Cold water over hot news

One of the confirmations that litigation provides is that the black letter of the law is often grey. Even when clear legal boundaries are set, attempts are made to circumvent it.

This is visible in a recent case seeking to protect news under copyright law. News which constitutes a set of facts (as opposed to expression) is not protected by copyright law. However, this proposition was recently sought to be challenged by a broadcaster having exclusive rights to telecast cricket matches.

The broadcaster was aggrieved by mobile companies and websites giving live score updates. It stated that such information was valuable for a certain period of time after which it lost value, i.e. it was hot news. Such claims found favour with a single bench of the Delhi High Court. The Court injuncted companies from informing users of match scores in real time. The present blog post concerns an appeal which was filed against this single bench order.

a claim of over hot news

This injunction was granted on a tenuous reading of the Copyright Act that came up for challenge in appeal in the case of Akuate Intenet Services Pvt. Ltd. v. Star India Pvt. Ltd.. In appeal the Division Bench of the Delhi High Court held that there was no legal basis for the injunction. The claims made by the broadcaster were held to be in conflict with provisions of the Copyright Act and the injunction was set aside. Four broad points emerge from the judgement.

At the outset this includes the facial rejection of expansionary intellectual doctrines crafted through judicial decree. Intellectual Property Law though has a component of common law which is developed through precedent, is properly contained under legislation. These distinct statutes set out the rights, remedies and limitations of owners. In this respect the Copyright Act, 1957 excludes facts from protection. Also being a comprehensive enactment, the statute under Section 16 bars other legal protections for literary, audio-visual and broadcasted works.

the gradual creep of foreign law

Noticing this specific disability for making a claim for protection of match scores, resort was made to obscure legal doctrines of hot news, unfair competition and unjust enrichment. This fit a pattern of gradual expansion of intellectual property protection, sometimes even beyond the statute. Courts have in the past endorsed such propetisation. The subtext here is of development of the economy by rewarding business and discouraging infringement.

Generally, the intellectual property bar has cheered such extensions. With incorporation of foreign remedies such as anton pillar and john doe orders being greeted with commendations. However in the instant case the High Court breaks this unstated preference and holds that the wording of Section 16 of the Copyright Act, 1957 prevents granting protection through crafting new doctrines. In a sense, the foreign law cited to broaden Indian intellectual property law, remains foreign.

the proper role of adjudication

Second, making such determination the Court recognises the proper role of adjudication. Here it restates its proper role by giving deference to a law enacted by legislature. It states that such law reflects the policy choices and compromises which are granted to property owners over content. Declining to enter into such a thicket the Division Bench in its words declines to, “upset the statutory balance carefully created by the legislature through the Copyright Act.”

There are sound reasons for adopting such an approach. A court in a property dispute is ill-equipped to form policy. For instance, a natural extension of protection to live cricket scores would be to live weather updates. Imagine if the same “hot news” claims were applied for a natural disaster. It is foreseeable that the payment of royalty or permission may prevent a timely warning.

This ties into the third point on the link between the right to freedom of speech and expression and copyright. Since, the freedom to speech and expression is not absolute and may be limited by law, the Court reasons a limited monopoly on works and legal censorship only permitted under the Copyright Act. As the judgement emphatically notes, “the Constitution visualizes that restrictions, saved by virtue of Articles 19 (2) and 19 (6) are in terms of enacted law, and not judge-declared fiats.”

predictability and private industry

Finally, even though it seems that the judgement goes against private industry, it does the opposite. Not only does expansionary Intellectual property create a tragedy of anticommons but it also spawns novel and uncertain judicial doctrines. Going against this, the Court reaffirms predictable statutory rules under the Copyright Act.

Such bright lines mitigate the possibility of infringement claims. At a time, where insurance products are made to cater to potential litigation and retrospective changes to tax laws dent investor confidence, the Judgement goes to help private enterprise. In a sense it paints more black on an otherwise grey legal canvas.

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