Deciding an appeal [ see end note 1 ], the Division Bench of the Delhi High Court has set aside the Single Judge's decision [ see end note 2 ], which recognized the popular "Hot News" doctrine and quasi-proprietary rights in the information emanating from cricketing events and held that the publication of scores and ball-by-ball update through SMS by the defendants amounted to misappropriation of the quasi-proprietary rights and unfair competition. The Division Bench held that the Copyright Act, 1957 does not contemplate quasi-proprietary rights as claimed by the plaintiff and upholding such rights on the basis of the "hot news" doctrine or unfair-competition doctrine would conflict with the provisions of the Act.
Note on the case before the Single Judge
The plaintiff was granted exclusive broadcasting rights by the Board of Control for Cricket in India (BCCI) to disseminate all information emanating from cricket matches and other rights under the Act, that arise from recording of live sporting events. The defendants initiated messaging services on mobile phones that provided instantaneous update of the scores of the live cricket matches. The plaintiff instituted the suit de hors copyright, seeking permanent injunction and damages against the alleged misappropriation of its quasi-proprietary rights in the information emanating from a cricketing event based on the "hot news" doctrine and the tort of unfair competition/unjust enrichment. The Single Judge heavily relied upon the judgment in the case of INS v. Associated Press [ see end note 3 ] and granted relief to the plaintiff. Being aggrieved by the said decision of the learned Single Judge, the appellants / defendants preferred an appeal on the ground that no statute creates a property right in scores and other match information and also on the ground that factual information cannot be owned by anybody either under statute or under common law.
Reasoning by the Division Bench of the Delhi High Court
A) Regarding Section 16 of the Copyright Act, 1957
The Division Bench negatived the contention that factual information is not a copyrightable subject matter and hence a claim can subsist de hors Copyright act, 1957. It observed that Chapter VIII of the Act which refers to the rights of broadcasting organization and performers, was introduced to give limited protection to broadcast rights as compared to copyright and had the Parliament intended to give protection to time sensitive information such as in the instant case, there would have been provisions drafted that expressly mandate the same. Therefore, the Bench concluded that the factual information claim of the plaintiff / respondent shall be subjected to the limitations under Section 16 of the Copyright Act, 1957 i.e. "there shall be no copyright, except as provided by the Act." Thus the Court held that the rights claimed by the plaintiffs, over and above the broadcasting rights, are precluded by Section 16 of the Act; they are also precluded because of the exhaustive provisions of Chapter VIII of the Act.
B) Applicability of the "Hot News" Doctrine
The Division Bench upheld that the INS case branded "Hot News" doctrine was bad law and hence was not applicable under Indian copyright laws. Concurring with the decision of the US Supreme Court in the NBA case [ see end note 4 ], the Bench held that the doctrine leads to injunction of time sensitive news only where both parties are “direct competitors”. The Court held that this critical aspect of 'Hot News' was absent in the present case, as neither Star, nor BCCI engaged themselves primarily in match news dissemination through SMS. Thus, the Court held that the plaintiffs could not claim any exclusive property or other such rights to prevent the publication of match information, irrespective of whether the object of such third party was to publish such information for commercial gain or without any such motive.
C) Applicability of unfair competition or unjust enrichment doctrines
The Court held that in the instant case, the creation of copyright like rights that protect match information, which is otherwise available freely, transgresses the limits of the Copyright Act and thus, the tort of unfair competition cannot be relied upon by the plaintiff to seek equitable relief by way of injunction. Further, the Court held that the claims of unjust enrichment are precluded by Section 16 of the Act.
Conclusion
In the light of the NBA case, the Division Bench analyzed the preemption under Section 16 of the Copyright Act, 1957. Interestingly, the whole claim of the respondent was de hors the Copyright Act and that the subject matter of the dispute was admittedly not a copyrightable subject matter. However, the Bench observed that legislative intent is not to grant any right similar to copyright which includes rights as claimed by the respondent in the factual information. In view of the decision of the Division Bench, the law does not recognize any right over factual information, which essentially highlights the basic tenet of the Copyright Act, that the statute only grants protection to the expression of ideas and not to the underlying ideas or facts.
[ The authors are, respectively, Associate and Senior Associate, IPR Practice, Lakshmikumaran & Sridharan, New Delhi ]
End Notes:
[i] FAO (OS) 153,160 & 161 of 2013
[ii] Star India Pvt. Ltd. v. Piyush Agarwal & Ors., MIPR 2013 (1) 201
[iii] 248 US 215 [
iv] National Basketball Association v. Motorola Inc. 105 F.3d 841 approved in The Flyonthewall.com Inc v Barclays Capital Inc 2011 WL 2437554 (2d Cir. June 20, 2011)by the Second Federal (Appellate) Circuit Court