TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 865
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.... 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 „bouquet of rights‟ exclusively to St....
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....ts 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; thereby indulging in unfair competition and unjust c....
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.... "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 time. A distinction was drawn between those having access to....
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....acco 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 freely used by anyone. Finally, the Constitution under Article ....
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....ical, 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 (38) PTC 477 (Del.) (DB) (ESPN Case). In view of these, it was held that "pre- ....
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....eement 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 have resorted to bidding only for selective rights since they were also available on an ....
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....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 information i.e. TV or radio." The court went on to hold that facts relating ball by ball progress of the ....
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...., 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 from holding that cricket scores or match information is property. These concerns include - the scope of such right,....
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....ce 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. Either would flagrantly conflict with the scheme which Congress has for more than a century devised to cover the subject-matter....
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....d 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/control over the venue i.e. land; and/or (b)statute. In this context, the following observations in Victoria Park (supra) were relied o....
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....nsidered 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.B. 880] Cadbury-schweppes Pty Ltd and Others v Pub Squash Co Pty Ltd. [(1981) 1 W.L.R. 193] and Hodgekinson Corby Ltd v Wards Mobility Service....
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....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 Information through one mode of communication (such as television / radio broadcast) does not imply that BCCI has foreclosed / abandoned its right to exploit M....
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....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 generated from a special event on the other and observed that the organizer is entitled to appropriate the newsworthy information/value of such special events. Counsel ....
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....ed 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 world but from its enjoyment for all times or absolutely; it can be a limited one as in the circumstances of the present case. Just as property need not be tangible, the excl....
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....hority 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 the ruling of the Division Bench in New Delhi Television Limited v. ICC Development (International) Limited and Another [FAO(OS) 460/2012] and submitted that the limited protectio....
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....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 recording made in respect of a literary, dramatic or musical work, it in making the sound recording, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a sound recording shall not ....
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....g 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, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law 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....
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....adcast 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 are "mobile distribution" rights, which is the bone of contention in these proceedings. The plaintiffs assert that these rights enable only Star, to the exclusion of all others to disseminate time sensitive match information, i.e. almost contemporaneous news such as the result of a ball bowled, milestones achieved by the....
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....ints, - 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 them the protection: "The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour." This ruling, in the Court‟s opinion, is an important mile ston....
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....ing 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 does acquire a copyright in his broadcast, but this is a narrow one. Thus, it would be an infringement of it if another broadcaster captured the signals and re-transmitted them. But it would not be an infringement (of the broadcasting copyright) if someone copied down the results from his television screen and published them in a newspaper. He....
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....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 a work) apart from what is created by the Act is precluded. No doubt, the expression "work" limits the exclusion. However, equally, while the text of the Copyright Act does not prescribe what the rights referred to in the words "other similar rights" - other than copyright - are, this must necessarily allude to, inter alia, broadcasting rights. T....
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....re 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 UK Copyright Act, 1956 (repealed) and Section 171 (2) of the UK Copyright Designs and Patents Act, 1988). 44. As a result of the above discussion, it is held that the rights claimed by the plaintiffs, over and above the broadcasting rights, i.e. to prevent others from publishing or sharing match information or facts, for irrespective of commercial or n....
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....kill, 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 of equity ought not to hesitate long in characterizing it as unfair competition in business." 46. The US Supreme Court was not unanimous; there were three dissenters; two renowned jurists, i.e. Holmes, J and Brandeis, J dissented. Specifically, Justice Brandeis remarked, in his opinion that: "Then the creation or recognition by courts of a new private ri....
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....utes, 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 doctrine was discredited and the previous rulings upholding the federal common law principle overruled. Here, Brandeis, J spoke for the court which overruled the federal common law doctrine: "The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes. The doctrine rests upon the assumption that there is „a transcendental body of law ....
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....n 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 detailed real-time game information than was displayed on a SportsTrax pager. NBA asserted six claims for relief: (i) state law unfair competition by misappropriation; (ii) false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a); (iii) false representation of origin under Section 43(a) of the Lanham Act; (iv) state and common law unfair competition by fal....
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.... 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 pager product analogous to SportsTrax. SportsTrax will of course directly compete with an enhanced Gamestats. However, there are critical elements missing in the NBA‟s attempt to assert a "hot-news" INS-type claim. As framed by the NBA, their claim compresses and confuses three different informational products. The first product is generating the information by playing the games; the se....
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....ssemble 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 other laws (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether publ....
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....urt 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 commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort. Indeed, because the Copyright Act itself provides a remedy for wrongful copying, such unfairness may be seen as supporting a finding that the Act pre-empts the tort." 53. It would thus be seen that the INS decision, propounding "time sensitive" hot-news-misappropriation doctrine, based on unfair ....
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.... 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, trademarks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalization. In dissenting from a judgment of the Supreme Court of the United States by which the organized collection of news by a news service was held to give it in equity a quasi-property protected against appropriation by rival news agencies, Brandeis J. gave reasons which substantia....
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.... 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 court, how it has proprietary rights over the facts and information it seeks to protect - even for a limited duration. A telling aspect of the present case is that the plaintiff is willing to state that the moment the event occurs, i.e. any ball is bowled or a wicket falls, the fact or information passes into the public domain, as far as viewers and subscribers (i.e. both the spectators at the venue, as well as the tens of millions....
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....d 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 or warrants the obliteration of that boundary by the importation of cause of action whose main characteristic is the scope it allows, under high-sounding generalizations, for judicial indulgence of idiosyncratic notions of what is fair in the market place." (emphasis supplied) 59. In fact, the recent trend internationally to accord protection to rights in information - in varying degrees - or to accept the doctrine of „unfair compe....
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.... 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‟ of facts, which are not copyrightable. Thus, for example, claims that assert passing off, or a fraudulent element, or indeed, a question of information disclosed in confidence (as specifically mentioned in Section 16), each having a distinct qualitative element from a mere copyright may survive Section 16 pre-emption, but not otherwise. A contrary reading would allow for claims based on alternate common law remedies that Section 16 considers to....
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....e 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 Court must undertake) is precluded by the Copyright Act. 64. In this case, and generally, as far as copyright subject matter is concerned, the claim for unjust enrichment is whether the defendants were „unjustly enriched‟ by the dissemination of match information, which isidentical to a claim for the defendant‟s infringement of the match information over which Star asserts rights. Thus, for example, claims of unjust enrichment against a ta....
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.... 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 that it is not pre-empted by Section 16), such a claim cannot - by definition (with limited exceptions as noted below) - injunct or prohibit the defendants from disseminating match information, but rather, only be the basis for a restitutionary award. Importantly, the property interest claimed by the plaintiff under the hot news doctrine/doctrine of unfair competition is conceptually distinct from the claim of unjust enrichment. Whereas the former (if considered to be....
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....tion 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) "at the expense" of the claimant, (c) an "unjust factor" in allowing the retention of such benefit. (see, Burrows et. al., A Restatement of the English Law of Unjust Enrichment 44 (Oxford, Oxford University Press, 2012)); Birks, An Introduction to the Law of Restitution 16-8 (Clarendon Press, Oxford 1989)). 68. Accepting this formulation, in Sahakari Khand Udyog Mandal Ltd. v. CCE & Customs, (2005) 3 SCC 738, the Supreme Court elaborated upon the aspect of unjust enrichment stati....
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....ndirect 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 matter of right; and even though the underlying principle of recovery is the principle of unjust enrichment, nevertheless, where recovery is denied, it is denied on the basis of legal principle. It is therefore necessary to consider whether Mr. Lightman‟s submission can be upheld on the basis of legal principle ..." In failing to provide any clear unjust factor, as also in not addressing whether the benefit gained by the defendants was „at the plaintiff‟s expense‟, (both cruc....
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....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 competition), and finally, unjust enrichment). Sections 38 and 39 of the Specific Relief Act empower the civil court, in exercise of its jurisdiction, to issue injunctions. Although, textually, Section 39 talks of mandatory injunction and does not advert to statute based rights, it speaks of such remedy being available to "prevent the breach of an obligation" existing in favour of the claimant. While the last two illustrations to the Section 38 suggests that obligations not spelt out in express terms and not ....