The division bench of the Delhi High Court has set aside an order by the single judge of the same court, which gave STAR rights (albeit limited rights) over Cricket Scores and introduced the “Hot News” concept to India, wherein the STAR, via the Board of Control for Cricket in India (BCCI), from which it had licensed rights, had been given exclusive rights to report information via mobile for a certain period of time, while the news was still “hot”.
The court has held that ‘the plaintiffs claim for ad interim injunction on all counts, i.e. ownership of facts based on the “hot news” principle and the claims for unfair competition and unjust enrichment cannot be granted. Prima facie, it is also held that claims so made are statutorily precluded. Consequently, the impugned judgment and order of the learned Single Judge has to be and is set aside.’
So, as things stand today, mobile operators, content aggregators and other entities are free to provide SMS alerts and ball by ball commentary.
A critical statement in the judgment is that ‘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.” Essentially, this means that before you license rights, you should first establish that they exist.
STAR had taken online Cricket site Cricbuzz, mobile VAS major OnMobile Global, and telecom operator Idea Cellular to court over the reporting of Cricket scores and ball by ball updates on mobile, which STAR claimed exclusive rights over, licensed to it by the BCCI. The (now overturned) order of the single judge had meant that no one apart from STAR (by virtue of licensing mobile rights and mobile activation rights from the BCCI) was allowed to send Cricket score alerts via SMS (and apparently, based on STAR’s outreach to developers, via mobile applications). This led to the introduction of the concept of quasi-property rights to India, a decision which the division bench of the Delhi High Court has overturned.
If this order had not been set aside, it would have set a precedent for media businesses, wherein the right to report facts would have vested with the event organizer, and whoever licenses the rights to report those facts. The division bench of the Delhi High Court has recognized this, saying
“…the Court must keep in mind the constitutional implications of the right sought to be created, in this case, upon the right to freedom of speech. Recognizing the doctrine of unfair competition would inevitably restrict the defendants (as also others rights in future cases) ability to disseminate information, undoubtedly a crucial component of Article 19(1)(a)”
Unless STAR appeals this judgment (possibly in the Supreme Court of India), it is likely that this is how things will remain. We’ve reached out to STAR, Cricbuzz, Onmobile and Idea Cellular for comment. Idea Cellular has declined to comment on this order.
You may read the entire 75 page order here. We’ve linked to our extensive coverage of this case of historical significance, below.
Some notes from the judgment:
1. Some arguments by Idea Cellular, OnMobile and Cricbuzz:
- No statute creates a property right in scores, and the previous order had erred in creating new property rights. Facts cannot be “owned” by anybody either under statute or common law. “Exclusive rights over Match Information generated during a cricket match, which is purely factual information, incapable of copyright protection”.
- Concerns over Hot News (information as property): “the scope of such right, difference between protected facts and those which are not protected, the term/period of such hot news protection, question of who is the first owner of the property i.e. organizer or the players, manner of licensing of the rights, applicability of provisions relating to such incidents, how can proprietors of such rights relinquish them to bring them into the public domain, compulsory licensing of such rights, exercise of jurisdiction by a regulatory body to grant such rights, collective licensing of events, protection accorded to foreign events, principles of fair dealings applicable to such events.”
- It is hard to conceive that someone or some entity can “own” an event; one may be an organizer. Certain aspects or features of an event may be capable of ownership. The sporting event as a whole is incapable of ownership.
- Not only STAR, but also others had the right to “monetize” the facts and information, over which there could be no monopoly.
2. Some arguments made by STAR, BCCI:
- What is asserted is not an intellectual property right, or a copyright. It is a unique property right, which stems out of a negative obligation of others not to use it commercially. People who have witnessed the game have paid for tickets, and TV viewers watch paid channels. Sharing on a non-commercial basis cannot be denied, but the obligation of a third party not to commercially exploit it is self evident.
- Match information does not pass into public domain upon broadcast of the match for third parties to freely and commercially exploit. There is a clear distinction between the information passing into public domain and information being available to the public. Star does not assert a Property Right against the members of the public at large, who are free to provide SMS updates of Matches gratuitously. It is however being asserted against competitors who are commercially exploiting such Match Information by disseminating it contemporaneously / almost instantaneously through SMS alerts, for a premium fee.
- Exploitation of Match Information through one mode of communication (such as television / radio broadcast) does not imply that BCCI has abandoned its right to exploit Match Information through all other modes of communication (such as mobile, internet).
- Match Information is time-sensitive and has commercial value only so long as it is disseminated while it is fresh i.e. “Hot”. Match information would be commercially worthless if it is stale or dated.
- The person who has brought into existence a product is entitled to exploit the revenue streams arising out of such product, to the exclusion of all others.
- BCCI claims that it owns property rights in the match information, subject only to public interest considerations like gratuitous dissemination by public, Mandatory Sharing of Feed, etc. which are not relevant to this case.
- Denying a basis in common law and equity for Star to assert its property rights / ownership in dissemination of Match Information through SMS updates would lead to denial of all property rights / ownership claims in the cricket match itself; furthermore, the entire structure of rights in sports event, including broadcasting rights, audio rights, internet rights, stadium rights etc. would be rendered nugatory.
3. Notes from the order
- BCCI has granted exclusive broadcasting rights to Star; other copyrights emanating from recording of the live event include the right to record, reproduce, broadcast etc. the actual event with other related rights. STAR’s contention in this case is not that their broadcast rights under the Copyright Act have been violated, but that the defendants are engaging in wrongful conduct in disseminating the underlying facts. If Parliament had intended to give protection to facts, “time sensitive information” or events (such as match information), there would have been conscious protection of those rights by express provision. Creating property (or quasi-property) rights in information 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
- The argument of BCCI that it is under a duty 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.
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. STAR has not been able to show, in the opinion of the court, how it has proprietary rights over the facts and information it seeks to protect – even for a limited duration. The court cannot grant protection to certain intangibles (in this case, match information) not covered under the specific statutory regimes.
- Under the Copyright Act, the copying or reproduction of match information is permitted. To say, now, that the doctrine of unfair competition prohibits the misappropriation of match information would either mean that misappropriation under common law can supplant the Copyright Act (which cannot be the case, as discussed above), or that copying and misappropriation refer to two distinct acts, which would be a distinction without a difference.
Star claims that the unauthorized dissemination of match information (i.e. misappropriation of its quasi-property) is unlawful, though in reality, once scaled down to the essence of the claim, it appears to be a claim for unauthorized copying of facts, which are not copyrightable. Quite clearly, in this case, according protection to match information would provide Star – in substance – a copyright in information/facts, a conclusion that Indian jurisprudence under the Copyright Act strongly militates against and equally, one that upsets – to say the least – the carefully crafted scheme of copyrightability under the Act.
- The Court must keep in mind the constitutional implications of the right sought to be created, in this case, upon the right to freedom of speech. Recognizing the doctrine of unfair competition would inevitably restrict the defendants (as also others rights in future cases) ability to disseminate information, undoubtedly a crucial component of Article 19(1)(a).
http://www.medianama.com/2013/09/22...-cricket-scores-rejected-by-delhi-high-court/
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The court has held that ‘the plaintiffs claim for ad interim injunction on all counts, i.e. ownership of facts based on the “hot news” principle and the claims for unfair competition and unjust enrichment cannot be granted. Prima facie, it is also held that claims so made are statutorily precluded. Consequently, the impugned judgment and order of the learned Single Judge has to be and is set aside.’
So, as things stand today, mobile operators, content aggregators and other entities are free to provide SMS alerts and ball by ball commentary.
A critical statement in the judgment is that ‘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.” Essentially, this means that before you license rights, you should first establish that they exist.
STAR had taken online Cricket site Cricbuzz, mobile VAS major OnMobile Global, and telecom operator Idea Cellular to court over the reporting of Cricket scores and ball by ball updates on mobile, which STAR claimed exclusive rights over, licensed to it by the BCCI. The (now overturned) order of the single judge had meant that no one apart from STAR (by virtue of licensing mobile rights and mobile activation rights from the BCCI) was allowed to send Cricket score alerts via SMS (and apparently, based on STAR’s outreach to developers, via mobile applications). This led to the introduction of the concept of quasi-property rights to India, a decision which the division bench of the Delhi High Court has overturned.
If this order had not been set aside, it would have set a precedent for media businesses, wherein the right to report facts would have vested with the event organizer, and whoever licenses the rights to report those facts. The division bench of the Delhi High Court has recognized this, saying
“…the Court must keep in mind the constitutional implications of the right sought to be created, in this case, upon the right to freedom of speech. Recognizing the doctrine of unfair competition would inevitably restrict the defendants (as also others rights in future cases) ability to disseminate information, undoubtedly a crucial component of Article 19(1)(a)”
Unless STAR appeals this judgment (possibly in the Supreme Court of India), it is likely that this is how things will remain. We’ve reached out to STAR, Cricbuzz, Onmobile and Idea Cellular for comment. Idea Cellular has declined to comment on this order.
You may read the entire 75 page order here. We’ve linked to our extensive coverage of this case of historical significance, below.
Some notes from the judgment:
1. Some arguments by Idea Cellular, OnMobile and Cricbuzz:
- No statute creates a property right in scores, and the previous order had erred in creating new property rights. Facts cannot be “owned” by anybody either under statute or common law. “Exclusive rights over Match Information generated during a cricket match, which is purely factual information, incapable of copyright protection”.
- Concerns over Hot News (information as property): “the scope of such right, difference between protected facts and those which are not protected, the term/period of such hot news protection, question of who is the first owner of the property i.e. organizer or the players, manner of licensing of the rights, applicability of provisions relating to such incidents, how can proprietors of such rights relinquish them to bring them into the public domain, compulsory licensing of such rights, exercise of jurisdiction by a regulatory body to grant such rights, collective licensing of events, protection accorded to foreign events, principles of fair dealings applicable to such events.”
- It is hard to conceive that someone or some entity can “own” an event; one may be an organizer. Certain aspects or features of an event may be capable of ownership. The sporting event as a whole is incapable of ownership.
- Not only STAR, but also others had the right to “monetize” the facts and information, over which there could be no monopoly.
2. Some arguments made by STAR, BCCI:
- What is asserted is not an intellectual property right, or a copyright. It is a unique property right, which stems out of a negative obligation of others not to use it commercially. People who have witnessed the game have paid for tickets, and TV viewers watch paid channels. Sharing on a non-commercial basis cannot be denied, but the obligation of a third party not to commercially exploit it is self evident.
- Match information does not pass into public domain upon broadcast of the match for third parties to freely and commercially exploit. There is a clear distinction between the information passing into public domain and information being available to the public. Star does not assert a Property Right against the members of the public at large, who are free to provide SMS updates of Matches gratuitously. It is however being asserted against competitors who are commercially exploiting such Match Information by disseminating it contemporaneously / almost instantaneously through SMS alerts, for a premium fee.
- Exploitation of Match Information through one mode of communication (such as television / radio broadcast) does not imply that BCCI has abandoned its right to exploit Match Information through all other modes of communication (such as mobile, internet).
- Match Information is time-sensitive and has commercial value only so long as it is disseminated while it is fresh i.e. “Hot”. Match information would be commercially worthless if it is stale or dated.
- The person who has brought into existence a product is entitled to exploit the revenue streams arising out of such product, to the exclusion of all others.
- BCCI claims that it owns property rights in the match information, subject only to public interest considerations like gratuitous dissemination by public, Mandatory Sharing of Feed, etc. which are not relevant to this case.
- Denying a basis in common law and equity for Star to assert its property rights / ownership in dissemination of Match Information through SMS updates would lead to denial of all property rights / ownership claims in the cricket match itself; furthermore, the entire structure of rights in sports event, including broadcasting rights, audio rights, internet rights, stadium rights etc. would be rendered nugatory.
3. Notes from the order
- BCCI has granted exclusive broadcasting rights to Star; other copyrights emanating from recording of the live event include the right to record, reproduce, broadcast etc. the actual event with other related rights. STAR’s contention in this case is not that their broadcast rights under the Copyright Act have been violated, but that the defendants are engaging in wrongful conduct in disseminating the underlying facts. If Parliament had intended to give protection to facts, “time sensitive information” or events (such as match information), there would have been conscious protection of those rights by express provision. Creating property (or quasi-property) rights in information 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
- The argument of BCCI that it is under a duty 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.
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. STAR has not been able to show, in the opinion of the court, how it has proprietary rights over the facts and information it seeks to protect – even for a limited duration. The court cannot grant protection to certain intangibles (in this case, match information) not covered under the specific statutory regimes.
- Under the Copyright Act, the copying or reproduction of match information is permitted. To say, now, that the doctrine of unfair competition prohibits the misappropriation of match information would either mean that misappropriation under common law can supplant the Copyright Act (which cannot be the case, as discussed above), or that copying and misappropriation refer to two distinct acts, which would be a distinction without a difference.
Star claims that the unauthorized dissemination of match information (i.e. misappropriation of its quasi-property) is unlawful, though in reality, once scaled down to the essence of the claim, it appears to be a claim for unauthorized copying of facts, which are not copyrightable. Quite clearly, in this case, according protection to match information would provide Star – in substance – a copyright in information/facts, a conclusion that Indian jurisprudence under the Copyright Act strongly militates against and equally, one that upsets – to say the least – the carefully crafted scheme of copyrightability under the Act.
- The Court must keep in mind the constitutional implications of the right sought to be created, in this case, upon the right to freedom of speech. Recognizing the doctrine of unfair competition would inevitably restrict the defendants (as also others rights in future cases) ability to disseminate information, undoubtedly a crucial component of Article 19(1)(a).
http://www.medianama.com/2013/09/22...-cricket-scores-rejected-by-delhi-high-court/
..
