News means any report on the current happening and reporting to the third person in reference to the interest of the person using that report. In the contemporary time the news have importance due to the use of the same in relation to the field they are connected with. People use news for taking decision in this competitive world hence the news has taken an important role in regards to the decision making process. Further the definition of news has also changed with the change in time, now news just does not include current affairs but it also include the live events which are televised around the world and hence the question related to the infringement of copyright on the live events when the news are used by a person without the authorization of the owner of the copyright in those live events. This has given rise to the hot news doctrine which is related to the use of the content of the live events by third party.
Meaning of Hot News doctrine1
The “hot news” doctrine refers to a very specific aspect of copyright. Copyright, a legal doctrine with a long tradition, involves legal protections for works that have been published, for which there is clear authorship, and the economic value of which does not recede over short periods of time. “Hot news” is a relatively recent phenomenon. It refers to written material or the live televised events, often “facts,” that have value for a short duration, and which will soon move into the “public realm” losing their value completely. Given the short time-frames at stake, questions of how to determine value, and underlying doubts about whether it should be protected at all, analysis of hot news can quickly become an extremely complicated undertaking.
Origin of the Hot News doctrine
The Hot News Doctrine was initially recognized in the year 1918 in the United States in the case International News Service v. Associated Press2, whose oft-quoted observations have led to development of unfair competition law on a path distinct from the passing off principles: “The right of the purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not reasonably interfering with complainant’s right to make merchandise of it, may be admitted: but to transmit that news for commercial use, in competition with complainant which is what Defendant has done and seeks to justify is a very different matter. In doing this, Defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labour, skill and money, and which is salable by complainant for money, and that Defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself the harvest of those who have sown”
The second more recent case of National Basketball Association (NBA) v. Motorola3, involves the NBA’s who challenges of a text-message service developed by Motorola, designed to give subscribers updates of basketball scores. Motorola attempted to establish a text messaging service that would provide customers with immediate access to NBA scores on an ongoing basis. In establishing the service, Motorola neglected, deliberately it seems, to ask the NBA’s permission to use its scores. NBA had taken the position, since 1993, that it should and could limit the frequency of updates, because its scores change so frequently, essentially making the knowledge of NBA scores more valuable than those of other sports. The NBA had even negotiated a deal with a service called SportsSticker in which these rules were carefully articulated. Unlike the INS case, NBA did not make it to the Supreme Court, but only to the Second Circuit. As a result of changes in the federal Copyright law, the court found that NBA’s property claims had been preempted by federal law. Yet some forms of intellectual property could survive “preemption” if they met certain requirements. Those requirements include that the plaintiffs (1) gather information at a cost, (2) that the information is timesensitive, (3) that the use of the information by the defendant is “free-riding,” (4) that the defendant is offering a service in direct competition with the plaintiff’s, and (5) that the capacity to free ride threatens the existence of the plaintiff’s commodity. The court ruled that the NBA could not meet the tests as explicated in such rules, and hence Motorola was awarded a victory (although the service was unsuccessful over time). The ruling seems to have both clarified and complicated legal protections of “hot news.” On the one hand, there is now additional precedent for such protections in common law, but these are somewhat limited in scope, or at least difficult to demonstrate in court. Of particular difficulty, is determining the meaning of competitive “harm.”
In Barclay’s v TheFlyOnTheWall.com4, EFF the Citizen Media Law Project (CMLP) and Public Citizen urged the U.S. Court of Appeals for the Second Circuit to consider the critical First Amendment questions at issue in a case asserting “hot news misappropriation” a doctrine that a federal court used to put time limit restrictions on the reporting of facts. The defendant in the case TheFlyOnTheWall.com had gathered stock recommendations from investment banking firms like Merrill Lynch, Morgan Stanley and Lehman Brothers and reported them on its website. The firms sued TheFlyOnTheWall.com claiming that the information was “hot news” and the website was free-riding the firm’s work in creating the recommendations. A federal court agreed with the investment banks and ordered TheFlyOnTheWall.com to delay reporting of the information for two hours after the reports are released. The Court held that the plaintiff’s claim against the defendant for “hot news” misappropriation of the plaintiff financial firms’ recommendations to clients and prospective clients as to trading in corporate securities was preempted by Federal Copyright Law. Based upon the principles explained and applied in National Basketball Association v. Motorola (“NBA”), the Court held that because the plaintiffs’ claim fell within the “general scope” of copyright, 17 U.S.C. 106, and involved the type of works protected by the Copyright Act, 17 U.S.C. 102 and 103, and because defendant’s acts at issue did not meet the exceptions for a “hot news” misappropriation claim as recognized by NBA, the claim was preempted. Accordingly, the court reversed the judgment of the district court with respect to that claim.
The recent judgment Barclays Capital Inc v The flyont hewall .com5 case, wherein in the 2nd Circuit’s was a major setback for companies that want to strengthen the hot news doctrine and use it to shield themselves from new, online competition. “The ruling squelches a nascent effort on the part of some companies—largely news organizations—to protect their business models from the Internet.” Conversely, the ruling is a big victory for Google, Twitter and many other companies that aggregate information online, according to experts. “The decision is very important because there is a huge proliferation of news aggregators on the Internet. Theflyonthewall.com was doing something fairly routine in that business, and the court has said they can continue to do it.”
The concept of the Hot News doctrine is based upon the principle of value of time in relation to the news. A news which is quite relevant at a particular point of time would become redundant after the time has passed hence the commercial value is related to the time and if the news is used without the permission of the owner of Copyright in that event then it would be taken as infringement of Copyright.
The doctrine of hot news misappropriation has been recognized by the Indian Courts, in the case of M/s. Marksman Marketing Private Limited v. Bharti Tele-Ventures Limited, 2006, (unreported) the plaintiff sought to restrain a number of mobile companies from disseminating any information via SMS relating to “scores, alerts and updates” of the One Day Cricket Matches during India’s then scheduled in February, 2006 tour of Pakistan. The plaintiff claimed to have the exclusive right to do so throughout India vide contractual arrangements involving itself, the PCB and a company called Vetracom Pvt. Ltd. Further, the plaintiff claimed that it was necessary for every Mobile Operator within India to obtain its permission to exploit the “SMS Rights” in question. The Court delved into the issue of Hot News and held that:
“The telecast and the information of scores, alerts and updates emerging thereon arises out of cost of enterprise, organization, skill, labour and money invested by Pakistan Cricket Board (PCB)/Organizer. It is distributed or could be telecast only by those who will pay money for it like any other information/merchandise. For this purpose, Rights of providing Scores, alerts and updates via SMS technology is to be regarded as "Quasi Property" of PCB. .... Speed of telegraph, telephone and SMS technology would outstrip any speed known to human knowledge. It is a simple matter for the public to dial a number to get the Score, which the Defendants are transmitting, not as a service or gratuitously; but for profit which is called as the "Value Added Service". By transmitting the Scores, alerts and updates through SMS by getting information from the telecast of the game and creating SMS and transmitting the same for commercial purposes, is nothing but pirating information, infringing the Quasi Property Right of PCB/ organizers of the sports.”
However, despite holding that the defendant mobile companies were “not justified in providing Scores, alerts and updates over SMS,” the Court did not grant an injunction to the plaintiff. This was because it had failed to make a prima facie case since it had, inter alia, “not come out with correct particulars”, and the grant of an injunction at an interim stage in the circumstances of the case would have been tantamount to decreeing the suit. Nonetheless, as the Court itself pointed out, the case was the “first of its kind,” as the Hot News Doctrine had not earlier been applied by the Indian judiciary. Since the judgment of the Madras High Court in 2006, the Doctrine of Hot News has become more prominent in India’s copyright landscape and is likely to develop further as business in “Hot News” expands.
Recently in an appeal before Delhi High Court in case of New Delhi Television Ltd. v. ICC Development (International) Ltd. & Another6 one of the issue in the appeal was to considered whether the use of the footage in the present case is consistent with the principles of fair dealing envisaged under Section 39(b) and Section 52(1)(a)(iii) of the Copyright Act. The Court laid down certain factors in this regards so as to constitute the requisite consideration, firstly like the proximity of time of the sports news being put on the air to the sports event in this reference court held that the more proximate the time, the more the weightage to the use being unfair, although longer the event is, lesser will be the importance attached to this factor. Secondly another factor was considered which is whether the offending program competes with exploitation of the copyright by the copyright owner and which would include the effect of the offending use on the actual or the potential market for the copyright work and depend on competition, duration and repetition of use, likelihood of the sponsor of the special program being associated by the viewer base with the original event, goodwill thereof etc.
Hon’ble High Court while providing the relief to the broadcaster held that such effects and association would harm the economic interests of the original investors of the event, at the same time the court recognized that stale news is no news and thus news has to be reported while it remains current a lifespan of 24 hours as agreed upon between the parties under the principle of fair use.
The concept of Hot News Doctrine is a creation of the needs of the modern business world and the importance of a particular news at a particular point of time. The importance of the news or live events televised around the world can be protected through the concept of this doctrine. The commercial value of a news or a live event is dependent upon the time of the event and when the time is passed the news or event in particular loose its value. Hence for that particular point of time, when the event is on air, the rights remain with broadcaster and any one using the broadcast or the news related to broadcast without the permission of the broadcaster would be treated as infringement of the rights of the broadcaster as per Hot News Doctrine.