadcast to be heard or seen by the public on payment of any charges; or

(c) makes any sound recording or visual recording of the broadcasting; or

(d) makes any reproduction of such sound

recording or visual recording where such initial recording was done without license or, where it was licensed, for any purpose not envisaged by such license; or

(e) sells or hires to the public or offers for such sale or hire, any such sound recording or visual recording referred to in clause (c) or clause (d), shall, subject to the provisions of section 39, be deemed to have infringed the broadcast reproduction right.”

It can be said that there was clear legislative intent to create separate rights for broadcasting and copyright cannot be claimed for the same. This can be further derived from Section 13 and 14 of the Copyright which does not cover Copyright. Court in ESPN case clearly of the view that there is a clear distinction between Copyright and Broadcasting Right and relevant portion of the case can be read as –

“19. Thus, in our view the above distinction clearly indicates that the Parliament clearly intended to provide separate and distinct rights to the broadcasting organisations to protect their rights against third parties. Satellite broadcasting rights are treated as separate rights and the said rights are recognized throughout the world as independent rights. This is also entirely in keeping with several radical technological advances in the field of telecommunications which could not have been contemplated when the 1957 Act was enacted.”

In the case of Raj Video vision v. M/s Sun TV, 1994 (2) Madras Law Weekly 158, court was of the view that “the Satellite television broadcasting right is an independent right for which the plaintiff cannot claim any copyright”. Though an independent copyright subsist in the work stored in the material form, and usually it is done in the form of a cinematographic film.