Rights under Copyright Act v contractual rights

In response, 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). It is accordingly
argued that once the subjects are dealt with in the Act, the plaintiff cannot claim a
so-called contractual right merely because the same is so stated in the agreement

dated 10.08.2012, inasmuch as, no party can create rights which not only the
statute does not provide, but rather specifically excludes/bars.

IN THE HIGH COURT OF DELHI AT NEW DELHI

STAR INDIA PVT. LTD.

VERSUS
PIYUSH AGARWAL & ORS.


CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA

VALMIKI J. MEHTA, J 

NOVEMBER 08, 2012

1.
(i)
The present judgment will result in disposal of three suits, namely,
The only

contention which is urged on behalf of the plaintiff (who is the same in all the three
suits) is that when Board of Control for Cricket in India (hereinafter referred to as
“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. The plaintiff claims
exclusive rights of providing such value added services through SMSs on the basis
of the agreement dated 10.08.2012 entered into between it and the BCCI, and
which agreement gives exclusivity to the plaintiff qua such information and rights.
(ii)
The counsel appearing for the defendants have contrarily argued that
the plaintiff has no legal right as claimed, and on this Court coming to such a
finding that the plaintiff has no such legal right then, the suits themselves be
dismissed under Order XII Rule 6 of Code of Civil Procedure (CPC) on the
undisputed position so emanating i.e once no legal right exists, the same cannot be
enforced, no reliefs as prayed by the plaintiff can be granted, and the suits hence
must stand dismissed.

2(i)
The BCCI which is a defendant in this case supports the plaintiff and
states that the suits have to be decreed. The BCCI states that it has entered into an
agreement dated 10.8.2012 with the plaintiff whereby plaintiff has the rights as
claimed. The BCCI reaffirms its rights and those of the plaintiff in terms of the
agreement dated 10.8.2012.
(ii)
The rights of the BCCI (or any of its assignees including the plaintiff)
which I am deciding in this suit are only qua the issue of underlying
content/information contained in the audio visual broadcast of the event called a
cricket match i.e not of the audio visual broadcast itself as it is.
(iii)
The defendants who are referred in the present judgment are the contesting
defendants other than BCCI which is the author/producer of the cricket matches as
per the meaning of such terms under Copyright Act, 1957.
3.
The issue to be decided and the relevant facts are in a narrow compass
and are as under:
The plaintiff states that in terms of its agreement dated
10.08.2012 with the BCCI, the plaintiff has exclusive media rights. The media
rights and other related rights are specified at internal page 9 of the agreement and
which clauses of the agreement are reproduced in the later part of this judgment. It
is also urged that with respect to such media rights, plaintiff has exclusivity by
virtue of para 2 (and its various sub-paras) of the agreement dated 10.08.2012,

more particularly paras 2.2 and 2.3. It is argued that such 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. It is argued that the plaintiff
therefore not only has rights with respect to the first right of broadcast by diffusion
of information to the public, but also the plaintiff continues to even subsequently
have rights to the information which is broadcasted, although, the information
comes into the public domain. It is argued that for a 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.
4.
In response, 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). It is accordingly
argued that once the subjects are dealt with in the Act, the plaintiff cannot claim a
so-called contractual right merely because the same is so stated in the agreement

dated 10.08.2012, inasmuch as, no party can create rights which not only the
statute does not provide, but rather specifically excludes/bars.
5(i)
At the commencement of the discussion I must note an important
statement made on behalf of the defendants and which is that the defendants admit
that they are not using the audio visual recording (or any part of the same) which
is created by the plaintiff as it is, and all that the defendants 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.
(ii)
The present judgment therefore is a judgment only with respect to
information which is available in the public domain after the first broadcast of the
audio recording or visual recording or both, and to which original/identical
recording undoubtedly only the plaintiff has the exclusive rights. Such exclusive
rights the plaintiff has because the performers, and thereafter the assignee of the
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performers; being the BCCI in this case; have given such rights to the plaintiff.
Thus this judgment deals not with the exact and original video recording and/or
sound recording, but only to the content and the information contained in the audio
recording and/or visual recording which comes into a public domain pursuant to
the right of first broadcast which is exercised by the plaintiff.
6(i)
In order to appreciate the issue as to whether the rights which are
claimed by the plaintiff are or are not covered under the Act, and putting it
differently can they arise or exist independently of the Act, it is necessary at this
stage to refer to the various/relevant provisions of the Act. Wherever certain
language of the section(s) is underlined/emphasized, the underlining is mine and
added for emphasis. The relevant sections are hereinafter reproduced:-
(ii)
“Section 38 Performer’s right.- (1) Where any performer appears or
engages in any performance, he shall have a special right to be known as
the “performer‟s right” in relation to such performance.”
A reading of the aforesaid Section 38 shows that there are two important
expressions which are used viz a performer and the performance.
(iii)
What is the meaning of these two aforesaid expressions? The
meanings of these expressions are found in their definition contained in Sections
2(q) and 2(qq) of the Act which read as under:-
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“Section 2(q) “performance”, in relation to performer‟s right, means any
visual or acoustic presentation made live by one or more performers;
Section 2(qq) “performer” includes an actor, singer, musician, dancer,
acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or
any other person who makes a performance.”
(iv)
When a cricket match is played, there are various dramatis personae in
the performance. So far as the visual recording is concerned, the performers
essentially are the cricket players who play out the match. Also, and in a way, the
umpires are also an integral part of the live performance, and thus they can also be
said to be performers in the match. Though a cricket match is not specified under
Section 2(q) or Section 2(qq) as reproduced above, in view of the categorical
language of these provisions, it cannot be doubted that a cricket match very much
falls within the definition of expression „performance‟ and qua such performance
the cricketers/players (as also umpires) would be a performers.
7(i)
The next relevant Section is Section 38A. This Section reads as
under:
“Section 38A. Exclusive right of performers._(1) Without prejudice to the
rights conferred on authors, the performer‟s right which is an exclusive right
subject to the provisions of this Act to do or authorize for doing any of the
following acts in respect of the performance or any substantial part thereof,
namely.-
(a) to make a sound recording or a visual recording of the performance,
including-
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(i) reproduction of it in any material form including the storing of it in any
medium by electronic or any other means;
(ii)
issuance of copies of it to the public not being copies already in
circulation;
(iii)
communication of it to the public;
(iv)
selling or giving it on commercial rental or offer for sale or for
commercial rental any copy of the recording;
(b) to broadcast or communicate the performance to the public except where
the performance is already broadcast.
(2) Once a performer has, by written agreement, consented to the
incorporation of his performance in a cinematograph film he shall not, in the
absence of any contract to the contrary, object to the enjoyment by the
producer of the film of the performer‟s right in the same film:
Provided that, notwithstanding anything contained in this sub-
section, the performer shall be entitled for royalties in case of making of the
performances for commercial use.”
(ii)
Section 38A deals with what are the legal rights of a performer. The
emphasized portion of the aforesaid Section shows that a performer‟s right is an
exclusive right only for specified purposes as stated in clauses (a) and (b) of sub-
section (1). In terms of the language of this provision, basically, the performer‟s
right would be making of a sound recording or visual recording of the
performance; reproducing the sound recording and the visual recording; issuing
copies of the recording or communicating the same to the public; and, selling or
otherwise doing a commercial act including with respect to the copy of the
recording. Clause (b) of Section 38 A (1) is relevant inasmuch as a clue is
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provided in this clause which seems to indicate that with respect to a broadcast
already made, qua the information which is disseminated through the first
broadcast in public domain (as against the audio visual recording itself) the
performer cannot claim a right, inasmuch as, Section 38A(1)(b) states that the
entitlement of the performer with respect to his performance rights is to broadcast
or communicate the performance to the public except where the performance is
already broadcast.
It is, therefore, a clear pointer to the fact that once a
performance is already broadcast it may be possible to say that except with respect
to the actual visual and audio recording of the performance itself, there may not be
other rights with respect to the information contained in the performance which is
already broadcast.
(iii)
Sub-section (2) of the aforesaid Section 38A states that once the rights
of the performer and his performance have been incorporated in a cinematographic
film, the performer cannot object to the commercial exploitation by the producer of
the film of the performance rights in the same film. As will be noticed hereafter,
the audio visual recording of the performance is a cinematographic film, as per the
meaning/definition of the same under the Act. Observations are also made as to
whether combination of the visual and audio recording; and which one normally
sees in the footage of the cricket match which is broadcast near simultaneous to the
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event taking place on the
turf; falls within the meaning of the expression
cinematographic film, and if yes what follows.
8(i)
Before however we dwell on „cinematographic film‟, continuing on
the subjects of a performance and performer‟s right, let us presently understand as
to what all are or can be the subjects which can be the subject matters of rights as
copyrights under the Act.
(ii)
What are the rights which can be the subject matters of a copyright
under the Act are contained in Sections 13 and 38 of the Act, and of which two
sections I have already reproduced Section 38 above. The other Section 13, qua its
relevant part, reads as under:
“Section 13. Works in which copyright subsists.-(1) Subject to the
provisions of this section and the other provisions of this Act, copyright
shall subsist throughout India in the following classes of works, that is to
say,-
(a) original literary, dramatic, musical and artistic work;
(b) cinematograph films; and
(c) [sound recording]”
9(i)
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.
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(ii)
It is extremely important to note that except with respect to the
aforesaid subject matters, copyright cannot/does not subsist in any other work, and
this is made absolutely clear by Section 16 of the Act, and which reads as under:-.
“Section16. No copyright except as provided in this Act – No
person shall be entitled to copyright or any similar right in any
work, whether published or unpublished, otherwise than under and
in accordance with the provisions of this Act or of any other for the
time being in force, but nothing in this section shall be construed as
abrogating any right or jurisdiction to restrain a breach of trust or
confidence.”
(iii)
There thus can be no manner of doubt once we read the heading of the
section “no copyright except provided in this Act”, and the emphasized parts of the
section reproduced above, that, there cannot exist a copyright in a „work‟ dehors
the Act i.e exclusive right in a work or any right in a work is only that which is the
subject matter of the Act, and merely because a particular nomenclature not stated
in the Act is sought to be given to a type of „work‟ which is urged to be not a work
under the Act, proprietary rights or property rights cannot be claimed in such a
work.
10(i)
Let us now understand the expression „work‟, and therefore, at this
stage, it is required to reproduce the definition of the expression „work‟ as
contained in Section 2(y) in the Act, and the same reads as under:-
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“Section 2(y) “work” means any of the following works, namely:-
(i) (ii) a cinematograph film;
(iii)
(ii)
a literary, dramatic, musical or artistic work;
a [sound recording]”
Though the definition of work may not include the performer‟s right,
however, this Section 2(y) has necessarily to be read with Section 38 which
provides for a performer to have a copyright in his performance and therefore
performance is a work in which copyright is created under the Act. What are thus
all those „works‟ in which copyrights can exist are those which are found on a
simultaneous reading of Sections 13 & 38 of the Act.
11.
The next question which arises is that if a person has a copyright in
the seven types of works as stated above, what is really the effect of having each of
such copyright i.e what entitlements flow from the different types of copyright
works.
The effect of having a copyright, i.e benefits to be derived from a
copyrighted work, are those as stated in Section 14 of the Act. As per this Section
14, the different subjects/ works which are the subject matters of copyrights,
cause/bring about different/manifold rights i.e, whereas one type of work gives
certain rights the other type of work gives separate rights; which can be either
larger or lesser. Since I am not required to dilate on the rights which are provided
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in Section 14, I am not reproducing herein the various sub-sections and the
different clauses of the same, and it is sufficient for this judgment to observe that
each copyright work has specific and specified consequential rights which are
contained in the aforesaid Section 14. For the sake of completion of narration, I
must state that the equivalent rights with respect to a performance of a performer
i.e qua a copyright in a performance under Section 38 (which is not dealt with in
Section 14) are those as contained in Section 38A reproduced hereinabove.
12.
A conjoint reading of all the aforesaid provisions bring out the
following salient conclusions:-
(i) There are a total of seven types of copyright works;
(ii) Each of such copyright works have specified rights as stated in
Sections 14 and 38A of the Act.
(iii)
On account of the specific bar contained in Section 16, except for the
specified copyrights, there does not/cannot exist any right or copyright in
any other work.
(iv)
A performer‟s right called a performance is a subject matter of a
copyright by virtue of Section 38. The performers in a cricket match are
essentially: (a) the players (b) the umpires, and (c) the commentators who
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give commentary, whether for the television or the radio or any other
medium of broadcast.
(v)
The acts/performances of the performers in the cricket match event
are recorded in a visual recording and/or the sound recording of the event,
and to which performance only those specific entitlements exist as specified
in Section 38 A, and nothing more.
(vi)
Reproduction or communication of the exact sound recording and/or
the visual recording, without a license or permission being obtained from
the owner of the visual/audio recording (or in violation of the terms of the
license or permission obtained) amounts to infringement of the copyright as
per Sections 37 & 51 of the Act, except when use of copyright material is
made permissible under certain provisions of the Act such as Sections 39
and 52.
13.
The most important essence which flows from all the conclusions
contained in the para just above is that except to the extent of original sound
recording and original visual recording of the performance, and the rights which
flow therefrom, there is no other right of a performer or his assignee with respect
to the audio and/or visual recording of the performance. Meaning thereby that the
underlying content/information is not made a subject matter of a copyright, and
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thus if only the content or information contained in an audio recording and/or a
visual recording is used for creating on information bank/data base, then, use of the
information/content cannot/does not amount to infringement of the copyright either
in the performance or in the audio and/or visual recording of the performance.
14(i).
At this stage for a better understanding of the difference between use
of the exact clips/parts of the original audio and/or visual recording and use only of
the information/content in such audio and/or visual recording without the exact
clips/parts of the original audio and/or visual recording, I would like to bring in
the discussion as regards the concept of version recording (or cover version as it is
now called). The discussion will also help in understanding the aspect that a
copyright which exists in original work is different from a new work created from
the content/information contained in original copyrighted work.
(ii)
A sound recording is created out of musical work and lyrics/literary work,
and such sound recording is a copyright work vide Section 13(1)(c) of the Act.
The copyright in a sound recording is in addition to the copyright in the underlying
musical and literary work which are themselves also subjects of a copyright. A
sound recording includes a subsequent original sound recording made from the
musical and literary work and which is called a version recording i.e a sound
recording made after a first sound recording is made by use of the musical work
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and literary work/lyrics. The principles qua version recording (now called cover
version) were contained in Section 52(1)(j) of the unamended Act which has now
been deleted, and the equivalent provision of which is now Section 31C of the
present Act.
In order to appreciate this concept of version recording, it is
necessary to refer to few important provisions in the Act, and which are
reproduced herein below:
“Section 2(ffa)
“composer”, in relation to a musical work, means the
person who composes the music regardless of whether he records it in
any form of graphical notation.
Section 2(o)
“literary work”......
Section 2(p) “musical work” means a work consisting of music and
includes any graphical notation of such work but does not include any
words or any action intended to be sung, spoken or performed with the
music.
Section 2(t) “plate” includes any stereotype or other plate, stone, block,
mould, matrix, transfer, negative (duplicate equipment) or other device
used or intended to be used for printing or reproducing copies of any
work, and any matrix or other appliance by which (sound recording) for
the acoustic presentation of the work are or are intended to be made.
Section 2(xx) “sound recording” means a recording of sounds from
which such sounds may be produced regardless of the medium on which
such recording is the method by which the sounds are produced.
Section 31C. Statutory licence for cover versions.- (1) Any person
desirous of making a cover version, being a sound recording in respect
of any literary, dramatic or musical work, where sound recordings of
that work have been made by or with the licence or consent of the owner
of the right in the work, may do so subject to the provisions of this
section:
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Provided that such sound recordings shall be in the same medium
as the last recording, unless the medium of the last recording is no
longer in current commercial use.
(2) The person making the sound recordings shall give prior
notice of his intention to make the sound recordings in the manner as
may be prescribed, and provide in advance copies of all covers or labels
with which the sound recordings are to be sold, and pay in advance, to
the owner of rights in each work royalties in respect of all copies to be
made by him, at the rate fixed by the Copyright Board in this behalf:
Provided that such sound recordings shall not be sold or issued in
any form of packaging or with any cover or label which is likely to
mislead or confuse the public as to their identity, and in particular shall
not contain the name or depict in any way any performer of an earlier
sound recording of the same work or any cinematograph film in which
such sound recording was incorporated and, further, shall state on the
cover that it is a cover version made under this section.
(3) The person making such sound recordings shall not make
any alteration in the literary or musical work which has not been made
previously by or with the consent of the owner of rights, or which is not
technically necessary for the purpose of making the sound recordings:
Provided that such sound recordings shall not be made until the
expiration of five calendar years after the end of the year in which the
first sound recordings of the work was made.
(4) One royalty in respect of such sound recordings shall be
paid for a minimum of fifty thousand copies of each work during each
calendar years in which copies of it are made:
Provided that the Copyright Board may, by general order, fix a
lower minimum in respect of works in a particular language or dialect
having regard to the potential circulation of such works.
(5) The person making such sound recordings shall maintain
such registers and books of account in respect thereof, including full
details of existing stock as may be prescribed and shall allow the owner
of rights or his duly authorised agent or representative in inspect all
records and books of account relating to such sound recording:
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Provided that if on a complaint brought before the Copyright
Board to the effect that the owner of rights has not been paid in full for
any sound recordings purporting to be made in pursuance of this section,
the Copyright Board is, prima facie, satisfied that the complaint is
genuine, it may pass in order ex-parte directing the person making the
sound recording to cease from making further copies and, after holding
such inquiry as it considers necessary, make such further order as it may
deem fit, including an order for payment of royalty.
Explanation-
For the purposes of this section “cover
version” means a sound recording made in accordance with this
section.]”
15(i)
In order to appreciate the aforestated sections, and more particularly
Section 31C, an example is required to be given. Suppose a famous singer sings
particular lyrics and which singing is accompanied by an orchestra which plays out
music. This performance involves various works and use of all such works jointly
results in a new copyright work called the sound recording which let us call the
first sound recording. In such first sound recording there are a total of three
copyrights which get amalgamated to create one consolidated work. The first
copyright is in the lyrics created by the lyrics writer i.e. the literary work. The
second copyright is in the musical work. The third copyright is in the performance
by the performers viz the singer and the persons comprising the orchestra.
To be noted is that music is different from sound i.e. music only means what
are the musical notes which are found on the paper or other writing medium, and
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not what we hear. What we hear, and which is called music in layman‟s terms, is
really a sound created by the musician by playing an instrument in terms of
musical notes (which is the musical work and the subject matter of a copyright)
and performance brings about a „sound recording‟.
Thus music as a layman
understands is different from what is „music‟ under the Act because when a song is
sung, and which singing is accompanied by an orchestra, there results in what is
commonly known as the musical work, however really, this normal concept of
musical work is a misnomer inasmuch as the combination of all the three aforesaid
works is really what is a „sound recording‟ as per Section 2(xx) of the Act.
(ii)
Once a combination of the aforesaid three works being the lyrics, music and
the performer‟s works together, is performed and a sound recording created, that
sound recording which is the first sound recording, is recorded on what is known
as a „plate‟ under Section 2(t) of the Act. It is from such plate that subsequently
copies are prepared and the right to prepare such copies is one of the copyrights
qua a copyright work which is specifically provided under Section 14(e) of the
Act. Therefore, no one can prepare any copies either from the original plate or the
copies of the work (which are also a subject matter of the copyright) unless
permission or license is taken from the author of the sound recording.
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(iii)
After the first sound recording is made, then, if and after permissions
are taken from the authors of the musical work and the lyrics writer which formed
the basis of the first sound recording, another band of orchestra with the singer (i.e.
another set of performers) can by their performances on the basis of the existing
musical work and the lyrics, cause to come into being a new sound recording. This
second/subsequent sound recording is called a version recording/cover version.
This new/second sound recording itself is a subject matter of a copyright by virtue
of Section 13(1)(c) of the Act and there exist the entitlements on the basis of such
sound recording to exercise rights as provided in Section 14(e) of the Act. To
further clarify, on utilization of original musical work and the lyrics from which
the first sound recording is made, various independent/subsequent sound
recordings can be made, and each of which subsequent sound recording would be
original sound recording for being the subject matter of the copyright under
Section 13(1)(c) of the Act. Of course, at the cost of repetition, no sound recording
can be created from the original musical work or the lyrics unless license is taken,
whether contractual or statutory under the Act, from the authors of the musical
work and the literary work/lyrics.
16.
I
have
given
the
aforesaid
detailed
narration
and
discussion/explanation with respect to sound recording and version recording
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inasmuch as it is extremely important to note that copyright exists only with
respect to a performer‟s work and the „visual recording‟ and the „sound recording‟
where that performance is recorded inasmuch as the only expressions as are found
in Section 38A are of „visual recording‟ or „sound recording‟.
There is no
copyright provided in the underlying content/information as contained in the audio
visual recording. Once the sound recording and/or the visual recording comes in
the public domain, then the information which comes in the public domain from
the content of the audio and/or visual recording is only an underlying
content/information to which there is no copyright granted under the Act. There is
a difference in the audio visual recording to which there is a copyright and which
is to be contrasted with the underlying content of the audio visual recording i.e in a
way similar to the underlying works in a subsequent/second sound recording
created from the original copyright works being the musical notes and lyrics.
Whereas the underlying original works viz the musical and literary works are given
specific protection under Section 13(4) although various original sound recordings
are created therefrom, however, to the underlying content/information in the audio
visual recording no protection is granted similar to the protection granted to the
underlying musical and literary work by Section 13(4).
The underlying
information/content itself/ only therefore cannot be raised to a pedestal of a legal
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right equivalent to a copyright or something equal to copyright; whatever be the
nomenclature given for such right i.e. a common law right or property right and so
on.
This conclusion also becomes necessary in view of the categorical bar
contained in Section 16 of the Act.
17(i)
After having set out in some detail quite a few sections of the
Copyright Act let me exactly quote what has been argued on behalf of the plaintiff
for claiming rights with respect to the information which emanates from the event
called a cricket match, and which information/ content is used and further provided
by the defendants by means of value added services to its subscribers of the mobile
services. What the plaintiff claims is this:-
(ii)
Any information pertaining to the event is property, and such property
automatically has the consequence that the said property can only be exploited by
the person who owns the same. The argument is buttressed on behalf of the
plaintiff by referring to the following clauses of the agreement dated 10.8.2012
entered into between it and the BCCI:-
“D. Prior to the date of submission of Bids, the Licensor made certain
amendments to the ITT and the Media Rights License Agreement forming part of
the ITT vide a separate document cited Clarifications to the ITT BCCI
International & Domestic Series (2012-2018) dated 29th March, 2012 (the
“Clarification”) which were deemed to be incorporated into the ITT and the
Media Rights Agreement forming part of the ITT.
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Xxxx
xxxxx
xxxxx
xxxx
Media Rights means the Television and Internet Rights, Audio Rights and
Mobile Rights as further described in section 2 read with section 6 of this
Agreement and section 4 of the ITT;
Minimum Transmission Requirements means the minimum coverage and
delivery requirements set out in Section 6;
Mobile Activation Right means the right to make available any form of
BCCI-branded schedule match and score alert and application exploited via
SMS, MMS or any other form of Mobile Communications Technology or
Mobile Wireless Technology; It is clarified that no other form of
exploitation would be permitted such as competition, game fantasy Event,
predictor game, application or other activation which are expressly
prohibited.
Mobile Broadcast Technology means each wireless standard or technology
for the broadcast of audiovisual images to Mobile Devices including DVB-
H, DAB, DMB-T, DMB-S, IDB-T and Qualcomm‟s MediaFlo technology
and similar, related or derivative standards or technologies devised or
invented in the future;
Mobile Communications Technology means any mobile wireless
communications technologies with radio frequency spectrum in any band to
enable or facilitate the delivery of, amongst other things, audiovisual content
to Mobile Devices for reception and viewing in intelligible form including,
General Packet Radio Services (GPRS), Global System for Mobile
Communications (GSM), Universal Mobile Telecommunications System
(UMTS) and any similar, related or derivative technology now known or
devised or invented in the future;
Mobile Delivery means the delivery or provision of access to audio and/or
visual material and/or audiovisual material for reception and viewing in an
intelligible form by means of Mobile Broadcast Technology and/or Mobile
Communications Technology;
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Mobile Device means any handheld portable personal device (whether now
known or hereafter developed) which is primarily designed or adapted to be
capable of being used while in motion and which when connected to a
mobile communications network uses Mobile Communications Technology
in order to send and receive voice and data (including without limitation
audio and audiovisual content);
Mobile Rights means the Mobile Activation Rights and the right to deliver
or provide access to the Feed or Footage, and Audio Feed, any Unilateral
Commentary and Unilateral Coverages in the Territory during the Rights
Period, for reception and viewing in an intelligible form on a Mobile Device
where the communication link(s) used in such delivery comprises, at least in
part, Mobile Communications Technology and/or Mobile Broadcast
Technology but excluding Television delivery and Internet Delivery;
Mobile Network means the mobile network on which the Mobile Rights are
exploited;”
xxx
xxxx
xxxx
xxxx
2.1 Subject to the terms and conditions of this Agreement, and in
particular, the provisions relating to minimum transmission obligations in
Section 6 and the provisions pertaining to exclusivity referred to in Section
2.3 below, Licensor hereby grants to Licensee the following Global Rights:
2.1.1 During the Rights Period A
(a) the Television Rights, the Audio Rights, the Internet Rights, the
Mobile Rights and the Licensee Mobile Rights on an Exclusive basis;
(b) The right to make available Interactive Services to viewers of
Footage subject to prior written consent of BCCI;
(c) the right to produce Unilateral Coverage and Unilateral
Commentary for transmission and delivery by means of Television Delivery,
Radio Delivery, Internet Delivery and Mobile Technology and pursuant to
the Licensee Mobile Rights; and
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(d) the right to incorporate excerpts of Footage in promotional trailers
and (in respect of such promotional trailers as incorporate excerpts of
Footage) to broadcast, transmit and otherwise make them available by
Television Delivery, Internet Delivery, Mobile Delivery and/or by any other
means, solely to promote and market Licensee‟s transmissions of the
Matches and not to promote any other licensee or third party goods or
services, and provided that the use of Footage does not suggest endorsement
of the Licensee or any of its Channels or services by Licensor, or any of its
officials.
xxxx
xxxx
xxxx
xxxx
Exclusivity and Retained Rights
2.2 If any right or licence granted to Licensee in Section 2.1 is expressed
as being granted on an “Exclusive” basis, this shall mean that Licensor has
not and, subject to Section 2.3 and 2.4 will not enter into agreements with
any other person which license or purport to license to such other person
such right save as qualified in this Agreement.
2.3 (i)
Licensee acknowledges and agrees that to the extent that any of
the Media Rights are granted on an Exclusive basis (as referenced in Section
2.1 above) such exclusivity shall, in respect of each Match, extend for a
period of 72 hours from the conclusion of such Match, (the “Exclusive
Period”) where after;
(a) In relation to Television Rights, after the Exclusivity Period, such
rights shall become non-exclusive to the extent that BCCI shall be entitled to
exploit the Archive Rights subject to any such clip used in relation to such
exploitation of Archive Rights being restricted to not more than 30 minutes
in duration;
(b) In relation to the Audio Rights, the Internet Rights and the Mobile
Rights, after the Exclusivity Period, such rights shall become non-exclusive
and BCCI shall also be entitled to exploit such rights in its discretion;
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(c) Licensee shall not be entitled to make available may Footage via any
Video-On-Demand or other on-demand service;
(d) Lisensee shall not be entitled to sub-license any Footage to any third
party; and
(e) Licensee shall not sue any Footage in conjunction with any non-Event
footage.
(ii) Accordingly, Licensee further acknowledges and agrees that subject
only to Section 2.3(iii) below, after the Exclusivity Period, Licensor shall be
free to itself transmit, make available and otherwise exploit, or to authorise
any other persons to so do, the Audio Rights, Internet Rights and the Mobile
Rights within the Territory on a nonexclusive basis without restriction
throughout the remainder of the Rights Period.
(iii) Licensor agrees that it shall not authorise any competitor of the
Licensee to transmit, make available of otherwise exploit the Audio Rights,
Internet Rights and the Mobile Rights in respect of a particular Match until
72 hours after the end of the relevant Event of which the Match forms part,
subject to the News Access provisions under Section 2.6 below.”
(iii)
It is argued on behalf of the plaintiff that by virtue of aforesaid
clauses, and including particularly Clause 2.3, BCCI for a period of 72 hours has
given exclusive rights to the plaintiff with respect to all the media rights which are
mentioned as aforesaid in the agreement. It is further argued that once all the
media rights are given exclusively to the plaintiff for 72 hours, and such media
rights include the exclusive right to the plaintiff to disseminate information even
through SMSs which are created by the defendants, then, such rights continue to
exist in the plaintiff for 72 hours in spite of the fact that a first broadcast has taken
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place and information is already in public domain. Such rights are argued to exist
in favour of the plaintiff although the SMSs are not copies of the original sound
and/or visual recording, and also in spite of the fact that only content/information
existing in the already broadcast audio and/or visual recording is used after
preparing an information bank created by the defendants.
18.
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
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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 crux of the matter and the issue is that it is not open to the
plaintiff to contend and canvass that even after the first broadcast is made the
information which is disseminated to the public i.e information comes in a public
domain, even this information which comes into public domain, continues still to
be the subject matter of the copyright claim of the plaintiff. Even public interest
doctrine bars the claim being set up by the plaintiff once no statute gives the
specific rights which the plaintiff claims.
A further reason to deny exclusivity of information to the plaintiff is
when we look at the concept of entitlement of fair dealing with respect to the
original/actual audio and visual recording itself and which is the subject matter of a
copyright of a performer or his assignee. 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
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qua only the content/information of the audio and/or visual recording the fair
dealing concept will apply with stronger reason.
19(i)
For completion of narration at this stage I would seek to reproduce the
Sections which define the meaning of broadcast, the right of rebroadcasting and a
cinematographic film. These provisions are contained in Sections 2(dd), 2(f) and
37 of the Act, and which provisions read as under:-
“Section 2(dd) “broadcast” means communication to the public-
(i)by any means of wireless diffusion, whether in any one or more of
the forms of signs, sounds or visual images; or
(ii)
by wire,
and includes a re-broadcast;]”
Section 2(f) “cinematograph film” means any work of visual
recording 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.
37. Broadcast reproduction right. – (1) Every broadcasting
organization shall have a special right to be known as “broadcast
reproduction right” in respect of its broadcasts.
(2) The broadcast reproduction right shall subsist until twenty-five
years from the beginning of the calendar year next following the
year in which the broadcast is made.
(3) During the continuance of a broadcast reproduction right in
relation to any broadcast, any person who, without the license of the
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owner of the right does any of the following acts of the broadcast or
any substantial part thereof,-
(a) re-broadcasts the broadcast; or
(b) causes the broadcast to be heard or seen by the public on
payment of nay charges; or
(c) makes any sound recording or visual recording of the broadcast;
or
(d) makes any reproduction of such sound recording or visual
recording where such initial recording was done without license or,
where it was licensed, for any purpose not envisaged by such
license; or
[(e) sells or gives on commercial rental or offer for sale or for such
rental, any such sound recording or visual recording referred to in
clause (c) or clause (d).]
Shall, subject the provisions of section 39, be deemed to have
infringed he broadcast reproduction right.”
(ii)
The definition of broadcast includes rebroadcast.
Obviously
rebroadcast is the exact and identical audio and visual recording. It is when the
original audio and visual recording is again broadcast it is called a rebroadcast.
Such rights of rebroadcast are given exclusivity under the Act as per Section 37
and which provides that with respect to the rebroadcast also no one has a right to
use the audio and visual recording except in accordance with the license which is
taken from the owner of the original audio and visual recording. Section 37 of the
Act, in a way could be said to be duplication, if not otiose, inasmuch as, once
really a combination of audio and visual recording creates a video
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recording/cinematographic film which is broadcasted, there would come into
existence a „cinematograph film‟ as per the provision of section 2(f) of the Act, and
a cinematograph film is itself a subject matter of the copyright as per section
13(1)(b) of the Act. Once a cinematograph film is a subject matter of the copyright
then surely no one can broadcast or rebroadcast or communicate to the public or in
any manner utilize the cinematograph film except with the consent of and the
permission of the owner/author of the cinematograph film, otherwise there would
result infringement by the broadcast or rebroadcast in terms of section 51 and the
related sections of the Act. Section 37 possibly therefore does not give any further
protection to an audio visual recording which is otherwise not protected and
provided for in the other relevant provisions of the Act for a cinematographic film.
Obviously, using without license, the cinematographic film/video recording or the
identical visual recording or audio recording or both, will amount to a clear
violation of the performer‟s rights which have been created under Sections 38 and
38A of the Act, and thus before such identical audio and/or visual recording of the
performance of the performer (which is recorded in the audio recording or visual
recording) is used, the necessary license under the Act will have to be taken from
the performer or his assignee.
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20(i)
Now I must refer to the two judgments which have been cited on
behalf of the plaintiff in support of its claims. The first judgment is a judgment of
the Division Bench of this Court in the case of New Delhi Television Ltd. Vs. ICC
Development (International) Ltd. & Anr. FAO(OS) 460/2012 decided on
11.10.2012. Another judgment which is relied upon is the judgment of a learned
Single Judge of the Madras High Court in the case of M/s Marksman Marketing
Services Pvt. Ltd. Vs. Bharti Tele-Ventures Ltd. & Ors. in O.A no. 78/2006 in CS
No. 74/2006 dated 11.2.2006.
(ii)
So far as the judgment in New Delhi Television Ltd. (Supra) case is
concerned the same was with respect to the exact (viz identical) audio and visual
broadcast of the cricket match. The judgment did not deal with the issue of
content/information which becomes available in the public domain after the first
broadcast of the audio and visual recording by the BCCI or its assignee (which is
the plaintiff in this case). Some of the observations in the said judgment are in
favour of the present plaintiff and some of the observations are in favour of the
defendants herein, and I would hereafter reproduce them, however, before that is
done it is necessary to refer to the pithy observations of the Constitution Bench of
the Supreme Court in the case of Padma Sundara Rao (Dead) & Ors. vs. State of
Tamil Nadu & Ors., 2002 (3) SCC 533, and which judgment states that the ratio of
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a case necessarily arises only with the facts of a particular case, and, even
difference of a single fact can make difference to the ratios of two cases. Para 9 of
this judgment reads as under:-
“9. Courts should not place reliance on decisions without
discussion as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of
the facts of a particular case, said Lord Morris in Herrington v.
British Railways, Board.
Circumstantial flexibility, one
additional or different fact may make a world of difference
between conclusions in two cases.” (underlining added).
The aforesaid judgment of the Supreme Court has also been followed
in subsequent judgments of the Supreme Court including in Krishna Mochi & Ors.
vs. State of Bihar, 2002 (6) SCC 81 and Charan Singh & Ors. vs. State of UP,
2004 (4) SCC 205. In view of the ratio of Padma Sundara Rao’s (supra) case, the
observations of the Division Bench of this Court in the New Delhi Television Ltd
(supra) have to be read confined to the facts and issue of that case, and which were
concerned with exclusive right/copy right of the broadcast as it is i.e the identical
audio and visual recording of the broadcast and not qua the underlying
content/information from the audio visual recording.
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21(i)
On behalf of the plaintiff, the following paragraphs of the judgment in
the case of New Delhi Television Ltd. (supra) are relied upon:-
“22. Conscious of the fact that our decision would not be irrelevant for the
purpose of adjudicating the suit filed by the respondents notwithstanding
the T.20 ICC World Cup Tournament being over on October 07, 2012
since respondents claim a right to all tournaments organized by ICC till the
year 2015, we propose to lay down the principles of law granting interim
injunction which have to be kept in mind while deciding future litigation,
and would be highlighting the facts which have to be objectively viewed,
for the reason we find that neither the impugned
decision nor the decision of the Division Bench of this Court in ESPN Star
Sports case (supra) has adverted thereto.
23. With reference to clause (b) of Section 39 of the Copyright Act 1957, it
has to be kept in mind that while reporting current events use, consistent
with fair dealing, of excerpts of a performance or of a broadcast do not
constitute infringement of the broadcast reproduction right or the
performers‟ right. Similarly, with reference to Section 52(1)(a)(iii) of the
Copyright Act 1957, the reporting of current events and current affairs but
as fair dealing do not constitute an infringement of the copyright held by
the broadcaster or a performer. Thus, one has to first determine : Whether
the offending activity is by way of reporting or otherwise. For if the
offending activity is not reporting, that would be the end of the matter; and
we caution : We are restricting our discussion to sports events and sporting
affairs.

26. Thus, two objective facts would determine whether the offending
activity is reporting or not. The first objective fact would be the nature of
the coverage with respect to information being diffused i.e. Is it result
oriented. And while analyzing the first objective fact, the second objective
fact to be simultaneously identified is : Is it primarily an analysis or
review of the sporting event. These facts are capable of a percipient
reception by a Judge i.e. are exoteric and are not esoteric and can be
objectively pleaded by parties and shown as objective facts to a Judge.
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27. If the offending activity fails to qualify as ‘reporting’ as understood
afore-noted i.e. is not result oriented but is by way of analysis or review
that would be the end of the matter. Injunction must follow without any
further analysis. Question of further considering whether the use of the
footage is fair or unfair does not arise because law permits a broadcast or a
performance to be used for reporting a current event or an affair and
thereafter places restrictions in the use by requiring the same to be in a fair
manner.

32. The freedom guaranteed to speech and expression by the Constitution
would confer the right to disseminate any kind of information and this
activity and would be non-actionable, provided the footages of the activity
is not misused, and as we would be highlighting hereinafter, the method of
disseminating information has not to be in a manner where the consumer
i.e. the viewer would be misled or enticed into believing that the sponsor of
the programme is a sponsor of the activity or is intimately associated with
the event.
33. Thus, the cry in the media or the press, which we may possibly hear
tomorrow after our opinion is pronounced, that freedom of the media and
the press to disseminate information has been curtailed by us, if at all, is
set at rest by us by noting that the freedom of the press and the media to
disseminate information was recognized by the society keeping in view the
press and the media which existed in the 19 th and the 20th Century i.e. as
organs of thought, of empowerment, of culture and of refinement. Not as
organs of entertainment and revenue generation; least of all as an organ
offering on its back, a piggy ride for commercial entities i.e. business
houses to advertise their products by commercializing the goodwill of
others.
34. The media is free to continue with its activities of disseminating
information in whatever manner the media feels and this is their
unhindered and unobstructed right, but not by offering its back for piggy
riding who have money bags. Besides, our view permits footages to be
used while reporting sports events in both hard news and sports news

programmes but only if the programmes were pre-existing news format
programmes and were not designed for a particular sports event and
specific advertisements are not solicited from third parties to be put on the
air in the programme or the third party has not voluntarily approached the
TV channel and paid special premium for its advertisement to be put on the
air.
35. We terminate the discussion on the first limb and proceed to the
second, but by making it clear that if the offending activity is not reporting,
no footage whatsoever can be used and the question of considering
whether the use of the footage is fair or unfair would not arise. It is only
when the activity is found to be reporting, issues of use being fair or unfair
would arise and thus our discussion hereinafter must not be misunderstood
to be expanding the rights. It has to be understood as limiting the rights
even when the activity is reporting, for the reason the use has to be a fair
use.

43. We take the example of ICC T.20 World Cup Tournament. The
organizers of the tournament spend millions of dollars to pay money to the
participating teams. It pays special prize money for the team which comes
first, second, etc. Then, special prize money is paid for the Man of the
Match, at each match, for the best catch etc. by the sponsors of the
tournament or the match. A special prize for the Man of the Series, the best
batsman of the series, the best bowler of the series is paid. And these are
by the sponsors of the tournament. These sponsors pay money to ICC,
apart from paying money for the special prizes. Why would they do so?
Obviously to cash upon the goodwill generated by the cricket tournament.
Then, people pay money for their product to be advertized on the field or
of the field, within the precincts of the cricket stadium. They pay huge
sums of money because they know millions of viewers, while seeing the
broadcast or the footages replayed, would simultaneously be seeing their
advertisements. Advertisers pay during commercial breaks when the match
is on. To put it pithily, money flows from different channels to the
organizers of the cricket tournament and from this reservoir the organizers
of the cricket tournament spend money; which flows out, for the
tournament to be held. We have already commented in paragraph 1 above
that a propaganda machine, which is a product of a marketing age, has

come into being. We commented that this propaganda only understands the
language of profit. And now we understand why so. The propaganda
machine spends millions of dollars but raises investment from third parties
i.e. sponsors of the tournament; sponsors of the special prize monies;
merchandisers who display their advertisements on and off the field, but
within the precincts of the cricket stadium; merchandisers who advertise
during commercial breaks. The collective money pooled in is used to
organize the sports events. No philanthropy is done. It is a
business/commercial venture which seeks money in return. A pound of
flesh for a pound of flesh is the motto. Nobody can take flesh by making
the venture bleed.
44. The propaganda machine which spends millions of dollars has, in turn,
millions of dollars invested in it. In the marketing age and the age of media
saturation, a hype is built when sports events are held all over the world. In
soccer loving nations, the soccer events are preceded by a media hype,
with the organizer of the event advertising, by booking time slots, that the
countdown has begun. Say for example, the World Cup football. The
countdown begins about sixty days prior. Information is dissiminated as to
which teams are in which group. Where would the matches be played.
Special events are organized, which are nothing but propaganda.
Advertisers step in and join the propaganda. They make investments by
paying the organizers while buying the time slots. Celebrities participate in
chat shows sponsored by these sponsors. Money is invested. The hype
created results in the football/soccer lovers thinking that they are a part of
the World Cup themselves. It is akin to man creating the image of his God
on the belief that his God looks like him. But soon starts thinking that he
looks like his God. The fans i.e. the viewers start eating, drinking, walking,
talking and for that matter doing mundane activities thinking that they are
soccer themselves. This belief makes them to think that they are a part of
the tournament. The physical manifestation of the belief is that they start
living with the product of the sponsor. It is this physical manifestation
which returns the revenue to the sponsor. In India, with cricket it is
likewise.
45. Thus, when the tournament is on, any association by a third party, with
respect to the footages of the tournament or in the manner noted by us in
paragraph 8 and 9 above (where we have highlighted a programme by
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Aircel) would ex-facie be competing and simultaneously exploiting the
copyright of the copyright owner i.e. the broadcaster with the right of
reproduction, in that, the potential customers of those who have invested
would be predated upon. Such activities i.e. special events would clearly
infringe the rights of the broadcaster which would include the reproduction
rights when footages are used and along therewith commercial
advertisements are put on the air and in particular where the commercial
advertisements are specially targeted for the programmes in question.

52. To put in common man‟s language. Unlike events such as an accident;
a judicial verdict being pronounced; a Finance Minister making a
statement, where nothing is spent by anybody for creating the event and
thus nobody being entitled to appropriate the newsworthy content of the
event, special events such as a cricket match are organized by investing
huge sums of money running into millions of dollars. It is a creation of the
investors and sans a fair use pertaining to reporting current events and
affairs, nobody is entitled to even a drop of milk from the milch cow.”
(ii)
Before one understands the meaning of the aforesaid observations,
and therefore the binding ratio of the judgment in the New Delhi Television Ltd
(supra), it is also necessary to refer to paras 46 to 49 of the said judgment and
which read as under:-
“46. Stale news is no news. Law permits current events and affairs to be
reported i.e. recognizes that stale news is no news and thus must be
reported currently. That is the reason why an archival footage acquires
the status of being archaic after 24 hours. A fact not disputed by either
party. (see para 71 of Media Works NZ‟s case (supra) and para 27 of
ESPN Star Sports case). It could thus be said that a rough and a ready
thumb rule to apply to an event or an affair being news would be the
time period of 24 hours within which the event or the affair remains a
news and thereafter it mutates into history. Thus, the lifespan of an
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event or an affair, in its form of news, is 24 hours. Lapsing into history,
any reflection thereon would not be news but would be views.
47. Now, is the problematic area! When does an event or an affair
become news? Does news has a gestation period to mutate into
history? If yes, what would be the gestation period? Questions which
are easy to pose, but extremely difficult to answer with empirical
precision. Just as the life span of creatures and the gestation period,
before they take their ultimate manifested form, vary from species to
species, same has to be, in our opinion, with events and affairs. We take
cue from the analogy in the field of biology. We extend the Galilean –
Newtonian method i.e. Naturalism, to resolve the issue. Mosquitoes and
flies, from the embryonic stage i.e. egg, pass on to the stage of a
larvae/maggot, and the mosquito larvae finally metamorphose as adults
and the fly egg metamorphose as an adult, from
maggot, within a span of less than three to four days and live a life as
adults of a few days and die. The mosquito egg would be news of being
an egg the moment it is laid and would be news of becoming a larva
when it metamorphoses and becomes news (and a nuisance) when it
emerges as an adult, and all this within a short span of time. Similar
would be the position of some kinds of events and affairs. But an
elephant has a gestation period of 22 months, and lives as a calf
dependent upon the mother for a couple of years before attaining
adulthood. The conception of an elephant in the womb of the mother
would continue to remain news for 22 months and it would continue to
be news of being a calf for couple of years till it would become news
that an adult elephant has come into being.
48. How does it translate t o an event of sports? Each match would be an
event. Thus, the span of the match as an event being news would span
the entire duration of the match. But, within this period of match, the fall
of a wicket; the achievement of a milestone in the career of a player : to
wit 1000 runs scored, 2000 runs scored etc. or 100 wickets taken, 150
wickets taken or the 50th catch taken would be events, spanning a
momentary duration, and being news when the event takes place. The
latter i.e. a wicket falling, a century being scored (by a player or by the
team), would be events which on the principle of stale news is no news
and analogy with biology, would require it to be held that to put an
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embargo on reporting said event at a cricket match by putting the time
restriction 30 minutes would amount to not permitting news to be
reported but history to be reported, for the reason the news element
content of such an event i.e. a wicket falling or the century being scored
is momentary.
49. In the world of media reporting, the dissemination of news
pertaining to the event of a wicket falling or a century being scored,
would encompass not only the audio mode of dissemination but even the
visual mode of dissemination and thus such kind of events, i.e.
momentary events which remain news for momentary durations are
entitled to be diffused so as to reach the audience by TV channels with
limited footage, restricted to the fall of the wicket or the scoring of the
milestone run. Logic and reason demands this. The interest of the
consumer i.e. the viewer also demands this. Let us say, a particular
match is of no consequence for the reason Team „A‟ has already earned
the requisite points to move into the semi-final stage. The opposite team
„B‟ is at the bottom of the group and has no chance to either reach the
semi-final or by winning, eliminate any other team to reach the
semifinals. Viewers interest in the match being very low, a TV buff may
prefer to be watching a sports news bulletin, but it would become news
for him if some personal milestone is reached by a player of either team
„A‟ or of team „B‟; say for example bowler „X‟ of team „A‟ has
achieved a hattrick; being the first in the tournament. It would be fair use
if under the caption „Breaking News‟ the normal sports show on the air
is briefly interrupted, for 10 seconds to 15 seconds, and to the audience
three wickets falling in succession are shown. This use of footage,
within seconds of the event i.e. hat-trick occurring, would not amount
to an unfair use. The reason is obvious. It was not an expected event and
it being aired on the normal sports news programme or hard news
programme was not preconceived i.e.
would not be a case of competition, much less to predate on the revenue
of the broadcaster or its viewers. During course of reporting news such
kind of reporting would obviously be a case of fair use i.e. a permitted
use. Thus, we hold that, be it a case of reporting hard news or a case of
„reporting sports news programme‟, if during a cricket match an event
of the kind we have been discussing in the present paragraph occurs,
CS(OS) No.2722/2012 & conn. matters
Page 41 of 56
footage relating thereto can be shown within seconds of the said kind of
event taking place.”
(iii)
A reading of all the aforesaid paras of the Division Bench judgment
shows that the Division Bench has held that the issue is whether the programme
which is made by a person other than the original broadcaster is reporting or it is
result oriented. If the programme which is conducted is not reporting, injunction
must follow.
This the Division Bench has observed with respect to the
programmes which contain discussions on the match during the match or during
the intervals of the match or immediately after the match, and which discussions
show actual clips from actual audio and visual recording which is broadcast by the
plaintiff and to which obviously ordinarily except the plaintiff no one else can have
a right except for the purpose of fair dealing. Therefore, the observations, and the
paragraphs which have been relied upon by the plaintiff in the Division Bench
judgment in the case of New Delhi Television Ltd (supra), firstly cannot have
application to the facts of the present case which does not deal with the copying of
actual audio and visual recording which is broadcast by the plaintiff. Secondly the
Division Bench has itself in paragraphs 46 to 49 have stated that “Stale news is no
news. Law permits current events and affairs to be reported”. The Division Bench
has also observed that whether a news is a stale news for no longer being the
CS(OS) No.2722/2012 & conn. matters
Page 42 of 56
exclusive entitlement of a licensee from BCCI to report, the same will necessarily
depend on the type of event or the information which is generated from the event
in question. In fact, the Division Bench has dealt with the doctrine of fair dealing/
fair use and observed that in fact showing of 10 seconds or 15 seconds clips of the
original audio visual recording to the audience such as of three wickets falling in
succession or other momentary events of the match from the footage which is in
the exclusive copyright of the BCCI or its licencees, will not amount to
infringement of copyright because it is permissible under the doctrine of fair
dealing/fair use.
I should not observe anything further so far as the judgment of the
Division Bench of this Court is concerned inasmuch as I have already stated above
that the Division Bench was dealing with the issue of direct copying of the audio
and visual recording of the BCCI or its assignee, and which resulted in violation of
the copyright with respect to the actual broadcast viz original audio and visual
recording and to which only the BCCI or its assignee had rights. As has been
already stated that the present case however does not pertain in any manner even
remotely to the defendants broadcasting the actual audio recording, or the visual
recording, or both, of the plaintiff.
CS(OS) No.2722/2012 & conn. matters
Page 43 of 56
22(i).
I may note that the judgment of the Division Bench in the case of New
Delhi Television Ltd.(supra) was in fact an appeal from the judgment of learned
Single Judge of this Court dated 18.9.2012 in ICC Development(International)
Ltd. & Anr. Vs. New Delhi Television Ltd., and in which judgment the learned
Single Judge has also given a short finding in favour of the defendants qua the
issue which also arises in this suit. This finding is contained in para 21 of the said
judgment which reads as under:-
“21. The plaintiffs have also objected to the score cube at the bottom of
the screen where the defendant gives score of the match on a
continuous basis alongwith the name of an advertiser/sponser. This, to
my mind, cannot be objected to by the plaintiffs since it does not
involve any use of the work of the plaintiffs. The score of the match is
in public domain and can be broadcasted by any channel as a part of its
right to report current news and events. In my view, mere giving the
name of an advertiser/news sponsor of the defendant along with with
the live score does not give an impression of the advertiser/sponsor of
the plaintiff being associated with the event.” (underlining added).
(ii)
It is not disputed before me that the denial to the plaintiff in the said
case of the rights as per para 21 of the judgment dated 18.9.2012 was not appealed
from and therefore has become final. Therefore, the observations of the learned
Single Judge contained in para 21 of the judgment dated 18.9.2012 also persuade
me to hold that with respect to news there cannot be monopoly by preventing such
information being the news from being disseminated among the public, after of
course the first right of broadcast of the plaintiff.
CS(OS) No.2722/2012 & conn. matters
Page 44 of 56
23(i)
So far as the judgment of the Madras High Court in the case of M/s
Marksman Marketing Services Pvt. Ltd (supra) the following paragraphs are
some of the paragraphs relied upon by the plaintiff:-
“16.
Though the case proceeded at the stage of interim
injunction, in the peculiar feature of the case and since the case is
first of its kind, the Court has deemed it proper to consider the
underlying questions.
The following questions arise for
consideration::
1. Whether there is property in providing Scores, alerts and updates
in the cricket through SMS technology?
2. Whether PCB/Organizer has the exclusive Right over SMS Rights
of the Cricket Match?
3. Whether the Defendants are entitled to appropriate Scores, alerts
and updates in the cricket match by transmitting through SMS for
their commercial use?
4. Whether the Plaintiff has proved its prima facie case of SMS
Rights in providing Scores, alerts and updates in respect of India‟s
2006 Tour in Pakistan for the territory of India?
5. Whether the Plaintiff is entitled to the interim injunction prayed
for?
21.
The learned Senior Counsel Mr. Sriram Panchu has mainly
placed reliance upon 1996 US District Lexis 10262 The National
Basket Ball Association and NBA Properties Vs. Ports Team
Analysis and Tracking System Inc. and contended that the organized
events which are already in the public domain involve no labour or
skill. Such organized events are not subjected to Copyright
protection. It is further contended that organized events like sports
and the facts and information thereon are not protectible Rights. In
the said decision NIMMER on Copyright has been referred to which
is now relied upon by the Defendants. The US Court has quoted
NIMMER on Copyright as under:-
CS(OS) No.2722/2012 & conn. matters
Page 45 of 56
“179. In fact, Nimmer on Copyright the oft-cited treatise which
the Supreme Court recently characterized as the work of a “leading
scholar” Feist, 499 US at 347 specifically and resoundingly rejects
the analysis and conclusion of the Court in Baltimore Oriorles
regarding the protectibility of an athletic event. 1.M.Nimmer &
D.Nimmer, Nimmer on Copyright @2.09[F] (1996)[hereinafter
Nimmer]
180.Nimmer points out, inter alia, the problematic consequences
of according copyright protection to an athletic event, as opposed to
its telecast.
181. For example, it is unclear who in addition to NBA would be
considered a copyright owner and, therefore, whose consent a party
would have to obtain prior to using copyrightable portions of the
game. Id. @ 2.09[F] at 2-169. One coaches, and all other participants
whose creative energies contributed to the NBA game. See Eastern
Microwave, Inc. v. Doubleday Sports, Inc. 691, F.2d 125, 128(2d Cir.
1982) (discussing the unworkability of requiring a party “to obtain”
the consent of or negotiate with numerous copyright owners”) Cert.
Denied, 459, US 1226, 75 L. Ed. 2D 67, 103 S.Ct. 1232 (1983);
Booth Vs. Colgate-Palmolive Col. 362 F. Supp. 343, 347
(S.D.N.Y.1973). (The recognition of a performer‟s right in a
copyrighted work would impose undue restraints on the potential
market of the copyright proprietor since a prospective licensee would
have to gain permission from each of possibly many performers who
might have rights in the underlying work before he could safely use
it.”)
182. Similarly, if a coach copied a play devised by another
coach, the second coach might be forced to defendant a copyright
infringement action if he or she failed to obtain the consent of the
first coach. Nimmer @ 2.09 (F) at 2-169.
183. In the end, Nimmer concludes that the “more reasonable ....
Construction (is) that athletic events are subject to legal protection
pursuant only to right of publicity, misappropriation and other
established legal doctrine outside the ambit of statutory copyright.
CS(OS) No.2722/2012 & conn. matters
Page 46 of 56
184. In addition to Nimmer, case law, although far from
bountiful, suggests that organized events are not subject to copyright
protection. See Morrissey V. Procter & Gamble Co. 379 F. 2d 675,
678 (1st Cir. 1967) (characterizing as “unquestionably correct” the
proposition that the substance of a promotional sweepstakes contest
was not copyrightable). Production Contractors, Inc V. WGN
Continental Broadcasting Co. 622 F. Supp. 1500, 1503
(N.D.III.1985) (holding that a “[Christmas] parade, including its
production and promotion, is not a work of authorship entitlement to
copyright protection”).[underlining added].
The Plaintiff claims infringement of its Right in respect of live,
providing of Scores, alerts and updates.
23.
On behalf of fourth Respondent the learned Senior Counsel
Mr. T.R.Rajagopalan has placed reliance upon 2001 PTC 217 (Del(
[Eastern Book Company & Others Vs. Navin J. Desai and another].
The said case related to publication of Law Books by Eastern Book
Company and CD ROM by the Defendants, wherein the Plaintiffs
alleges infringement of their Head Notes on Law Reports by the
Defendants. The Supreme Court found that unless the Head Notes of
the Judgments have been prepared by the Plaintiff with his own
labour and skill and that there is originality or creativity in the
preparation of Head Notes, the Plaintiff cannot allege infringement.
In the above said case, the Supreme Court has held:
“In terms of Section 51(1)(q) of the Act, reproduction of a
Judgment of the Court, is an exception to the infringement of the
copyright. The orders and judgments of the Court are in the public
domain and anyone can publish them. Not only that being a
Government work, no copyright exists in these orders and judgments
but no one can claim copyright in these judgments and orders of the
Court merely on the ground that he had first published them in his
book. If there are some typographical mistakes in a Judgment or an
order of the Court, can it be said that merely because the first
publisher of these judgments and orders has corrected those mistakes
or has inserted certain commas or full stops and dates therein, a
copyright will exist in the person who has corrected such mistakes in
CS(OS) No.2722/2012 & conn. matters
Page 47 of 56
the Judgment published by him? The answer, in my opinion, has to
be in the negative. Changes consisting of elimination, changes of
spelling, elimination or addition of quotations and corrections of
typographical mistakes are trivial and hence no copyright exists
therein.”
37.
There is much fallacy in the above contentions raised by the
Defendants, equating themselves with any cricket fan viewing the
telecast in TV. Certainly, one who watches the cricket match telecast
in the TV may communicate the Scores or alerts gratuitously or for
any legitimate purpose, not interfering with PCB‟s „Right to make
merchandise of it. But to transmit the Hot News or alerts for
commercial use and seeking to justify the same, is entirely a different
matter and the same cannot be equated with a common viewer. By
the very fact of advancing this contention, the Defendants only admit
that they are taking material that is telecast by Ten Sports, to whom
the Telecast Right was assigned by PCB which is the result of
organization and the expenditure of labour, skill and money, which is
salable by PCB for money. The Defendants are only exploiting this
for their commercial purpose.
44.
TO SUM UP: :
a) a) Right of providing Scores/alerts and the updates via SMS
Technology is the result of Organisation and expenditure of labour,
skill and money, which is salable only by PCB/organizers.
b) Through the SMS technology, the process of sending Scores,
alerts and updates amounts to unauthorized, interference with the
normal operation of PCB/Organiser‟s legitimate business.
c)
The act of the Defendants in appropriating facts and
information from the telecast and selling it by providing Scores and
alerts over SMS is nothing but endeavouring to reap the profit where
they have not down.
d)
The whole process of SMS amounts to unauthorized
interference with the PCB‟s organizers legitimate business proceed at
the point where the profit is to be reaped.

e)
By the act of the Defendants they are making profit and
thereby diverting the material portion of the profit of SMS which
PCB would have earned.”
Some other paragraphs of the Madras HC judgment were also relied
upon on behalf of the plaintiff, but, since the aforesaid paras sum up the basic stand
of the plaintiff, and the conclusions given by the Court in that case, I am not
reproducing the other paragraphs.
(ii)
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.
(ii)
Unfortunately, I am not able to agree. Can I take the argument of the
plaintiff to mean that merely because hundreds of crores of rupees are spent, a
property right can be created although such a property right is specifically barred
under law viz Section 16 of the Act? Or, putting it in different words, once there is
and cannot be a bar upon any person to use an information which otherwise comes
in public domain, and which is not the subject matter of copyright inasmuch as
what is the subject matter of the copyright is only the original audio visual
recording and definitely not the information which is contained in the audio visual

recording, then merely because huge sums of money are invested that should not at
all have any bearing. In my opinion whether hundreds of crores of rupees, or
thousands of crores of rupees are spent, surely, the same only would be the outlook
of those persons who invest such amounts, however, that cannot persuade this
Court to give any legal right to any such person who claims those rights as
property rights; pure and simple because law does not sanction or permit or give
existence to such legal rights.
(iii).
In order to understand the frailty in the arguments urged on behalf of
the plaintiff, I put a proposition to the learned senior counsel for the plaintiff. The
proposition was that suppose if on the next day after the match a newspaper gives
an exact ball by ball commentary in its newspaper, then, will it amount to violation
of copyright of the plaintiff qua its audio and visual recording? Learned senior
counsel for the plaintiff had to concede that surely this would not amount to
infringement of the copyright inasmuch as the information had become news after
24 hours. Thus if information after 24 hours is news which is not the sole
entitlement of the plaintiff, then the principle is not disputed that the content of the
audio and/or visual recording of which the plaintiff has a copyright, can surely
become news or stale news or ordinary news at any one later point of time use of
which does not violate the copyright of the plaintiff.

25(i)
The issue thus would be what is that later point of time after the first
broadcast for the information contained in that first broadcast to cease to be taken
to be part of that first broadcast. Putting it differently, what should be the time gap
that is required so as to distinguish the right of first broadcast from the
content/information contained in the broadcast. In my opinion, that later point of
time, would be that point of time at which the hiatus or the period or the
interregnum ends by which the information can be no longer be said to be part of
or so intimately associated to/with the first right of the broadcast of the plaintiff.
Once the information ceases to be associated and is no longer closely associated
with the first right of broadcast of the plaintiff, thereafter, such information
becomes ordinary news, and, thereafter the 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. Additionally, if one cannot prevent
exercising of the right of fairness/fair dealing qua even the original audio visual
recording, then aforetiorari the exercise of fair dealing qua the underlying

content/information is perfectly legal especially because no right has been given of
a copyright to the content/information.
(ii)
The issue therefore boils down to what is that hiatus after which any
information which comes out of the event called the cricket match pursuant to first
broadcast by the owner of the copyright that it can be said that after which hiatus
there cannot be said to be any copyright in the information/content of the
broadcast. Obviously the period will vary as per the subject event/performance,
however, in this judgment I am dealing with the content/information contained in
the audio and visual recording of the 50 over a side cricket match for deciding
when the content/information in the audio and video recording ceases to be called
the first right of broadcast, for the further dissemination of the same on commercial
basis to be not stopped.
(iii)
I have thought long and hard on this aspect. The 50 overs a side cricket
match takes a time of roughly about eight hours. What should be period of time
qua such event, and after which period the information contained in the first audio
and/or visual recording broadcast becomes an information in the public domain for
it to become ordinary news which any one can commercially use and would not be
taken as a part and parcel or closely associated to the broadcast. In my opinion,
after a period of two minutes of the first broadcast by the plaintiff, the information

thereafter will become information in the public domain which is ordinary news
for not being taken as part of the first broadcast.
After two minutes the
content/information in the broadcast can be commercially exploited by any person.
I may hasten to clarify that qua momentary news, for example a fall of a wicket or
a crucial momentary event, the same becomes stale news or ordinary news within
seconds as per the ratio contained in para 48 of the judgment of the Division Bench
in New Delhi Television Ltd’s (supra) case which has been reproduced above. To
ordinary news, I cannot and am not giving exclusive rights to the plaintiff for 72
hours merely because the plaintiff as per its agreement with the BCCI has been
granted such a right by the BCCI.
(iv)
I have decided the time lag period to be of two minutes because in
today‟s age and world technology has really reached stupendous heights that the
dissemination of information is very fast. A period of two minutes from the first
broadcast is more than sufficient time so that the plaintiff can, in that period,
commercially exploit its exclusive audio and visual rights arising from the cricket
match as if that is a part and parcel or so closely associated with the right of first
broadcast. Thereafter, it is impermissible to stifle the news which comes into
public domain.

26.
I therefore hold that, except for momentary important events for
which no time lag can be put, so far as the other information contained in the first
audio and/or visual broadcast of the plaintiff, after a period of two minutes of the
first broadcast, as long as any of the defendants are not using/copying in any
manner the original /identical audio and/or visual recording of the plaintiff; and the
defendants are only using the information or content from the original audio and/or
visual or video recording or cinematographic film, there is no bar upon the
defendants to use and disseminate the information for commercial purposes.
27.
The upshot of the above discussion is that a meaningful, and not a
formal/cursory reading of the plaint (vide T. Arvindandam Vs. T.V. Satyapal and
Another AIR 1977 SC 2421), shows that there is absolutely no legal right of the
plaintiff after a period of two minutes to prohibit the defendants from using the
information/content contained in the audio visual recording of the plaintiff,
provided of course as stated above no exact portion of the audio and visual
recording of the plaintiff is used as it is. I am appropriately empowered to exercise
powers both under Order 7 Rule 11 and Order 12 Rule 6 CPC in order to examine
whether on the admitted facts as stated in the plaint, whether any legal right or a
legal cause of action is made out. If on the admitted averments in the plaint, no
cause of action or legal right is made out, it would be a futile exercise to keep the

suit alive for considering it further. Counsel for the defendants agree that the
entitlement of the defendants is not to 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.
However, when can the information become an information in public domain, and
not be an information which can really be said to be almost the part and parcel of
the original audio and/or visual recording of the broadcast of the plaintiff, is in my
opinion, purely a legal issue. Therefore, pronouncing and deciding this legal issue,
I am of the opinion that a 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.
28.
The suits are therefore dismissed with the observations that the
defendants can in terms of conclusions in paras 25 to 27 above commercially use
the content/information contained in the original audio and/or visual recording
after two minutes of the first broadcast by the plaintiff. Decree sheets be prepared.
Parties are left to bear their own costs.
NOVEMBER 08, 2012

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