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Emerging Law in Sports Broadcast and Proprietary Rights

By Shibumi Raje

1. ICC Development (International) Ltd and Anr v. New Delhi Television Ltd.

Introduction

In September 2012, the High Court of Delhi delivered a judgment in the suit filed by ICC (Development) International Ltd (“IDI”) and ESPN (Mauritius) Ltd (“ESPN”), (hereinafter collectively referred to as the “Respondents”), against New Delhi Television Ltd (“NDTV”), with respect to the excessive usage of match footage by NDTV during the ICC Cricket World Cup 2011. The Court, while upholding the limits set by the News Access Guidelines framed by the International Cricket Council (“ICC”) for the ICC World Twenty20 Sri Lanka 2012, granted an injunction restraining NDTV from using related video footage in excess of the prescribed limits. The appeal by NDTV was disposed by the Division Bench on October 11, 2012. The Division Bench, while prescribing limits for usage of match footage by television news channels, held that all television news channels should use match footage strictly in accordance with the limits prescribed by the ICC or purchase the right to use such footage, from either the ICC or the official broadcaster to whom the broadcasting and reproduction rights was assigned by the ICC.

Background

The ICC is the international governing body for the sport of cricket. IDI is a wholly owned subsidiary of ICC, and performs functions assigned to it by the ICC, which includes organization of cricket competitions and management of sponsorships and programmes.

ESPN is a leading multimedia sports entertainment company, which broadcasts and delivers various sports content through its sports channel. In July 2007, ESPN acquired from IDI, the exclusive broadcasting and reproduction rights, for all ICC organized cricket tournaments till 2015. While IDI continues to own the copyright in the recording of the matches, ESPN as an exclusive licensee of IDI has the right to record, edit, use and transmit the footage (either live or deferred). ESPN also has the right to use the footage for advertisement and promotional purposes for forthcoming ICC cricket events.

IDI also grants sponsorship and partnership rights to various companies. The rights of the sponsors/partners includes the right to advertise in the official programmes of every ICC organised cricket match and the non-exclusive rights to use up to two minutes of footage from each match.

Facts

On January 25, 2011 the ICC issued the ‘ICC Cricket World Cup 2011 News Access Guidelines for India’ (the “ICC Guidelines”), which prescribed the limits of usage of live and archival footage emanating from the ICC Cricket World Cup 2011 for purposes of news reporting. The permitted usage for fresh footage was 5 ½ minutes per news day, 2 minutes of fresh footage per hour of broadcasting and 2 repeat exhibitions per broadcast hour. It was alleged by the Respondents that during the ICC Cricket World Cup 2011, NDTV violated the ICC Guidelines on multiple occasions and infringed the proprietary rights of ICC and its various official sponsors/partners. Hence the Respondents filed a suit to restrain NDTV from using footage for the ICC World Twenty20 Sri Lanka 2012 which was due to start from September 18th 2012 onwards. The Delhi High Court in September 2011 issued an order in favour of the Respondents, restraining NDTV from using footage beyond the threshold limits set by the ICC Guidelines.

Order of the Single Judge

The Court deliberated over the meaning of the terms ‘fair dealing’ and ‘news reporting’, and came to the conclusion that NDTV could, under the guise of news reporting, show significant events such as a century or fall of a wicket, but not to an extent where the fair comment transpired itself into a commercially profitable programme showing several minutes of the footage.

The Court upheld the restrictions imposed over live and archival footage laid down in the ICC Guidelines; and further held that NDTV could not use the name, image and logo of any advertiser in special sports news programmes, which would not only mislead the audience but also give them an impression of the advertiser being a sponsor of or associated with the event.

It was held that, while there can be no objection to NDTV or any news channel presenting special programmes, it cannot carry an advertisement immediately before, during or immediately at the end of such programme using the footage belonging to the ICC, as this would be inconsistent with the idea of fair dealing. Further, NDTV could not be allowed to earn commercial advantage to the prejudice of the event organizer, the event’s official broadcaster and the sponsors/partners for the event.

The Court held that ticker advertisements were allowed as part of news bulletins, provided they are not booked solely during the reporting of the event. The Court found nothing wrong with the stipulation of courtesy bugs acknowledging IDI and ESPN as laid down in the ICC Guidelines.

The ICC had also objected to score cubes, but the Court held that merely giving the name of an advertiser/sponsor along with the score does not give an impression of such advertiser being associated with the event of the ICC.

Order of the Division Bench on Appeal- [FAO(OS) 460/2012]

On appeal, NDTV claimed their defense under Sections 39(b) and 52(1)(a)(iii) of the Copyright Act, 1957. While NDTV did not challenge the infringement of proprietary rights of the Respondents, it claimed the benefit of ‘fair dealing’ under Section 39(b) of the Copyright Act, 1957. NDTV argued that use of broadcast footage in the reporting of current events is not an infringement of the broadcaster’s reproduction rights as the reporting of current events and affairs falls under the purview of ‘fair dealing’.

In determining whether the activities of NDTV constituted ‘news reporting’, the test laid down in the case of Media Works NZ Ltd & Anr v. Sky Television Network Ltd. [CIV 2007-404-5674] was relied upon. The test was whether such reporting involves coverage/reporting that is result oriented or whether it is primarily an analysis/review of a sporting event. In the current case it was held that the offending activity was not reporting and thus the question of determining whether such use is fair or unfair does not arise.

The Division Bench while acknowledging that ‘stale news is no news’ held that news must be reported currently. A time cap of 24 hours was laid down with regard to the currency of an event being news, after which it mutates into history and can be used only for ‘analysis’. The court agreed that the time span or gestation period will vary from event to event. In a cricket match, the span of the match as an event being news would span the entire duration of the match, while individual events within a match would be events, which would need to be reported immediately. Therefore, it would be acceptable if under the caption of ‘Breaking News’, the ongoing show is interrupted and the audience is taken to live activity happening on the cricket field for the duration of 10 to 15 seconds.

It was also held that TV channels would have two options, only one of which can be opted for in relation to special sports news programs. They can either opt to put on the air advertisements specifically during special programs, and not to use the footage. On the other hand, they can choose to use the footage but not put on air any advertisements. With respect to a cap on the amount of footage used and repetition thereof, the Court was of the opinion that each case would have to be viewed on its facts. Lastly, with regard to ticker advertisements, the Court held that the position would be similar to that of other advertisements and there was no need for any distinction.

While examining the commercial angle of these events, the interest of investors in mega broadcasting events was acknowledged and the Court reiterated the need for protection of the investors’ commercial interest.

Conclusion and Implications

Prior to the ICC Guidelines, exploitation of broadcast footage by news channels under the pretext of “fair dealing” or “news reporting” was rampant. As a result, the organizers, official sponsors and broadcasters, who had spent a substantial sum on acquisition of rights, lost out on their exclusive privileges. This decision recognises the ICC’s and other rights owners’ power to monitor the broadcast of its matches and requires news channels to adhere to the limitations laid down in the ICC Guidelines and similar news access regulations; or purchase such rights at commercial rates. The threat to the exclusivity of broadcasters and sponsors that was in question has considerably diminished in the light of this decision. The exclusive rights holders can now benefit from further selling the rights to news channels and retaining privileges, which they have paid a steep price for. This judgment takes into account the dimensions of commerce, copyright and broadcast which play a significant role in a cricket match. While news reporting works as an exception in copyright law, the limits and scope of such reporting for purposes of a cricket match have been tangibly defined for the first time.

2. Star India Pvt. Ltd. v. Piyush Agarwal & Ors [CS(OS) No.2722/2012& Conn.]

Introduction

On November 8, 2012, the Delhi High Court through a Single Judge (Justice Mehta) pronounced a judgment in the case of Star India Pvt. Ltd (“Star India”), v. Piyush Agarwal and Ors., dismissing Star India’s claim that it held exclusive rights to information emanating from cricket matches organized by the Board of Control for Cricket in India (“BCCI”), by virtue of being the official and exclusive licensee of the BCCI. The Court held in favour of Piyush Agarwal, Idea Cellular Limited and Onmobile Global Limited and allowed the broadcast of information already in the public domain, albeit with a lag of two minutes.

However, on an appeal, the Division Bench of the Delhi High Court (comprising of Justices Pradeep Nandrajog and Manmohan Singh), on December 3, 2012, set aside the said order on grounds of serious procedural flaws. Further, the Division Bench restored the civil suits along with all the pending applications, which included the application seeking interim injunction.

Background

Owned by News Corporation, Star India is a media and entertainment company, and is India’s leading broadcaster. Star India broadcasts about 33 channels in 8 languages to more than 400 million people every week across India and more than 100 countries across the globe.

The BCCI is the governing body for cricket in India and organizes cricket matches in India. The BCCI and Star India entered into an agreement dated August 10, 2012, whereby Star India was given an exclusive license to use, broadcast and reproduce all footage and information owned by the BCCI, emanating from cricket matches organized by the BCCI.

Piyush Agarwal, is the owner of the website CricBuzz which provides updates on cricket, including scores and other details; Idea Cellular Ltd and Onmobile Global Ltd, are mobile phone companies which offer value added services like SMS or MMS alerts qua the information emanating from the cricket matches organized by BCCI.

Facts

The agreement between the BCCI and Star India granted Star India a 72 hour exclusivity over media rights emanating from all cricket matches organized by the BCCI in India. These media rights inter alia include the exclusive right to all information emanating from the event. The defendants, Piyush Agarwal, Idea Cellular Ltd and Onmobile Global (hereinafter collectively referred to as the “Defendants”), provided a value added service of creating and broadcast Short Message Services (SMS) based on the said information emanating from the cricket matches.

Star India contended that such value added services are the exclusive right/property of the plaintiff and therefore the defendant had no right to engage in such activities for commercial benefit. Star India also claimed that its rights exist independently of the Copyright Act, 1957 (the “Act”). The Defendants claimed that Star India does not have a right with respect to the information emanating from the cricket matches organized by the BCCI.

Order of the Single Judge

In determining whether the Act is exhaustive and whether or not there can be any right accorded outside the scope of the Act, the Court deliberated extensively on various sections of the Act. The Court held that a cricket match is deemed to be a performance under Section 38 of the Act, although not provided for expressly in the definition of ‘performance’ under the Act. The Court also held that copyright subsists in seven categories of works and cannot subsist in any other work falling outside the scope of the seven categories, in accordance with Section 16 of the Act..

In view of the above conclusions, the Court held that while copyright may subsist in the actual audio-visual recording and footage in a cricket match, no copyright subsists in the underlying content/information emanating from the audio-visual recording of a cricket match and the use of such information is not an infringement of copyright under the Act. The underlying information cannot be raised to a pedestal of a legal 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.

The Judge went on to hold that merely the existence of an agreement conferring certain rights cannot result in the creation of legal rights where none exist inasmuch as the law does not provide for or entitle or sanction the existence of such rights. Star India’s claim of exclusive monopoly for 72 hours with regard to information emanating from a cricket match was not sanctioned, as the news in public domain cannot be monopolized because content/information from a copyright work is not the subject matter of copyright. The Court also held that, the concept of a monopoly for 72 hours goes against the principle of fair dealing.

On the issue of when information from the cricket match enters public domain, the Court held that in the 50 over match format, after a time gap of 2 minutes upon the initial broadcast, the information enters the public domain and can be commercially exploited by any person, clarifying that this 2 minute time lag doesn’t apply to events of momentary significance. For qua momentary news, or events of momentary significant such as a fall of wickets or cricketing milestones, the Court permitted the immediate use and dissemination of such information, on the rationale that news of this calibre becomes stale within seconds, thus rejecting the stance taken in the case of M/s Marksman Marketing Services Pvt. Ltd. Vs. Bharti Tele-Ventures Ltd. & Ors. [C.S. 74 of 2006 in the High Court of Judicature of Madras].

Order of the Division Bench

While the Court examined solely the procedural grounds and did not over-rule specific substantive legal points of the November 8, 2012 order, it stated that the earlier decision was a “A self-contradictory decision, which on the one hand holds that law does not recognize the right sought to be asserted by the plaintiff, on the reasoning as we read that merely because one owns the broadcast (including re-broadcast) rights in an event, pertaining thereto law does not recognize any ownership in any underlying thing in relation to the event; concludes by issuing a limited injunction and in respect of the reason pertaining to the limited injunction, would recognize a proprietary right. A paradoxical situation.” However, the judgment does not expressly discuss the substantive points of law or positions taken in the prior judgment. Setting aside the order of the Single Judge, the judges noted that the written statement from BCCI was yet to surface and the dispute is far from settled. The proceedings have now been referred to a Single Judge, and are expected to be heard in early January, 2013.

Conclusion and Implications

While the broadcast and related laws were not handcrafted to suit the needs of sport, the significant increase in case law brings out the current need to coherently define the limits of such law custom made to suit the framework and the needs specific to sport. The investments in sport have steadily increased and, by co-relation, disputes regarding legal rights have been on the rise as well. An analysis of the above judgments shows that a number of legal questions have arisen with regard to broadcasting and proprietary rights relating to sporting events in India. In these case, the Court’s viewpoint has been limited to that of copyright law; our Courts will no doubt be called upon to other related legal doctrine sooner rather than later.

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