Arnab Goswami is all over the news! Just like he always wanted to be…except this time he can’t be accused of manufacturing it. Or perhaps not; after all, law suits are a great way of boosting TRP’s!

But best of all, this is an IP controversy! So how could SpicyIP not cover it?

Here is a quick piece I did for the Newslaundry some days ago reflecting on the various IP infringement charges that have been made against Arnab by Times Now. There is a proceeding before the Delhi high court, where Times Now have alleged that Arnab (along with his colleague Sridevi) stole confidential/copyrighted content from his ex-employer (Times Now) and used it for their new channel (Republic TV). Specifically the content pertained to a taped conversation between Lallu Prasad Yadav (former Bihar Chief Minister) and Shahabuddin (a jailed politician). And another recording of an interview between Sridevi (in her capacity as an employee of Times Now) and the now deceased Sunanda Pushkar.

The Times also filed a police complaint before the Mumbai police making the same charges, but with more force!

Since the piece appeared in Newslaundry, there have been further proceedings against Arnab and Republic TV (his new venture); one by India Today for apparently violating India’s telecom laws to rig TRPs. And a more recent one by Shashi Tharoor (Sunanda’s husband) who charged Arnab with defamation for insinuating that Tharoor murdered Sunanda.

Anyway, my Newslaundry piece only tackles the key IP dispute between Arnab and Times Now. Unfortunately, while I had the opportunity to explain the “passing off” point in some detail, I couldn’t devote enough time to flesh out the copyright and confidentiality aspects. So let me flesh it out a bit here and ask some of our more suave IP hands for their views.

Can a copyright be enforced against legally “suspect” content? Or is our copyright law content neutral? Nikita Garg (one of our star interns at SpicyIP) was able to pull up a copyright case which seems to suggest that our copyright law is not really content neutral. Rather courts may refuse to enforce copyright when the content reeks of illegality. See Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd., (CS (OS) 1889/2009 (Delhi High Court), where the Court endorsed the English precedent from Hyde Park Residence v. David Yelland, as below:

“The jurisdiction to refuse to enforce copyright, which I believe has been recognised comes from the court’s inherent jurisdiction. It is limited to cases where enforcement of the copyright would offend against the policy of the law….As Lord Mansfield CJ said in Holman v Johnson (1775) 1 Cowp 341 at 343: “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.””

The other issue that this case generates is this: In its police complaint (copy available in this piece here), the Times appears to suggest that they had no clue that either of the recordings existed. Which means that its quite possible that Arnab and Sridevi (his alleged partner in crime) procured this from elsewhere. How then could Times so aggressively allege copyright violation and theft of confidential information in their police complaint?

Or is the Times playing this deliberate game of not knowing, since it does not want to face the tough question of: if you had these tapes, why didn’t you air them earlier? Anyway one hopes this mystery will clear up in the days to come.

And now, here is the text of the Newslaundry piece for those interested:

Nothing sells like controversy. And who better to appreciate this than Arnab Goswami, the argumentative anchor who makes Fox News look chicken.

One might be forgiven, then, for thinking that the latest IP (intellectual property) brouhaha works in favour of Goswami and Republic to remain in the spotlight. But there’s more at stake here. Especially since the Times Group had lodged a criminal complaint alleging that Goswami along with his colleague Prema Sridevi stole valuable intellectual property from them.

Most commentators assume (and rightly so) that the key dispute between Goswami and the Times Group turns on the employment contract. A purely private matter between these two warring factions. Not quite. The “nation” is very much at the center of this dispute. At least, in so far as the trademark issue is concerned. For it is the public (me and you) that has to ultimately determine the fate of this dispute.

Even as regards the criminal complaint, the case may not be as open and shut as it is made out to be in the mainstream media.

Let me explain.

A key issue between the warring parties is this: Who owns the catchy slogan, “The Nation Wants To Know”? While trademark law does not bar protection for a rather trite phrase such as this, it demands a high degree of proof that the said slogan has come to be exclusively associated with the trademark owner. Let’s assume for the purpose of this piece that the Times Group will procure enough evidence to establish that the phrase is worthy of trademark protection.

As per the contract between the parties (relevant clauses of which were reproduced by the Delhi High court in its initial order issuing summons to Goswami), it is clear that the Times Group owns all IP rights in “all works” created by Goswami during the course of his employment including “brand names, logos, text, photos, articles, videos, audio…”

Further the clause also suggests that he cannot himself use any of the catchphrases or other works created, since the Times Group is vested with the “sole and exclusive” right over their exploitation.

Even as this controversy heated up, Goswami changed tack and began using a tweaked version of the catchphrase, that is, “The Nation Still Wants To Know”. I’m not sure if this is what he intended, but this clever adaptation gets him off the contractual hook: for, on a strict literal reading, the contract only covers the actual catchphrase used on Times Now: “The Nation Wants to Know”. One could well argue that this contractual vesting of rights does not necessarily extend to “variants” of the said catchphrase.

But then again, if the variant is confusingly similar to the original, shouldn’t this be actionable under trademark law? And this is where one needs to dive a bit deeper into the legal nuances.

Trademark protection is of two kinds. One comes through legal registration under the terms of the Trademarks Act. The other is for marks that are not yet registered, but boast a considerable reputation. In such cases, courts protect such marks through the common-law doctrine of “passing off”.

In the case at hand, the mark is yet to be registered and the Times Group has only filed an application for the same. Therefore, at this stage, Times Now can only resort to an action for passing off. The key test for passing off turns on “public” perception: would the public at large be confused by the usage of the mark by a third party (someone other than the proprietor)?

Even assuming the Times Group is the owner of the mark (under the terms of the contract), Goswami could well argue that the public associates the mark with him; perhaps even exclusively so. And if he sees it fit to jump ship and dole out his “Nation Still Wants To Know” spiel from another deck called the “Republic”, so be it. The public will associate the newly adapted mark with Goswami alone and there is no likelihood of confusion. More so, since he does this under the aegis of a new “Republic”.

No doubt this defies conventional wisdom, but then again, Goswami’s busting of the TRP charts with his unconventional pulping of panelists did too.

What of the other intellectual property (tape recordings of conversations, etc) that had allegedly been stolen from the Times Group? It is this “stealing” that forms the basis of the criminal complaint filed before the Mumbai police.

Even assuming these recordings constitute valuable IP (whether as copyrights or confidential information) and as per the contract, all of this belongs to the Times Group, the contract alone cannot determine the outcome. For at least one of these recordings appear to have been made without the consent of the parties, raising issues about its legality.

This alleged recording (most likely from a wiretap) is of a conversation between Lalu Prasad Yadav and Shahabuddin; a recording that even by the Times Group’s own admission (in the criminal complaint that it filed) was likely made without the consent of the parties concerned. In fact, the complaint appears to suggest that Times Now is not even sure that it possessed such a recording in the first place; and was made aware of this only after Goswami used it for Republic. Which then leads to the possibility that Goswami could well have got this recording from elsewhere and not necessarily whisked it out of the Times office when he left. All of this throws the copyright enforcement bit into some doubt, given the suspect subject matter of the claim.

The second recording pertains to a recorded interview with Sunanda Pushkar and Shashi Tharoor’s personal aide, Narayan. Here again, unless Pushkar and Narayan’s consent had been procured, the copyright enforcement may be a bit bumpy. And lastly, even assuming copyright were to exist in the above recordings, the law permits a fairly liberal exception when it comes to using such material for the purpose of reporting current news/events.

But then again, the taking of these “materials” (at least Pushkar’s recording) outside the premises of the Times office, as alleged, amounts to an independent offence under the terms of the Indian Penal Code (IPC), and perhaps even the IT act. These materials may also constitute proprietary “confidential information” belonging to the Times Group under the terms of the employment agreement with both Arnab and Prema. While these two latter factors may weigh against the accused, there is still plenty of legal wiggle room for them, as outlined earlier.

In short, the bottomline is this: the dispute is more complex and nuanced than made out to be. Did Arnab know these legal subtleties before he took a chance with the Times Group? Perhaps so but that would be a tad bit ironical given that nuance has never been Goswami’s forte. He’s been more of the trigger-happy type, merrily casting most issues into black versus white boxes.

The author wished to thank Nikita Garg and Pankhuri Agarwal for their help with this piece.

ps: Image from here.