The Copyright Quandary regarding the Delhi High Court Rules on Live-streaming of Court Proceedings

Delhi High Court recently came up with the ‘Live Streaming and Recording of Court Proceedings Rules of the High Court of Delhi, 2022’. One of the ways whereby the court aims to curtail misuse of the recordings of court proceedings is by claiming copyright on these recordings. In this post, SpicyIP intern Niyati Prabhu discusses the issues surrounding access to law and the dilemma surrounding copyright. Niyati Prabhu is a second year student pursuing B.A.LL.B. (Hons.) from NUALS, Kochi.

The Copyright Quandary regarding the Delhi High Court Rules on Live-streaming of Court Proceedings

Niyati Prabhu

The Delhi High Court on 13th January 2023 has notified the ‘Live Streaming and Recording of Court Proceedings Rules of the High Court of Delhi, 2022’ in the Delhi Gazette to imbue greater transparency and inclusivity, and foster access to justice. The Court framed these rules as per Section 7 of the Delhi High Court Act, 1966 (Act 26 of 1966) and Article 227 of the Constitution of India. These are applicable to the Delhi High Court and the Courts and Tribunals over which it has supervisory jurisdiction. 

Access to law/legal proceedings: –

The right to access justice, which is guaranteed under Article 21 of the Constitution, also encompasses the right to access live court proceedings. In the Mirajkar case, it was held that “save in exceptional cases, the proceedings of a Court of justice should be open to the public”. In furtherance of judicial accountability, transparency and the rights of citizens to be informed of Court processes and reasoning, which come under the ambit of Article 19(1)(a), an e-Committee of the SC published the Draft Model Rules of Live Streaming and Recording of Court Proceedings in May 2021. These are based on the principles set forth in Swapnil Tripathi v. Supreme Court of India, which dealt with issues of confidentiality, privacy (prior consent) of litigants and witnesses, restrictions on access to proceedings of trials and the preservation of the larger public interest due to the sensitivity of the proceedings. The importance of live-streaming court proceedings was also noted in the “103rd Report on the Functioning of Virtual Courts/Court Proceedings through Video Conferencing” which was presented in September 2020 by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice upon being authorised by the Standing Committee of the Parliament.

Access to these court proceedings can also be construed as a part of Section 4 of the RTI Act, 2005 since the judiciary can be deemed as a ‘public authority’. However, it is pertinent to note here that the rule on live streaming of court proceedings will not automatically apply to all cases but is rather subjected to exemptions under Rule 5(2) of the Rules which include matters such as matrimony, child custody, sexual offences, termination of pregnancy, cross-examination etc.

While open courts serve as an instrument of inspiring public confidence in the administration of justice and act as a check on the judiciary, there is also an apprehension in some quarters that this could also result in the media misquoting the verbal observations made by judges, thereby resulting in media trials in ongoing high-profile cases. Since constitutional morality, not popular morality, is the standard to which Constitutional Court judges swear their allegiance, the veracity of various allegations made against judges or advocates for allegedly not carrying out their duties effectively can be assessed using (authorized) recordings, thereby increasing judicial accountability and transparency.

The Copyright Dilemma

Perhaps to counter the obvious and non-obvious ills of live-streaming judicial hearings, Rule 9.2 prescribes that unauthorized use of the live streaming will be punishable “as an offence under the Indian Copyright Act, 1957, Information Technology Act, 2000, and other provisions of law, including the law of Contempt.” While it’s understandable how and why the law of contempt and the IT Act will be applied, the position on copyright infringement is not particularly clear. Additionally, when the law of contempt already exists, it’s unclear what benefit copyright law brings. Some of the issues that arise include:

• Does the Delhi High Court own the Copyright of the Recordings in the first place, to be able to limit the permission for sharing the same?

While the recordings which are posted on the Court’s website as per Rule 8(4) are openly accessible, sharing of the same without authorisation is not permissible. Perhaps taking a leaf from the Swapnil Tripathi case, Rule 9(2)(i) read with Rule 9(2)(iii) state that the Delhi High Court shall have exclusive copyright in recordings and archival data and that the live-streaming should not be recorded, shared or transmitted in any form without a prior written authorisation of the Court. However, whether the Court has copyright on the live streams or not, is a debatable issue. According to a report by Vidhi Centre for Legal Policy, it is questionable whether the Court can claim a copyright in the recording of a hearing. Regarding “government works” as specified in Section 2(k)(iii), which include works which are made or published by or under the direction of control of “any court, tribunal or other judicial authority in India”, the government is the proprietor (first owner) of the copyright. However, the term “government”, according to Section 3(23) of the General Clauses Act, 1897, only states that it “shall include both the Central Government and any State Government”, raising the question of whether a High Court can own such copyright. This is also not specified in the Copyright Act. It is thus unclear whether rules can grant copyright to the courts when the legislature has not provided for the same. 

• Whether the fear of disseminating morphed/edited/out-of-context videos is strong enough to justify overriding the public interest in transparency, accountability and access to the law?

It is indeed possible that proceedings of prominent cases which are edited and uploaded on video-sharing websites like YouTube, which are then viewed globally, can result in unwarranted misinformation and media sensationalism. Therefore, the measure of limited sharing permission only to authorised individuals can perhaps preclude some such concerns. However, the need for bringing in the element of copyright especially when contempt proceedings can be initiated against unauthorised individuals who share these openly accessible recordings needs to be mooted. Freedom of the press is an integral component of the right to freedom of speech and expression guaranteed under Article 19(1)(a), as was expressly enunciated in Sakal Papers (P) Ltd. v. Union of India. Moreover, authorisation should not be denied for sharing snippets of the recordings for educational or training purposes to enable non-lawyers to better understand the legal process since it facilitates the dissemination of the law, which citizens need to know. One must also question if copyright is the right way to go about resolving the menace of fake news or media trials of court proceedings rather than initiating contempt proceedings. It is true that morphed videos can result in the widespread dissemination of fake news, but merely providing authorisation to access these recordings to a few individuals cannot solve this issue. In juxtaposition to this, legislative proceedings are regularly telecast on Sansad TV. A question arises as to why the level of transparency is higher for live-streaming of Parliamentary proceedings as opposed to that of court proceedings particularly when there are many stakeholders who would benefit from accessing these proceedings. These recordings could aid law students, legal researchers, lawyers, and policymakers along with the common citizenry who might otherwise not have access to attend these proceedings in person. One must analyse whether restricting access to these recordings for diminishing the menace of fake news can justify discounting the public interest needs and benefits from transparency and accountability and access to the law.

• Are there safeguards against chilling effects that prevent widespread valid fair deal usage?

Even proceeding with the assumption that copyright protection does exist – as far as the scope of infringement in live streaming is concerned, there is scope for availing fair dealing exceptions like educational purposes, news reporting etc., as per Rule 9(2)(iv). Unauthorised usage of the live stream will be punishable under the Copyright Act, 1957, the Information Technology Act, 2000 and the Contempt of Courts Act, 1971. Aside from  Section 52(1)(q)(iv) of the Copyright Act, 1957, which permits reproducing judgments, a number of other fair dealing acts are expressly permitted by other parts of Section 52 of the Copyright Act – including private use for research, and criticism and review. If these recordings of the proceedings are only shared with ‘authorised’ personnel, would this not prevent the fair dealing usage of these streams? Furthermore, when there are so many penal provisions attached to ‘infringement’, would there not be a chilling effect against fair dealing usages? Since the norm is to permit the dissemination of crucial information to the public in order to make it accessible to the general public, there is no valid justification for treating footage any differently. Furthermore, according to Rule 9(2)(iv), recordings are barred from being used for commercial, advertising or promotional purposes, which may not facilitate the widespread dissemination of the footage; while, in contrast, the Court permits private publications to profit from publishing its judgments.

Concluding Remarks

Many countries across the globe live-stream or allow live-streaming of their court proceedings including the USA, UK, Canada, Brazil, Mexico, Australia, South Africa etc. At a quick glance, it appears that at least in some jurisdictions, for unauthorised usage, contempt of court proceedings are initiated rather than copyright. Either way, for clarity in the Indian context, it would be useful to have a more substantial answer to the question of why copyright norms need to be brought about when there is already a provision for initiating contempt proceedings against individuals who are infringing the rules of the Court. While live streaming will indeed promote transparency and accountability in the judiciary, there is no denying that proceedings available in the public domain could lead to some issues of concern, and so close monitoring of the whole process needs to take place. On the other hand, a hurried and unplanned introduction is likely to put the Court smack dab in the heart of the fake news and misinformation quagmire. There are of course a number of other issues, which are outside the scope of the current blogpost, some of which can perhaps be easily handled with some thoughtful regulation, such as concerns about the privacy of litigants, issues related to technical and infrastructural needs vis-a-vis cyber security threats, etc.  Although, the identified concerns are issues to consider, for the reasons described above some re-examination of the copyright issues would be helpful.