Copyright is a right provided to the author in original literary, dramatic, musical, artistic, cinematography films and sound recording under the Indian Copyright Act, 1957. Apart from all the things mentioned above there is no Copyright provided under the Act. In the contemporary period the activities like sports events have taken a centre stage when it comes to the entertainment. The sport events are televised world wide through modern technology and they have a huge viewership around the world. A sports event has more number of viewers internationally in comparison to the viewer locally just because the reach of the viewer has increased due to the emergence of the modern technology. Now a question of contention which needs to be answered is regarding copyright in the sports events televised live on the various networks.
Under the Indian copyright Act 1957 there is no specific section or provision where the live sports event is protected. The only section where we can include the live sports event under the ambit of Copyright Act is section 13 (b) wherein the copyright is provided to the cinematography films.
If we look the definition of cinematography film under the Indian Copyright Act 1957 in section 2 (f), it provides that “cinematograph films means any work of visual recording on any medium produced through a process from which a moving image may be produces by any means and includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films”
Before moving towards the protection provided to the live sports events under the Indian legal system we look towards the protection provided under the US Laws to the same.
Protection under the US law
Under US Law there was no protection provided to the live events prior to 1976 but after 1976 protection was made available to the sports events when they are in fixed medium. The relevant case in this respect is National Basketball Assoc v Motorola Inc1. In this case, the court addressed the issue of copyrightability of sports content under US Copyright Law. While deciding the case, this court also addressed the “original works of authorship” issue. In addition to this justification, the Court explained why the sporting events could not be considered as copyrightable subject matter. The NBA’s complaint asserted six claims for relief: (i) state law unfair competition by misappropriation; (ii) false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (iii) false representation of origin under Section 43(a) of the Lanham Act; (iv) state and common law unfair competition by false advertising and false designation of origin; (v) federal copyright infringement; and (vi) unlawful interception of communications under the Communications Act of 1934, 47 U.S.C. § 605. Motorola counterclaimed, alleging that the NBA unlawfully interfered with Motorola’s contractual relations with four individual NBA teams that had agreed to sponsor and advertise SportsTrax.
The district court dismissed all of the NBA’s claims except the first -- misappropriation under New York law. Hence the issue before the Hon’ble US Supreme Court was “are the state law misappropriation and Lanham Act claims”.
The Hon’ble US Supreme Court held that “Sports events are not “authored” in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen.
Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.
In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute “original works of authorship” under 17 U.S.C. §102(a). Section 102(a) lists eight categories of “works of authorship” covered by the act, including such categories as “literary works,” “musical works,” and “dramatic works.” 3 The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.”
Indian Judicial scenario
The Indian copyright act has specifically provided the classes of works under Section 13 on which copyright subsists and apart from cinematography films there is no scope of any rights on the live event televised around India. The interpretation of Section 13 (b) is required in order to view the extent of protection provided to the live sports events. The infringement of the rights related to the sports event is a question need to be answered till date by Indian judiciary as the question has been raised but not properly answered by the Indian courts.
On minutely analyzing the definition of cinematography films provided under Section 2(f) of the Indian Copyright Act, 1957 it means the work which is recorded on a fixed medium be it video cassettes, tapes or compact-discs. A sports event which is televised live cannot be said to be recorded till it is saved in a fixed mediums mentioned above as they are televised when they are happening. If the work is first recorded and then broadcast over the network with some special graphics then it may be said the work is related to the cinematographic film.
In case of ESPN Stars Sports Vs. Global Broadcast News Ltd. and Ors.2 Plaintiff contended that it entered into an exclusive license Agreement whereby the former was granted exclusive rights to make live and/or delayed and/or pay broadcasts of feeds of the cricket matches by terrestrial television, cable television and/or satellite television in India and other specified countries. Allegation were made against the Defendants that it used the footage for creating program which they commercially exploited. Hence, the plaintiff sought permanent injunction to restrain them from utilizing the footage of plaintiff” the case was not decided on merits and the question regarding the Copyright in the live events remained unanswered as suit was dismissed on the technical grounds.
In case of ESPN Software India Private Ltd. Vs. Tudu Enterprise and Ors3. It is related to the Unauthorized Transmission of event under Section 37(3) of Copyright Act,1957. Defendants had unauthorisingly and without entering into contracts either with distributor of Plaintiff or with Plaintiff itself were transmitting networks channels of Plaintiff and showed events to their subscribers and violated Plaintiff’s broadcast reproduction right. The court has to decide whether, Defendant’s act of unauthorisingly transmitting networks channels of Plaintiff was justified - Held, Plaintiff’s channels were paid channels and viewed by persons who were subscribers through authorized cable operators - Therefore, only authorized licenses could use/distribute encrypted channels. Licensed cable operators used decoder or decryption device which have unique numbers given by Plaintiff to its licensed cable operators. Further, unauthorized cable operators indulge in illegal capturing of sports signals of Plaintiff which were illegally transmitted - Further, unlicensed broadcast of reproduction rights vested in Plaintiff by operating signals, transmit to India in foregoing manner was illegal, unfair and deserves to be prohibited -Defendants in suit had not signed any licensed agreement with Plaintiff’s distributors and was not authorized to distribute channels over their cable operators and transmission of these channels was violation of Section 37(3) of Copyright Act and thus was not justified
Even though court has recognized the rights to distribute live sports event is an infringement of Copyright of the official broadcaster under section 37(3) of the Indian Copyright Act, 1957 but if we look it from the definition and the provision provided under the Act as discussed above then it is quite appropriate to say that there is no provision related to copyright in the live sports events till date. The issue was not discussed in length in any of the cases till date. The interpretation provided in the NBA Case by US Supreme Court is appropriate to be applied in the cases where there is a claim of copyright in the live sports events.
In today’s time when the issue of copyright in the live sports event is of utmost significance there is a need that the issue must be thoroughly dealt with. The live sports events involve a huge amount of economic value that it cannot be ignored and be dealt in a manner which will lead to the death of the whole genre of events because nobody would like to invest in a sports event when he is not sure that how much rights he will be able to safeguard in case of infringement of his copyright. The Courts in India till date are providing recognition to the Copyright on live sports events but same is quite opposite to the law prevailing in the US in regards to the same subject. It is quite appropriate to analysis the definition of Cinematography films given under the Copyright Act, 1957 as the there is no other provision wherein we can say that protection is provided under the Act to the live sports events. If we differentiate as per the theory of NBA case then it is possible to provide the Copyright in sports event in fixed form when the same is recorded in any form. Hence there is a need of the hour that the law in this regards should be clear and should be in co-ordination with the international law.