Source: The Times of India dated 24.1.2014
Cricket scores: Legal dispute raises question over the right to facts
TIMES NEWS NETWORK
New Delhi: TV broadcaster Multi-Screen-Media (MSM), which operates Sony, sued Online companies Cricinfo and Cricbuzz and radio broadcaster Radio One for disseminating realtime scores and updates for the ongoing India-New Zealand cricket series, without having obtained a licence from Sony. This follows a similar suit by Star against Cricbuzz, OnMobile, and Idea Cellular, for providing SMS updates of matches for which BCCI had given broadcast rights to Star.
The cases have sparked an emerging question on whether any company can have ownership over facts (which cannot be copyrighted) and what implications it may have on rights over free speech and expression.
Sony argued that it has paid a significant fee to the New Zealand Cricket Board for the exclusive media rights, and that this includes ‘data rights’, amongst the broadcast TV and digital rights. Sony was granted an ex-parte adinterim order by the Delhi High Court on Tuesday, restraining the three companies from disseminating any realtime scores, live/contemporaneous audio commentary or even “exploiting or authorising the exploitation of cricket match-related material/information/ details including but not limited to current cricket score, ball-by-ball updates, score cards, score updates, alerts etc, contemporaneous with match situations/events”.
Meanwhile, the suit initiated by Star last year is slated to be heard by the Supreme Court in March. The most recent ruling in August, by a division bench of the Delhi High Court, set aside an earlier order and stated that neither Star nor BCCI can license rights that have not been established to exist. More importantly, the court cited the constitutional implications upon the right to freedom of speech, stating that the earlier order, which gave Star limited rights “would tend to insidiously, and in a creeping manner, denude the fundamental right to free speech and dissemination of topical information to members of the public.”
Cricbuzz, OnMobile and Idea Cellular had argued that Star’s claim was barred by Section 16 of the Copyright Act, 1957, which precluded it from claiming copyright or other similar un-enumerated rights, and that they had published match information after it entered the public domain, that it was purely factual and amounted to news. They claimed that their actions did not amount to free-riding on the efforts of Star, as they did not copy the content of the broadcast or provide access to audio or visual footage of the broadcast.
These three companies further argued that dissemination of information through SMS was in exercise of their free speech right under Article 19(1)(a) of the Constitution. Their right also extended to freedom to carry on business in dissemination of information to the public; both these rights could be restricted through reasonable restrictions enacted through law, which fell under Article 19(2) and not by common law.
These arguments succeeding in overturning the previous order of the Delhi High Court in March 2013, which had prohibited the three companies from disseminating contemporaneous ball-by-ball or minute-by-minute score updates/match alerts by SMS/MVAS for a premium without a licence from Star — but allowed them after a time lag of 15 minutes. However, “newsworthy information” (that is, who won the toss, scored a century, broke a record, etc.)
was allowed to be disseminated immediately and that no licence was required if the information was disseminated gratuitously.
This gave Star limited rights over cricket scores and introduced the “Hot News” concept to India, wherein a company was given exclusive rights to report information via mobile for a certain period of time, while the news was still “hot”.
BCCI is indifferent towards live scoreboard updates, which come under purview of ‘data rights’. On the legal dispute over the media rights, BCCI told TOI that it was a matter between the broadcaster or title rights holder and the website or mobile companies which are selling live updates. “We have nothing to do with it. This issue is between New Zealand cricket board and the MSM and BCCI has nothing to do with it,” a top BCCI official said on Thursday.
Globally, however, the precedent has been in favour of the digital companies. In the US, a 1996 ruling between the NBA and Motorola /STATS stated that the broadcasts of NBA basketball games, not the games themselves, are entitled to copyright protection, and therefore, disseminating facts did not infringe upon broadcast rights.
Moreover, analysts point out that at the heart of the matter is the pragmatic question of enforceability of such rights in a digital age where realtime information is increasingly and easily available. If real-time scores are ruled to be proprietary content, it would imply that consumers who post these on Facebook or Twitter, or send messages via SMS or Whatsapp, are infringing upon rights, by sharing realtime score updates with friends! This is also impossible to enforce practically, and may end up placing sites such as Cricinfo at a disadvantage, relative to smaller sites or blogs which are less likely to be subject to legal action. It would also be near-impossible to enforce on websites based outside of India, being available globally.
The implication of a ruling in favour of Star would also set a precedent for news businesses outside of sports, implying that the right to report facts (which cannot be copyrighted) around any event would reside with the event holder, and news organizations would require licences from event organizers to report on them. It could also lead to a situation where real-time cricket scores would not be available on any digital medium, if the rights holder chooses to not disseminate the scores. If the court rules in favour of the digital companies, it would allow them to continue to disseminate real-time match information, as they currently do.
All in all, however, the nub of the issue is whether any proprietory ownership is possible over information and facts in the first place. As the Delhi High Court order in August pointed out, “neither Star nor BCCI can be permitted to say that mentioning “mobile” rights and auctioning them, would i p s o f a c t olegitimize the parcelling away of right to disseminate information, w i t h o u t f i r s t e s - t a b l i s h i n g t h a t t h e r i g h t o r e x c l u s i v e d o m a i n o v e r s u c h r i g h t s e x i s t e d i n t h e f i r s t i n s t a n c e . ”
As pointed out by analysts that that time, this essentially means that before you l i c e n s e rights, you should first establish that they e x i s t.
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