[Alongwith CS (OS) 3232/2012 and CS (OS) 2780/2012]
Star India Pvt. Ltd (plaintiff) broadcasts matches organized by the Board of Control for Cricket in India (BCCI), thereby the plaintiff has rights over every information pertaining to the matches organized by Board of Control for Cricket in India (BCCI) including the right to create and broadcast Short Message Services (SMS’s), on the basis of the agreement, dated 10.08.2012 entered into between it (plaintiff ) and the BCCI. Through this agreement plaintiff claims exclusive rights of providing value added services through SMS’s for the 72 hrs.
The defendants are also providing information, including broadcast Short Message Services (SMSs) and value added services, pertaining to the cricket matches broadcasted by plaintiff, by creating a separate data base, wherein the information comes from the public domain. From that information bank the information is further transferred to various persons, including mobile service users. Hereby the plaintiff claims the infringement of its exclusive rights
- Whether the rights which are claimed by the plaintiff are or are not covered under the Copyright Act, 1957, or putting it differently, can they arise or exist independently of the Copyright Act, 1957.
- Whether the information which is available in the public domain after the first broadcast of the audio recording or visual recording or both, does plaintiff posses the exclusive right over the same.
ARGUMENTS BY PLAINTIFF & DEFENDANT
- The plaintiff states that in terms of its agreement dated 10.08.2012 with the BCCI, the plaintiff has exclusive media rights. Therefore for the period of 72 hours as provided in the agreement dated 10.08.2012 the media rights i.e. the right to all information emanating from the event, belong exclusively to the plaintiff.
In response to this defendant contended that plaintiff has no legal right as claimed, therefore the suits themselves be dismissed on the ground that once no legal right exists, the same cannot be enforced.
- It is argued that the rights of the plaintiff exist independently of the Copyright Act, 1957 (hereinafter referred to as “the Act”) i.e the copyrights provided under the Act are not exhaustive of the rights which can be created in respect of an event/live event. Therefore the rights mentioned under the agreement dated 10.08.2012 emanating from the event, belong exclusively to the plaintiff.
In response to the plaintiff’s statements, it is argued on behalf of the defendants that once there is a specific statute, being the Copyright Act which occupies the field, and which Act specifies only specific rights to a “performer‟ and his assignees, then, except such rights as specifically provided under the said Act, no other exclusive right, be it called by whatever name, can be claimed or granted to the performer and the assignee of the performer i.e BCCI or its further assignee (s).
- The plaintiff argued that the acts/performances of the performers in the cricket match event are recorded in a visual recording and/or the sound recording exists as specified in Section 38A. Therefore reproduction or communication of such work without a license or permission amounts to infringement of copyright as per Section 37 and 51. The defendant contented that visual or audio or both performances is/are not utilized by the defendants, so there no violation of any right of the plaintiff. As information existing in public domain is news, which no-one can monopolize.
COURT’S OBSERVATIONS AND FINDINGS
- On the observations made by court of the Copyright provisions and in order to decide the issue that whether the rights which are claimed by the plaintiff are or are not covered under the Act, the court discusses various provisions of the Copyright Act:
- Section 38: performer’s Right (to testify that whether the cricket match is performance), “Section 2(q) “performance”, section 2(qq) “performer” Section 38A. Exclusive right of performers, Section 13. Works in which copyright subsists, “Section16. No copyright except as provided in this Act
The court reached on the conclusion that a conjoint reading of Sections 13 and 38 shows that a copyright subsists in seven classes of works i.e. literary work, dramatic work, musical work, artistic work, a cinematograph film including video film, a sound recording, and a performer’s performance. That the Cricket Match falls within the ambit of the term ‘Performance’, therefore the cricketers, commentators and empires are Performers as under Section 2 (qq) of the Act.
- The court found the plaintiff’s argument hollow and shallow, as the agreement cannot result in creation of legal right. As the news in public domain is not and cannot ever be monopolized 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).
- The principle of fair dealing and public policy quite clearly goes against the concept of there being a monopoly for 72 hours in favor of the plaintiff with respect to news created from the event which is available in public domain.
- The court laid that the hiatus of two minutes is required with respect to the defendants using the content/information in the first audio and/or visual broadcast of the plaintiff, except of course with respect to momentary events for which there need not be any time lag.
- Thereby the obiter laid down by court is that the defendant should not use the original audio and/or visual recording except for fair dealing, but so far as the information which comes in public domain, there cannot be any bar upon the defendants to use the same.
- The suits are therefore dismissed by the Court.