Copyright Unfair Competition

Cold News for Cricket Score Monopolies: India Rejects the "Hot News" Doctrine


In an extremely well crafted decision, Justice Bhat of the Delhi High Court reversed a lower court decision and rejected the application of the “hot news” doctrine to India.
I’d recounted the facts in an earlier blog post:

 

 

“Star India (the plaintiff) was given an exclusive right to broadcast matches organized by the Board of Control for Cricket in India (BCCI). In particular, it was given a 72 hour monopoly over all media rights, including the right to all information emanating from the event such as real time scores etc. In return, Star paid BCCI a magnificent sum of money to BCCI.
The defendants (essentially telecom service providers) captured the scores on a real time basis and updated their subscribers through text messages (SMSes). Star TV sued, based on the “hot news” doctrine and the tort of unfair competition/unjust enrichment claiming that their exclusive rights under the agreement with BCCI were rendered redundant and that the defendants should not be allowed to “misappropriate” this quasi property right in real time “information” pertaining to the matches.”
We’ll bring you a detailed assessment of Justice Bhat’s jurisprudentially sound decision soon. But let me extract the crux of his decision here:
“Creating property (or quasi-property) rights in information – which is what the plaintiffs (Star and BCCI) request the Court to do in this case – stands to upset the statutory balance carefully created by the legislature through the Copyright Act. In a domain where Parliament has stepped in to create a statutory regime, an exercise of creating „supplementary‟ rights in common law would well result in obstructing the legislative scheme, as would be the case here.
The argument of BCCI that it is under a duty (by relying on the Supreme Court judgment in Secretary, Ministry of Information and Broadcasting)to monetize broadcasting and other rights, and is doing exactly that, by permitting Star to monetize hot-news by licensing mobile rights is misconceived, to put it mildly. One can “monetize” or license only that over which one has property rights. Neither Star nor BCCI can be permitted to say that mentioning “mobile” rights and auctioning them, would ipso facto legitimize the parcelling away of right to disseminate information, without first establishing that the right or exclusive domain over such rights existed in the first instance.”
As evident from the above, Justice Bhat is wary of importing a foreign doctrine and upsetting the fine balance between private monopolies and the public domain sought to be drawn out by Parliament in several IP statutes. I’d hinted at this whilst highlighting the implications of the single judge decision (which stood in stark contract to Justice Bhat’s decision in that it resonated at many places with conceptual fogginess), noting as below:

 

“1. Creative lawyers will no doubt squeeze in many more alleged “wrongs” into this new IP box. This is potentially problematic, given that any new creation invariably takes away from what might have been the “public domain” and principles of free competition. The key question for discussion is: do we need a separate tort of unfair competition at all? Could one argue that existing IP regimes balance out competing interests appropriately and carve out what can be cleaved off as “private” property? To the extent that a new right needs to be created, is it not a “policy” call that ought to be taken by legislators after balancing out all competing concerns? Will not such an open ended common law tort open the floodgates for the adoption of “data exclusivity” norms in the pharmaceutical context, a distinct form of IP right that the Indian government has, time and again, refrained from legislating on.

 

 

Justice Mehta himself quotes with approval the cautionary note struck by Justice Holmes who dissented from the majority view in IMS and thought that this was an issue better left to legislators:
“…the creation or recognition by courts, of a new private right, may work serious injury to the general public, unless the boundaries of the right are definitely established and wisely guarded. In order to reconcile the new private right with the public interest, it may be necessary to prescribe limitation and rules for its enjoyment; and also to provide administrative machinery for enforcing the rules. It is largely for this reason that, in the effort to meet the many new demands for justice, incident to a rapid changing civilization, resort to legislation has latterly been had with increasing frequency.”
2. I am given to believe that industry associations have begun lobbying for a separate statute on unfair competition law. In which case, the above point I raise becomes even more important: should we expressly legislate principles of unfair competition or leave it open ended for the courts to keep populating as newer categories of alleged IP harms emerge?
3. With this ruling (as with many others in the IP space), it is clear that intellectual property is more about “investment” and less about “intellect”. But then, most of us already knew this, didn’t we? My PhD thesis calls for an explicit investment protection regime in the context of pharmaceutical investments. I argue that we must call a spade a spade and stop pretending that we’re predicating protection on some form of “intellect”.”
I would urge you to read Justice Bhat’s decision in full, as it demonstrates yet again his exceptional judicial craftsmanship, conceptual clarity and comparative sweep.

 

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Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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