The tremendous growth in the sports industry and sports viewership across the globe has led to a growing integration between the law and sports. As more viewers watch through broadcast than live at the sports ground, the live broadcasting business has been doing exceptionally well in recent years. Providing seamless connectivity, proactive collaboration and access to content in real time are the key requirements of such live broadcasts.
In terms of the Indian legal scenario, a question which needs to be answered is whether the copyright in sports events broadcast live by various means and the rights regarding value-added services arising out of the broadcasting of these events are covered by India's Copyright Act, 1957. The act provides the right of copyright in "original" literary, dramatic, musical and artistic works, cinematographic films and sound recordings.
The act does not specifically deal with the live broadcasting of sports events although such events could fall under section 13(b), which protects cinematographic films; section 37, which protects the rights of broadcasting organizations; and section 38, which protects the rights of performers. Section 2(f) defines a cinematographic film as any work of visual recording on any medium and includes a sound recording accompanying such visual recording. From this it is clear that section 13 does not provide any protection to value-added services arising out of live sports events. Further, section 37 relates to broadcasting reproduction rights and does not include value-added services arising out of a live broadcast.
For indirect protection of value-added services arising out of broadcasting of live events, one has to look at section 38, which covers performers' rights. Though a sports event is not specified under section 2(q) or section 2(qq), a sports event clearly falls within the definition of "performance" and so the players (and also umpires) would be a performers.
This issue was recently considered by Delhi High Court in the case of Star India Pvt Ltd v Piyush Agarwal & Ors.
Brief facts and issues
Under an agreement between Star India (the plaintiff) and the Board of Control for Cricket in India (BCCI), Star India broadcasts matches organized by the BCCI and has rights over all information pertaining to the matches including the right to create and broadcast text messages (SMS). Through this agreement, Star India claimed the exclusive right to provide value-added services by SMS for 72 hours after a live broadcast. The defendants were providing value added services through SMS pertaining to the cricket matches broadcast by the plaintiff, and the plaintiff claimed the infringement of its exclusive rights.
The issues were: (1) whether the rights claimed by the plaintiff are covered under the act; (2) whether the plaintiff has the exclusive right over information which is available in the public domain after the first broadcast of the audio/visual recording.
The plaintiff argued that under its agreement with the BCCI, it has exclusive rights to all information emanating from a live event. The defendants responded that the information created by the defendants was gathered from data freely available in the public domain.
The plaintiff asserted that its rights existed independently of the act, i.e. the copyrights provided under the act are not exhaustive of the rights which can be created in respect of an event.
In response, the defendants argued that only the rights specifically provided under the act can be claimed by or granted to a performer or the assignee of a performer, such as the BCCI.
The plaintiff argued that a visual/sound recording of a match exists as specified in section 38A. Therefore reproduction or communication of such a work without a licence or permission amounts to infringement of copyright under sections 37 and 51. The defendants contended that they did not use the plaintiff's visual/audio recordings, so there was no violation of any right of the plaintiff. Information existing in public domain is news, which no one can monopolize.
The court held that: (a) a cricket match falls within the ambit of the term "performance" and therefore cricketers, commentators and umpires are performers under the act; (b) the agreement entered into between the plaintiff and the BCCI cannot result in the creation of a legal right which is not envisaged in the act; (c) news in public domain cannot be monopolized; (d) the principle of fair dealing and public policy would be defeated if there was a monopoly for 72 hours in favour of the plaintiff with respect to news created from an event which is available in public domain. While dismissing the suit without costs, the court decided that the defendants must wait two minutes before using the information in an audio/visual broadcast of the plaintiff. The decision has been appealed by the plaintiff and an order of the court's division bench is awaited.
This article was first published in India Business Law Journal, December 2012/January 2013 issue
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