TaxTMI 
TaxTMI 
2015 (8) TMI 865
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....emporaneous match information in the form of ball-by-ball or minute-by-minute score updates/match alerts for a premium, without obtaining a license from the plaintiff." SINGLE JUDGE‟S FINDINGS 2. The present case had a chequered history. A learned single judge had by the earlier order (dated 08-11-2012) rejected the three suits, holding that they were barred. A Division Bench set aside the learned single judge‟s order, and directed that the application for ad-interim injunction should be heard on its merits. Thereafter, the learned single judge, by the impugned order, granted the ad-interim injunction in the manner described earlier. The facts are that Star India Pvt. Ltd. (Star) filed three suits against Piyush Agarwal (Cricbuzz), Idea Cellular ("Idea") and OnMobile Global Ltd. ("ONMOBILE"). The Board of Cricket Control in India (BCCI) was arrayed as the common defendant in all the three cases. BCCI, however, supported Star, claiming paramount rights over all information emanating from cricketing events as the organizer and promoter of that sport in India. Star and BCCI contended in the suit that the latter (BCCI) by agreement dated 10.08.2012 had assigned a &bdq....
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....cricketing events in India, it owned exclusive rights in respect of content generated during a cricketing event. These included the right to commercially exploit all event content. BCCI claimed that it is a not-for- profit organisation, registered under the Tamil Nadu Societies Registration Act, 1975, recognized as the de-facto apex body which deals with promotion and organisation of cricketing events in the country by the Government of India. It is not funded by the Government. It funds all cricket related activities, from setting up of the stadium to starting training academies for umpires, scorers etc. Its main source of funding is by monetizing content arising from cricket matches, such as sponsorships and commercial advertisements. The revenue received from sale of match tickets is negligible. Of the revenue generated, BCCI claims to plough back 85% into promoting the game of cricket in India. The defendants on the other hand do not contribute their revenue or a part thereof for the purpose of promoting the game of cricket in India. The BCCI and the plaintiff claim that defendants are eating away into the mobile and internet rights, without sharing the profit gained by them; t....
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....pp. 1071 ("the NBA-1 Case") the High Court held that: "The right of providing scores, alerts and updates is the result of expenditure of skill, labour and money of the organisers and so the same is saleable only by them. The sending of score updates and match alerts via SMS amounts to interference with the normal operation of the Organisers business. The defendant‟s act of appropriating facts and information from the match telecast and selling the same is nothing but endeavouring to reap where the defendants have not sown." 7. The plaintiff also relied on Secretary, Ministry of Information and Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal & Ors., (1995) 2 SCC 161 where the Supreme Court, held that BCCI was a non-profit making organization, which officially controls the organised game of cricket in India and had held that BCCI‟s duty was to explore the most profitable avenues of telecasting the event. Underlining the need to protect time sensitive information emanating from cricketing events specifically score updates/match alerts the plaintiffs position was that match information did not enter public domain for a particular span of tim....
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....ub Squash Co. Pty. Ltd., (1981) 1 W.L.R. 193 and Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd., 156 CLR 414 by the High Court of Australia. Further to these contentions, the appellants argued that Star and BCCI could legitimately claim broadcasting rights and copyright over the cinematograph film of the cricket match or audio recording of the commentary to the extent it is recognized under the Act. Their (the appellant‟s) activity was not the result of "free-riding" because they did not copy the broadcast content or provide access to audio or visual footage of the broadcast. The appellants contended that they were legally entitled to disseminate the score updates/match alerts to the public and consequently generate income. Such information, emanating from the cricket matches i.e. score updates/match alerts, were „facts‟ over which there cannot be copyright monopoly. In support, reliance was placed on Victoria Park Racing and Recreation Grounds Co. Ltd. vs. Taylor, 58 CLR 479 ("the Victoria Park Case") and Feist Publications, Inc. V Rural Telephone Service Co., 499 U.S. 340 (1991) ("Feist").The score update had entered the public domain and therefore, could be fr....
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....ich is defined under Section 2(y) of the Act as (i) a literary, dramatic, musical, or artistic work; (ii) a cinematograph film; (iii) a sound recording. The learned single judge held that the definition is exhaustive and not inclusive, signifying the parameters of Section 16. Section 16 consequently was held inapplicable to "anything which is not a work". The impugned order also held that Section 16 stood further limited by Section 39A as the latter provision belonged to the Chapter of the Act which deals with „neighbouring‟ or „related rights‟. It enumerates provisions of the statute which apply to copyright would also apply, mutatis mutandis to the neighbouring rights (eg. Performer‟s rights, Broadcasting reproduction rights). Section 16 is not enumerated under Section 39A of the Act. Under the Copyright Act, rights besides copyright are created; they include rights of broadcasting organisations under Section 37, rights of performers under Sections 38 and 38A, and the moral rights of authors which are recognized under Section 57. They are distinct from copyright. The single judge relied on ESPN Star Sports v. Global Broadcast News Ltd. & Ors. 2008 (3....
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....bile rights‟ and „mobile activation rights‟. The Media Rights Agreement defines- Mobile Activation Rights 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 Rights means the Mobile Activation Rights and the right to deliver or provide access to the Feed or Footage, the Audio Feed, any Unilateral Commentary and Unilateral Coverage 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. 33. If the plaintiff did not intend on generating revenue by exploiting these „mobile rights‟ and „mobile activation rights‟, it could....
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....he bid conducted by the BCCI or by obtaining a sub-license from the plaintiff. The argument that expenditure is being incurred by the defendants to set-up infrastructure and employ personnel has no merit, because such expenditure is incurred upon the process of dissemination and not towards the organization of the sport or in the process of legitimately obtaining the information from the plaintiff or BCCI. Therefore, I find that the action of the defendants cashing upon the efforts of the plaintiff/BCCI constitutes free-riding." 13. The Appellants‟ argument that match information was in the public domain was brushed aside; the impugned order held that as the plaintiffs did not seek copyright of the score updates, there was no question of information entering the public domain. The term public domain, according to the learned single judge, had different connotations, as match facts did not enter the public domain simultaneously with the events, due to the time lag of few seconds as a result of time taken for transmission. "As a corollary, the information has still not entered the public domain qua the persons who do not have any access to a source of contemporaneous informa....
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....quo;noteworthy information‟ or „news‟ from cricket matches (as discussed in paragraph 49), as and when they arise, because „stale news is no news‟. c. There shall be no requirement for the license if the defendants do it gratuitously or after a time lag of 15 minutes." APPELLANTS‟ CONTENTIONS 15. The appellants argue that concededly no statute creates a property right in "scores" and other happenings on the field; consequently the Court fell into error in creating new property rights. It is argued that facts cannot be "owned" by anybody either under statute or common law. In this context, it is stated, that the plaintiffs aver in the suit that they assert "exclusive rights over Match Information generated during a cricket match, which is purely factual information, incapable of copyright protection" which cannot transform into wider, ill-defined rights of indefinite duration. Therefore, it cannot ask that "match information" of the kind which is subject matter of the suit, should be protectable as a property right. It is further submitted, in this context that there are several unresolved policy issues which constrain the court fro....
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....‟s observations in Cheney Bros. v. Doris Silk Corp. [1929, Court of Appeals] were relied upon: "In the absence of some recognized right at common law, or under the statutes and the plaintiff claims neither- a man‟s property is limited to the chattels which embody his invention. Others may imitate these at their pleasure. Of the cases on which the plaintiff relies, the chief is International News Service v. Associated Press 248 U.S. 215. Although that concerned another subject-matter- printed news dispatches- we agree that, if it meant to lay down a general doctrine, it would cover this case; at least, the language of the majority opinion goes so far. We do not believe that it did. While it is of course true that law ordinarily speaks in general terms, there are cases where the occasion is at once the justification for, and the limit of, what is decided. This appears to us such an instance; we think that no more was covered than situations substantially similar to those then at bar. The difficulties of understanding it otherwise are insuperable. We are to suppose that the court meant to create a sort of common-law patent or copyright for reasons of justice. Eith....
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....eld to be an intrinsic part of Article 21 of the Constitution of India, by our Courts." The appellants‟ counsel also relied on the judgment of the High Court of Australia in Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor [58 CLR 479 (1937)] and Moorgate Tobacco Co. v. Philip Morris [156 CLR 414 (1984)]. Moorgate was particularly stressed upon to say that the broad tort of unfair competition cannot be resorted to in order to prevent legitimate business in an activity of the kind indulged in by the appellants. 18. Counsel argues that it is hard to conceive that someone or some entity can "own" an event; one may be an organizer. Certain aspects or features of an event may be capable of ownership. In support of this contention, i.e. inability to own facts, reliance is placed on the judgment in Eastern Book Company v Modak 2008 (1) SCC 1. The sporting event as a whole is incapable of ownership. The mere expending of money or effort would not render the underlying facts relating to sporting events property, capable of protection. What is conceivable, counsel submitted, is that the organizer of an event can have certain rights which flow from (a)his ownership/co....
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.... What prompted these proceedings was Talksport‟s advertising of its Euro 2000 coverage as being "live". The BBC objected to this. It considered that by representing that it was providing live radio coverage, Talksport was representing falsely that its coverage would be by commentators from within the stadium describing what they see with their own eyes as distinct from what they see on the television monitor alone, together with ambient sound from the matches themselves. Believing correctly that, as a broadcaster without the right to provide live coverage from within the match stadia, Talksport‟s coverage would be off-tube with ambient sound provided by pre-recorded sound effects, the BBC complained that Talksport was incorrectly representing the nature of the coverage it was providing, and incorrectly representing itself to be the holder of live broadcasting rights." 19. It is submitted that the concept of unjust enrichment is embodied only in Section 72 of the Contract Act, which extends to pre-existing contractual or quasi contractual relationships. Learned senior counsel also relied on Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd [(1916) 2 K....
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....ique property right, which stems out of a negative obligation of the appellants, who secure match related information contemporaneously, not to use it commercially for a short duration. Whereas the right of the members of the public - who witness the event, having paid for the tickets or millions of television viewers who subscribe and watch paid channels, which cover the event, to share it on a non-commercial basis cannot be denied, yet the obligation of a third party not to commercially exploit it is self evident. 22. The respondents insist that the narrow scope of this case involves protection of Property Rights in contemporaneous/ almost instantaneous dissemination of Match Information through Mobile SMS updates to those class / market of persons who have no access to television, radio or internet and have access to Match Information only through mobile phones. It is asserted that match information does not pass into public domain upon broadcast / telecast of the match for third parties to freely and commercially exploit. There is a clear distinction between the information passing into public domain and information being available to the public. Exploitation of Match Inform....
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....s, for a premium fee. 25. BCCI claims, and its counsel Shri Abhinav Vashisht argues, that it owns property rights in the match information, subject only to public interest considerations like gratuitous dissemination by public, Mandatory Sharing of Feed, etc. which are not relevant to this case. 26. Learned counsel submitted that denying a basis in common law and equity for Star to assert its property rights / ownership in dissemination of Match Information through SMS updates, is contradictory and paradoxical. In this context it is argued that this would lead to denial of all property rights / ownership claims in the cricket match itself; furthermore, the entire structure of rights in sports event, including broadcasting rights, audio rights, internet rights, stadium rights etc. would be rendered nugatory. Counsel also stated that if ownership is partially or fully conceded even for one of the rights, then all incidents and insignia of ownership must follow in respect of the entire bundle of rights vesting in the BCCI. 27. It is asserted that a Division Bench of this Court has recognized the distinction between general content on the one hand, and newsworthy content gener....
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...., the right to use any other activity or aspect, capable of monetization inheres only with the sports organizer or owner of the content, such as the BCCI and Star. Learned senior counsel submitted that even reportage of match content through telecasts, in the same form, i.e. rebroadcast of the event of howsoever short a duration, would be subject to the legal regime, i.e. the promotion or license of the content or things owner would have to obtain. In these circumstances, the valuable rights, such as mobile rights cannot be seen in isolation. Star and BCCI would have exclusive rights of such information which can be disseminated commercially only with their consent upon satisfaction of the terms which may be imposed in that regard. Learned counsel further emphasized that the existence of mobile rights of the kind which are subject matter of present case have been clearly established by custom and usage across the world and are capable of enforcement. 31. It was argued by learned senior counsel for the respondent that property rights evolve and are to be viewed contextually. The ownership of some rights need not be based on the ability of the proprietors to exclude the entire wor....
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....1) SCC 502 and Life Insurance Corporation of India Limited v. Manubhai, AIR 1993 SC 172. Learned counsel further submitted that the "hot news" doctrine and the Court‟s authority to injunct its misappropriation has been recognized as evident from the ruling of the Madras High Court in Marksman Marketing Services Private Limited v. Bharti Televentures Limited [OA No. 78/2006]. In that case too, inter alia, SMS rights were assigned by the content owner. The Court held that sending score updates through SMS would amount to interference with the normal functioning of the "organizer‟s business" and the resultant misappropriation should be injuncted. Lastly, it was argued that the appellant‟s submissions are unfounded because the BCCI is under a mandate to ensure that dissemination of match information is optimized commercially for the greater public good. Concomitantly, the mobile rights too have to be monetized to promote the sport of cricket in India. In support of this submission, learned counsel relied upon the judgment reported as Secretary, Ministry of Information and Broadcasting v. Cricket Council of Bengal 1995 (2) SCC 161. Learned counsel lastly relied upon th....
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...., literary, dramatic, musical and artistic works, (b) cinematograph films, and (c) sound recordings (2) Copyright shall not subsist in any work specified in sub section (1), other than a work to which the provisions of Section 40 or Section 41 apply, unless- (i) In the case of published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India, (ii) In the case of an unpublished work other than [work of architecture], the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) In the case of work of architecture, the work is located in India Explanation- In the case of a work of joint authorship, the conditions conferring copyright specified in this sub section shall be satisfied by all the authors of the work. (3) Copyright shall not subsist- (a) In any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) In any sound recordi....
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.... adaptation of the work; (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub clauses (i) to (iv); (d) In the case of a cinematograph film- (i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public (e) In the case of a sound recording- (i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) To communicate the sound recording to the public Explanation - For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation. xxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx 16. NO COPYRIGHT EXCEPT AS PROVIDED IN THIS ACT. No person shall be entitled to copyright or any similar right in any work, whe....
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....nstitute infringement of copyright under section 52. 39A. OTHER PROVISIONS APPLYING TO BROADCAST REPRODUCTION RIGHT AND PERFORMER‟S RIGHT. Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 shall, with any necessary adaptations and modifications, apply in relation to the broadcast reproduction right in any broadcast and the performer‟s right in any performance as they apply in relation to copyright in a work: Provided that where copyright or performer‟s right subsists in respect of any work or performance that has been broadcast, no licence to reproduce such broadcast shall take effect without the consent of the owner of rights or performer, as the case may be, or both of them." 36. As is evident from the above discussion, the facts are not in dispute; the cricketing events (i.e. the matches) are organized by the BCCI on each occasion. It has granted exclusive broadcasting rights to Star to disseminate the information/content emanating from the event; other copyrights emanating from recording of the live event too have been assigned to Star. These include the right to record, reproduce, broadcast etc. the actual event with other related rights. Among these....
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....be recognized or endured for more than a limited time, and therefore, I may remark in passing, it is one which hardly can be conceived except as a product of statute, as the authorities now agree. The ground of this extraordinary right is that the person to whom it is given has invented some new collocation of visible or audible points, - of lines, colors, sounds, or words. The restraint is directed against reproducing this collocation, although but for the invention and the statute any one would be free to combine the contents of the dictionary, the elements of the spectrum, or the notes of the gamut in any way that he had the wit to devise. The restriction is confined to the specific form, to the collocation devised." 38. The Feist requirement of some creativity has been accepted as the standard governing copyrightability of works in India, in Eastern Book Co (supra) by the Supreme Court. There, the court there held that mere copy- edited portions of judgments (which contained the basic facts) did not entitle the publisher copyright protection as they did not amount to "minimum requirement of creativity". That the appellant expended some skill, labour and money did not entitle....
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....lly devoid of originality. The statutory monopoly arises even though the author expended no mental skill, labour or ingenuity in its preparation" Crucially, however, this copyright in the broadcast - which is protected purely by the fact of being a broadcast, absent determinations of originality or expense - is distinct from the underlying creative content, "which may well be protected aliunde." (Laddie, Prescott and Vitoria, supra, paragraph 7.32). The plaintiffs‟ contention in these cases is not that their broadcast rights under the Copyright Act have been violated, but that the defendants are engaging in wrongful conduct in disseminating the underlying facts. To offer an example (again Laddie, Prescott and Vitoria, supra, paragraph 7.33): "A television broadcaster acquires the results of the day‟s football matches from a press agency and keys them into a computer. This is then used to generate a teletext signal: viewers with the right equipment see the football results displaced on their screens. It is clear that the text regarded as a literary work may be copyright but that copyright will belong to the news agency, not the broadcaster. The broadcaster do....
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....ion, the fact remains that the plaintiffs‟ stated premise for protection here is the mere expending of resources and skill - a preconditions which existed to fulfil the copyright protection standard prior to Eastern Book Co. That standard no longer holds good. The plaintiffs‟ argument about the inapplicability of Section 16, by reason of the language of Section 39A has facial appeal. A deeper analysis, however, would reveal that by Section 39A those provisions of the Copyright Act which effectuate the rights created by Parliament for copyright protection, i.e. enabling, assignment and mode of assignment of rights (Sections 18 and 19); licensing and mode of licensing (Section 30); customs authorities‟ right to seize imported copies (Section 53); remedies for infringement (Section 55) and coercive powers of law enforcement authorities (Section 64, 65 and 66) have been extended to broadcasting rights. That cannot exclude applicability of other provisions, (that do not find express mention under Section 39A). The wording of Section 16 - and very importantly, Section 63 (which create offences) refer to "other rights". By Section 16, "copyright or any similar right" (in....
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....hat apply to copyrights (such as no protection to ideas or facts or underlying information, the idea expression merger doctrine, etc.) would apply in the case of copyrighted works which are also the subject of broadcast rights. If Parliament had intended to give protection to facts, "time sensitive information" or events (such as match information), there would have been conscious protection of those rights by express provision. Therefore, the exhaustive nature of the regime in Chapter VIII precludes, by its very nature, any claim for protection over and above what is expressly granted by its provisions. It is worth noticing that broadcasting of the event, for which broadcasting rights have been created have a restricted term of 25 years, i.e. half of the term of copyrights. What the plaintiffs seek is the protection of the widest amplitude (in respect of not preventing reproduction of content of the broadcast), but the facts underlying the broadcast, is facially untenable. Such rights have long been held to be barred as they are "similar" to copyright protection (Ref Donaldson v Beckett 1 ER 837 (1774); Section 31 of the Copyright and Designs Act, as well as Section 46 (5) of the ....
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....a report of matters that ordinarily are publici juris; it is the history of the day." Nevertheless, the same opinion went on to propound the "hot news" doctrine. The bedrock of the opinion was that: "This defendant . . . admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is saleable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant‟s members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant‟s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court o....
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....has always been a condition upon the creation of this kind of property. Qua copyright, although it would be simpler to decide upon the merits, we should equally be obliged to dispense with the conditions imposed upon the creation of the right. Nor, if we went so far, should we know whether the property so recognized should be limited to the periods prescribed in the statutes, or should extend as long as the author‟s grievance. It appears to us incredible that the Supreme Court should have had in mind any such consequences. To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power over his fellows vastly greater, a power which the Constitution allows only Congress to create." 48. Indeed, the most damaging decision undermining the INS doctrine was by the Supreme Court itself in Errie Railroad v Tompkins 304 US 68. The INS court‟s jurisdiction (to declare the "hot news" doctrine) was underpinned on a federally existing "common law" in an area concededly which fell in the states‟ legislative domain. No state (or federal) statute existed. That doctrin....
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....he ball; (iv) whether the team is in the free-throw bonus; (v) the quarter of the game; and (vi) time remaining in the quarter. The information was updated every two to three minutes, with more frequent updates near the end of the first half and the end of the game. There was a time lag of about two or three minutes between events in the game itself and when information appeared on the pager screen. The SportsTrax‟s operation relied on a "data feed" supplied by STATS reporters who watched games on television or listen to them on the radio. The reporters keyed into a personal computer changes in the score and other match information such as successful and missed shots, fouls, etc. The information was relayed by modem to STATS‟s host computer, which compiled, analysed, and formatted data for retransmission. The information was uploaded via satellite to various FM radio networks which in turn emitted signals to individual SportsTrax pagers. 50. NBA‟s complaint concerned the SportsTrax device; it also offered evidence at trial concerning STATS‟s America On-Line ("AOL") site. Users, who accessed STATS‟s AOL site, were provided with more comprehensive and....
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....rrow confines of the "Hot News" doctrine. It was held that: "We therefore find the extra elements--those in addition to the elements of copyright infringement--that allow a "hot news" claim to survive preemption are: (i) the time-sensitive value of factual information, (ii) the free-riding by a defendant, and (iii) the threat to the very existence of the product or service provided by the plaintiff. 2. The Legality of SportsTrax [10] We conclude that Motorola and STATS have not engaged in unlawful misappropriation under the "hot-news" test set out above. To be sure, some of the elements of a "hot-news" INS claim are met. The information transmitted to SportsTrax is not precisely contemporaneous, but it is nevertheless time- sensitive. Also, the NBA does provide, or will shortly do so, information like that available through SportsTrax. It now offers a service called "Gamestats" that provides official play- by-play game sheets and half-time and final box scores within each arena. It also provides such information to the media in each arena. In the future, the NBA plans to enhance Gamestats so that it will be networked between the various arenas and will support a p....
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....e transmission of these facts on a network; (iii) the assembling of them by the particular service; and (iv) the transmission of them to pagers or an on-line computer site. Appellants are in no way free- riding on Gamestats. Motorola and STATS expend their own resources to collect purely factual information generated in NBA games to transmit to SportsTrax pagers. They have their own network and assemble and transmit data themselves. xxxxxxxxx xxxxxxxxx xxxxxxxxx SportsTrax and Gamestats are each bearing their own costs of collecting factual information on NBA games, and, if one produces a product that is cheaper or otherwise superior to the other, that producer will prevail in the marketplace. This is obviously not the situation against which INS was intended to prevent: the potential lack of any such product or service because of the anticipation of free-riding. For the foregoing reasons, the NBA has not shown any damage to any of its products based on free-riding by Motorola and STATS, and the NBA‟s misappropriation claim based on New York law is pre-empted." The Federal Pre-emption clause (Section 301) reads as follows: "301. Preemption with respect to ot....
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....nd, according to the firms, were less likely to place their trades through the firms, which in turn sued the Fly, contending that the latter was guilty of content misappropriation, relying on the Hot-news doctrine evolved in INS. The trial court applied the hot-news doctrine, and held that the Fly had misappropriated content; it granted relief to the firms. On appeal, the Second Circuit reversed the trial court ruling. The INS decision was described, in The Flyonthewall as : "Some seventy-five years after its death under Erie, INS thus maintains a ghostly presence as a description of a tort theory, not as precedential establishment of a tort cause of action ..." The court put to rest the "unfair" result theory rather forcefully, in the following terms: "No matter how "unfair" Motorola‟s use of NBA facts and statistics may have been to the NBA -- or Fly‟s use of the fact of the Firms‟ Recommendations may be to the Firms -- then, such unfairness alone is immaterial to a determination whether a cause of action for misappropriation has been preempted by the Copyright Act. The adoption of new technology that injures or destroys present business models is co....
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....se, as neither Star, nor BCCI engage themselves primarily in match news dissemination through SMS. 55. The tenuous basis of the "hot-news" doctrine in the country of its origin apart, the Australian High Court has rejected its applicability to common law countries repeatedly. In Victoria Park (supra) it was held that: "If English law had followed the course of development that has recently taken place in the United States, the "broadcasting rights" in respect of the races might have been protected as part of the quasi-property created by the enterprise, organization and labour of the plaintiff in establishing and equipping a racecourse and doing all that is necessary to conduct race meetings. But courts of equity have not in British jurisdictions thrown the protection of an injunction around all the intangible elements of value, that is, value in exchange, which may flow from the exercise by an individual of his powers or resources whether in the organization of a business or undertaking or the use of ingenuity, knowledge, skill or labour. This is sufficiently evidenced by the history of the law of copyright and by the fact that the exclusive right to invention, tradema....
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....bile rights is misconceived, to put it mildly. One can "monetize" or license only that over which one has property rights. Neither Star nor BCCI can be permitted to say that mentioning "mobile" rights and auctioning them, would ipso facto legitimize the parcelling away of right to disseminate information, without first establishing that the right or exclusive domain over such rights existed in the first instance. Similarly, the plaintiff‟s reliance on New Delhi Television (supra) is of no avail. The Division Bench, in that case, had to deal with broadcast of sporting events by a news channel. The Court had to deal with whether the defendant‟s conduct amounted to fair use. 57. In this context, the Court recollects that the Supreme Court has held, when "[i]n our constitutional scheme ... statute monopoly is not encouraged (and) [k]nowledge must be allowed to be disseminated", (Entertainment Network India Ltd. v. Super Cassettes Industries Ltd., 2008 (13) SCC 30) it is inapt that the courts create a monopoly over facts which the Parliament has deemed fit to exclude from protection under the Copyright Act. The plaintiff has not been able to show, in the opinion of the co....
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....n fact, on being asked whether it was open for the Courts to create such judicial remedies to remedy what the Courts consider „unfair‟ (the semantic vagueness of that term often escaping all attempts at careful and precise formulation), Lord Justice Jacob noted, and rightly so, that "I do not think it open to the Court to legislate in this way." (paragraph 159). Similarly, in Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. and Another (No. 2), (1984) 156 CLR 414, the Australian Federal Court noted that "[t]he rejection of a general action for "unfair competition" involves no more than recognition of the fact that the existence of such an action is inconsistent with the established limits of the traditional and statutory causes of action which are available to a trader in respect of damage caused or threatened by a competitor. Those limits, which define the boundary between the area of legal or equitable restrain and protection and the area of untrammelled competition, increasingly reflect what the Respondent Parliament or Parliaments have determined to be the appropriate balance between competing claims and policies. Neither legal principle nor social utility requires o....
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.... match information would either mean that misappropriation under common law can supplant the Copyright Act (which cannot be the case, as discussed above), or that copying and misappropriation refer to two distinct acts, which would be a distinction without a difference. As Nimmer explains, "it is difficult to see any substance in (this) asserted distinction ..." Thus, it must be: "concluded, then, that in this context, misappropriation is but another label for reproduction, and as such, is a pre-empted right within the general scope of copyright ..." (Nimmer & Nimmer, Nimmer on Copyright (Indian Reprint) p. 1-47, Vol. I (Lexis Nexis, 2010) (hereinafter "Nimmer"). Accordingly, unless a qualitatively different element is purported to be included in the doctrine of „unfair competition‟ as compared to a copyright claim, the pre-emption under Section 16 would apply to such claims, as is the case here. Star claims that the unauthorized dissemination of match information (i.e. „misappropriation‟ of its quasi-property) is unlawful, though in reality, once scaled down to the essence of the claim, it appears to be a claim for unauthorized „copying....
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.... is otherwise available freely, transgresses the limits of the Copyright Act. Thus, the tort of unfair competition cannot aid the plaintiff in its effort to seek equitable relief by way of injunction. The plaintiff's claim based on unjust enrichment 63. Coming to the question of unjust enrichment, the plaintiff‟s claim for an interim injunction on that basis cannot survive for three distinct reasons. First, the claim of unjust enrichment here is similarly pre-empted as the doctrine of „unfair competition‟ is. The question, in cases of whether a statute pre-empts a claim, is whether the two can be regarded as "equivalent rights" (Nimmer, p. 1-51), i.e. whether, in terms of Section 16, the right sought to be asserted is a "copyright or any similar right in any work". (emphasis supplied). Indeed, such preclusion, and the test of equivalence, must necessarily be the import of Section 16 to give effect to the words "any similar right". This demonstrates clear textual support for a reading that any right claimed which either a copyright itself, or a right "similar" to a copyright (the question of what is similar or not forming an independent inquiry that the C....
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....tance under the law of unjust enrichment - that an individual who freely accepts the benefits of the services of another must - on account of such unjust enrichment - restitute the other - runs into difficulty in copyright claims. This is because a copyright infringer "always "accepts" the benefit of a copyrighted work" (Nimmer, p. 1-52, emphasis supplied), and thus, a claim for copyright infringement would in no way differ qualitatively from an unjust infringement claim over copyright subject matter that is not covered under the Copyright Act. Indeed, a contrary conclusion would mean that for all copyright infringement claims that fail for want of copyrightability, the plaintiff would also have - as a means to bypass the exhaustive statutory scheme - a claim for unjust enrichment. If allowed, this would run counter to the Section 16 pre-emption, which would exclude the claim of unjust enrichment as well to ensure no protection is granted for facts, ideas and expressions de hors the Copyright Act. 66. The second reason why the plaintiff‟s argument on unjust enrichment cannot prevail here is because even if the claim of unjust enrichment is to be seen on merits, (assuming t....
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....stations of consent and are not wrongs". Professor Burrows in The Law of Restitution (2nd Ed.) (2002) draws the same distinction. He deals in chapter 1 with the "unjust enrichment principle and its four essential elements" and, quite separately, in chapter 14 with "restitution for wrongs" where he discusses all of the cases identified in the previous paragraph of this opinion which had been decided by 2002. His introduction to chapter 14, at p 455, points out that "the distinction between restitution for wrongs and unjust enrichment by subtraction [i.e. enrichment "at the expense of the claimant"] reflects different moral ideas." This is not to say that unjust enrichment serves only to reverse an accrual and never prevent it (see, Burrows, A Restatement of the English Law on Unjust Enrichment 40 (Oxford University Press, 2012). However, those limited circumstances - as exceptions to the rule - do not arise in this case. 67. Finally, even if we were to consider the unjust enrichment claim on the facts before the Court, Star‟s claim is prima facie untenable. A claim for unjust enrichment rests - as is beyond question - on three prongs: (a) enrichment of the defendant, (b) "a....
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....nt filed a writ petition for its recovery. The Supreme Court upheld the claim, stating that: "The principle of unjust enrichment requires; first, that the defendant has been „enriched‟ by the receipt of a "benefit"; secondly, that this enrichment is "at the expense of the plaintiff" and thirdly, that the retention of the enrichment be unjust. This justified restitution. Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved..." In all these cases, however, the Court did not have the opportunity to delve into the question of the precise boundaries of what such „unjust factors‟ could be. Here, the observations of Lord Goff in Lipkin Gorman v. Karpnale Limited, [1991] 2 AC 548 are crucial: "But it does not, in my opinion, follow that the court has carte blanche to reject the solicitors' claim simply because it thinks it unfair or unjust in the circumstances to grant recovery. The recovery of money in restitution is not, as a general rule, a matter of discretion for the court. A claim to recover money at common law is made as a matt....
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....t to be relied upon as a claim entitling the plaintiffs to the equitable remedy of injunction. Apart from the reasons discussed above, i.e., preclusion of such claims on account of a specific statutory copyright regime, and the absence of any merit in such plea, the court notices that no authority relied upon by the plaintiffs supports the view they propound approving the grant of such injunction. Even the Marksman case does not support the view that in such cases, the publication of such information, amounts to the third party unjustly enriching itself at the broadcaster (or broadcasters‟ licensee‟s) expense. 71. Grant of injunctions can be to secure an object protected by law. It can also be to restrain the defendant from engaging in conduct injurious to the plaintiffs‟ property. In some circumstances, the relationship or past relationship of parties (status, such as matrimony, or contractual such as agent, employee, partner, etc.) may entail that either of them refrain from disclosing facts or information - which can in turn be based upon the terms, express or implied governing such relationship (a claim in contract, or as in this case, tort (of unfair compe....
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.... to be rejected in Indian law on account of an Article 19(1)(a) violation, nor to say that the defendant‟s freedom of speech cannot be curtailed by the doctrine under any circumstance, but only to make the limited, but crucial, point that Courts must be cautious in creating doctrines and rights that have such clear implications for constitutional rights, better leaving such matters to the law- making domain of the legislative branch, that may result in a coherent legislation that creates a framework within which any curtailment of Constitutional rights is to take place. Indeed, in such cases, it is open for any aggrieved party to question that legislative action as against Part III of the Constitution, and against the entire range of constitutional rights, by approaching the courts. But it is that path - of a legislative action open to review by the Courts as against specific and limited negative covenants imbibed in the Constitution - which best represents the mechanism for creation of rights that have constitutional implications, rather than judicial indulgence in entering that exercise itself. Indeed, restraint as a judicial policy neither does nor should translate into a ....