Copyright

Del HC hits a sixer: The Boundaries of Copyright and Cricket


Our friends at Medianama have pointed us in the direction of one of the most superbly analysed IP judgments that I have read in a long time – Star India v. Piyush Agarwal (and other connected matters)

The facts of the case are simple. Star India broadcasts matches organized by the Board of Control for Cricket in India (BCCI). The defendants update their subscribers with the score and fall of wickets through text messages (SMSes).  The Plaintiffs claim they have the exclusive right to provide such value added services to the public based on their agreement with the BCCI (dated 10.08.2012) which grants them a 72 hour monopoly over the media rights i.e the right to all information emanating from the event. To bolster this argument, the Plaintiff states that the Copyright Act is not exhaustive of the rights emanating from a live event/performance.

The Delhi High Court through Justice Mehta decided this case (in a 56 page decision) on 8 November 2012 by analysing this issue in various stages:

Is the Copyright Act exhaustive in delineating the rights emanating from a live event or performance?

The Court holds that in light of the specific bar contained in Section 16 of the Copyright Act, there is no other right held in any copyrighted work other than that specified by the Act (with the exception of cases where there is a breach of trust or confidence).

So, what are the rights of the Plaintiff as the broadcaster of the cricket match?

Analyzing Sections 2(q), 2(qq), 2(y), 13, 14, 38 and 38A (phew!), the Court holds that there are only specific entitlements that go along with the “performance” of the cricket match as recorded in a visual recording and/or the sound recording. These are stated exhaustively in Section 38A of the Copyright Act which deals with the exclusive rights of performers.

Since this is the position of the law, Justice Mehta goes on to elaborate the limits of this right by stating that the reproduction or communication of the exact sound and/or the visual recording without/in violation of a license/permission being obtained from the owner of such recording amounts to infringement of the copyright under the Act except when use of copyright material is made permissible under certain provisions of the Act such as Sections 39 and 52.

(This I believe is stating the obvious, but as we know, dear readers, where the obvious is not stated, frivolous litigation and absurd conclusions always emerge.)

Can the agreement between the Plaintiff and the BCCI trump the provisions of the Copyright Act?

The Court first states that after the broadcast of the match, it is impossible for any party to claim that this information conveyed by the performance is not in the public domain. According to the Judge, once the “first broadcast” of the performance has been made, the information that underlies the performance is in the public domain. 
Therefore (as stated above) while the performance and visual/sound recordings of the said performance are protected by copyright, the facts from the broadcast were not. This subtle distinction is hugely important is the crux of the whole decision. 
The Court also goes on to state that despite the Plaintiff’s contentions, no agreement could expand the scope of the rights as provided under the statute. Therefore, the 72 hour media right monopoly as agreed upon between the plaintiff and the BCCI is meaningless since copyright law does not protect information in the public domain.

What is the appropriate time gap allowing the persons such as the defendants to publish information about the matches broadcast by the plaintiff?

In what I will be christening the Maggi rule (!), the Court held that since the information in the performance was itself not copyrightable after  the “first broadcast”, it was necessary to determine what is length of “the period… by which the information can be no longer be said to be part of or so intimately associated to/with the first right of the broadcast of the plaintiff.”

The Court in its discretion determined that for cricket matches this could be approximated approximated to two minutes. After two minutes, information such as regular updates fall into the public domain and can no longer be claimed as the exclusive monopoly of the plaintiff.

The Court also importantly states that where there is an important event, such as the fall of wickets or cricketing milestones (such as runs scored etc.), there need not be any delay in the dissemination of the information. This is based on the doctrine of reporting of current events and affairs and the logic that stale news is no news.

Blogger observations:
I am not one of those people who follows cricket regularly. However, even I regularly hit the refresh button on CricInfo or similar sites when there is an exciting match going on. To not do so is well…unpatriotic. I do not have a TV and find online minute-by-minute coverage of sports an easy way to follow the game. So as a lawyer, blogger and possible target audience to the services of the plaintiff and the defendant, I think the judgment is extremely well-reasoned.

I know the defendant won. However, I still found two things odd:

(a) There is no mention of the “Hot News Doctrine”. There have been cases litigated in India and abroad, and they fit perfectly into this scenario for the Defendant. (Especially the case of NBA v. Motorola);

(b) I’m also not sure if the defendant brought this up (because there is no mention in the judgment) but in this particular fact situation, it is perfectly reasonable to think that the defendant could have got this information from places other than the broadcast i.e. by watching the match live in the stadium and then relaying the information to its subscribers.

Despite all this minor nitpicking, Justice Mehta’s judgment stands on firm footing in the Copyright Act. As an IP lawyer, I appreciated the judge’s clear discussion of the various rights involved, the interplay of various provisions of the Copyright Act and the limits of those rights. Specifically, I thought that the Court makes an important distinction very clear –  that the non-infringement is restricted to the information that is underlying the broadcast and not the reproduction of the broadcast itself.

Hat tip to our friends at Medianama once again.

3 comments.

  1. AvatarAjay

    Hi Kruthika,
    I never really understood the basis for arriving at the Maggi Rule. The discussion mocks the contractual provision saying 72 hours or 72 days or months. But the basis of arriving at the 2 minute rule is not clear. Could you examine this and let us know.

    Thanks,
    Ajay

    Reply
  2. AvatarKruttika Vijay

    Hi Ajay

    Thanks for your comment (and encouraging me in this christening of the Maggi Rule!). As I understood the judgment and the Copyright Act, a contract cannot allow parties to go beyond what has been allowed by a statute. Under Section 38A(1)(b), the Act states that noone is allowed to broadcast or communicate the performance to the public except where the performance is already broadcast. Note: This is distinct from the rights under Section 38A(1)(a). Therefore, where the Act allows the communication of the performance to the public after the broadcast, Justice Mehta believes that no contract such as the Agreement in this case can extend this period of exclusivity of “media rights”. However, the Judge did believe (and rightfully) that the Plaintiff deserves ensured exclusivity at least for sometime- and so in his discretion has given the Plaintiff of being the sole communicator of this information for at least 2 minutes.

    I also haven’t explored it yet, but it could also have to do with the relay of the matches on Doordarshan in India which is done with a delay of a couple of seconds. So after the broadcaster has the chance to exploit all these rights, there isn’t a legal provision which bars service providers such as the defendant to make facts underlying the performance public.

    I hope my understanding is right and my response is clear.

    Reply
  3. AvatarABC

    I am given to understand that the Plaintiff does not claim rights under Copyright Act. Rights (under Common Law), similar to those under the Copyright Act, are claimed. The Court clearly denies the Plaintiff any such rights. Why, then, has the Court gone into an elaborate discussion on the various provisions under the Copyright Act? (Apologies if the question is too trivial.)

    Reply

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