In what is a pathbreaking judgment by the Delhi High Court, the court has ruled except in case of “qua momentary news” Cricket related updates will go into the public domain after 2 minutes. “qua momentary news”, Justice Valmiki J Mehta said, are “crucial momentary events” like a fall of a wicket, and “the same becomes stale news or ordinary news within seconds”, so it appears that for those, even the two minute lag will not be applicable. In a ruling that went in favor of defendents OnMobile Global, Idea Cellular and Piyush Agarwal (of Cricbuzz.com), the judge said that STAR India’s claim of copyright or property rights by virtue of its contract with the Board of Control for Cricket in India (BCCI), is not valid. “After two minutes the content/information in the broadcast can be commercially exploited by any person.” STAR had taken OnMobile and Cricbuzz to court in September.
Download the judgement here; it’s worth reading the entire document.
As per the judgement, while the BCCI might have copyright claims over audio and visual recordings of the Cricket match, it does not have any copyright over information pertaining to the match, once it comes in the public domain. “…merely because huge sums of money are invested that should not at all have any bearing,” the judgement said. The judge also said that there cannot be any property claims over information (details below), and “information which is contained in audio and/or visual recording cannot be allowed to be monopolized by the plaintiff inasmuch as no one can monopolize news in larger public interest. As already stated, allowing the BCCI or the plaintiff monopolize news would result in an absurd proposition of taking away the existence of news; good or bad; from the public domain which is legally impermissible.”
What this means
– Ball by ball updates of Cricket matches are will now be delayed by 2 minutes, except in cases of key events like wickets.
– Online updates and Mobile VAS related to Cricket are permissible, as long as they don’t directly reproduce audio and video feeds from Cricket Matches, and incorporate a 2 minute delay from the broadcast.
– Which events come under “qua momentary news” are likely to be a bone of contention between rights owners (like STAR) and other players like websites, telecom operators and VAS companies, but as long as there is a 2 minute delay, it’s fine to provide updates.
– There were claims that the Madras High Court judgment allowed a delay of 6-8 minutes before commercial exploitation. We were not sure of the validity of that claim, but this sets the record straight – it’s two minutes before an event goes into public domain.
Notes from the judgment
Plaintiff Argument (STAR India): was that BCCI organizes cricket matches, then “any and every information pertaining to such cricket matches including the right to create and broadcast Short Message Services (SMSs) based on the said information emanating from the cricket match; and which value added services are being provided by the defendants in the suits; is the exclusive right/property of the plaintiff and therefore the engaging by the defendant in such activities for commercial benefit is illegal.” They’ve claimed exclusive rights over providing Value Added Services suchas SMS, and that the BCCI for a period of 72 hours has given exclusive rights to the plaintiff with respect to all the media rights in the agreement.”
Defendent Argument: all that they are doing is that “once information from the visual recording and sound recording comes into the public domain, a separate data base/information bank is created, and it is from that information bank that information is further transferred to various persons, including mobile service users. It is argued that once the direct footage; whether visual or audio or both; is not utilized by the defendants, there does not take place any violation of any right of the plaintiff, inasmuch as information existing in public domain is news which is not the subject matter of a copyright and news is that subject which no-one can monopolize.”
Copyright claims: applies to only 7 types of work – literary work, dramatic work, musical work, artistic work, a cinematograph film including video film, a sound recording, and a performer?s performance, and does not apply here.
Judgement On Claims of Property: The judgment says: “In my opinion, the argument urged on behalf of the plaintiff is really indeed very hollow and shallow for the reasons already given hereinabove. Merely by typing/printing a very properly typed/printed document called the agreement dated 10.8.2012, the same cannot result in creation of legal rights once no such rights can exist inasmuch as the law does not provide for or entitle or sanction the existence of any such rights. The argument of the plaintiff that in terms of the agreement giving exclusivity for 72 hours, it is only the plaintiff who has monopoly of all the news and information which emanates from the event called the cricket match, is an argument which just cannot sustain as the news in public domain is not and cannot ever be in the monopoly one or more persons especially because content/information from a copyright work is not the subject matter of copyright as per Sections 13,14 and 38A and thus no rights can be claimed in the same in view of the reading of the applicable provisions of the Act, and more particularly Sections 16 & 13(4). Also, if really media rights as alleged by the plaintiff can be created, then, I am sure why only for 72 hours even for 72 days or 72 weeks or 72 months or even for whatever period of years legally permissible under the Act, exclusivity could have been granted to the plaintiff with respect to such media rights.”
“The principle of fair dealing quite clearly goes against the concept of there being a monopoly for 72 hours in favour of the plaintiff with respect to news created from the event which is available in public domain because if fair dealing is permitted even with the original copyright work being the original visual recording and/or the original audio recording, then, surely qua only the content/information of the audio and/or visual recording the fair dealing concept will apply with stronger reason.”
Judgment In The Context Of The Earlier Madras High Court Judgment: “With all respect and humility I am unable to agree with the view which has been taken by the learned Single Judge of the Madras High Court in the case of M/s Marksman Marketing Services Pvt. Ltd. (supra) inasmuch as the learned Single Judge has not discussed the various important provisions of the Act, more particularly Sections 13,14 and 16 which I have discussed above, and also because the judgment more importantly does not draw a distinction between what is the original visual recording and/or the sound recording as contrasted with the underlying information which is contained in the said audio visual recording and which underlying information after coming into the public domain is utilized by the mobile service providers/telecom companies, including the present defendants, to create an information bank and thereafter that information bank is used for further commercial exploitation. The contents of an original recording, if utilized as a bank containing news and thereafter, the news contained in that information bank is exploited, the same cannot mean that what is being exploited is the audio and/or visual recording of the plaintiff to which only the plaintiff has a copyright. I therefore, respectfully disagree with the judgment of the learned Single Judge of Madras High Court in the case of M/s Marksman Marketing Services Pvt. Ltd.(supra) because of the detailed reasoning as given above in this judgment. 24(i) I must at this stage bring into discussion the repeated emphasis which was laid on behalf of the plaintiff on the aspect that gargantuan amounts of monies, running into hundreds of crores of rupees are invested in cricket matches, and therefore, automatically to the information qua the cricket matches/ mega events which the public likes, the plaintiff gets ownership/property rights which should be held to legally exist.
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(P.s.: Thanks for the anonymous tip, whoever you are)