Today I present to you a case of copyright infringement that deals with fair dealing aspect of Copyright Act, 1957. This is the case between ICC owned subsidiary(Plaintiff No. 1) and a sports broadcasting and content provider which delivers various international and regional sports contents to viewers via its sports channels(Plaintiff No. 2) with New Delhi Television Ltd.(Defendant) who runs a number of news channels such as NDTV 24*7 (English) and NDTV India (Hindi).
What is the lawsuit about?
Plaintiff no. 1 had granted Plaintiff no. 2 exclusive rights to make live, deferred or delayed transmissions on its channels from September, 2007 till 2015 and includes exclusive broadcast reproduction rights of ICC events.
Plaintiff’s filed the lawsuit in accordance with ICC CWC 2011 match. In the lawsuit, Plaintiff’s stated that Defendant violated News Access Guidelines framed by Plaintiff no. 1 on multiple occasions and thus, had infringed the Plaintiff no. 1’s copyright. Plaintiff no. 1’s guidelines only permits use of the fresh footage for five and a half minutes per news day, two minutes of fresh footage per hour of broadcasting and two repeat exhibition per broadcast hour whereas, Defendant broadcasted footage for more than the allowed limits.
Plaintiff argued that Defendant did not acknowledged Plaintiff no.1’s rights and did not even use the logo of Plaintiff no.2 or the logo of ICC CWC 2011. Plaintiff also argued that Defendants have commercially used ICC CWC 2011 logos, trademarks, word marks, trophy with third parties during broadcast of special shows relating to the matches. Plaintiffs had also objected to the use of Score Cube used by Defendant for providing continuous score along with the name of the advertiser/sponsor.
Defendant did not argued the fact that they did not used Plaintiffs’ footage as per the guidelines during ICC CWC 2011, but they said that the relief sought by Plaintiffs would impinge on its Constitutional rights and that they were protected by fair dealing provisions Section-39 and Section-52 of the Copyright Act,1957. They also stated that doing this will be against public policy and the interests of the general public.
Defendant also said that Plaintiffs should not be allowed to bring a suit after 16 months of the ICC CWC 2011. They argued that plaintiff had no cause of caution to file this suit and seek an injunction against an anticipated act which could be infringement by Defendant, of the rights of the Plaintiffs in the ICC Twenty-20 World Sri Lanka, 2012. Defendant contented that they were following the guidelines laid down by the News Broadcasters Association (NBA).
News Broadcasters Association(NBA), which is an association of news broadcasters, provides that a designated news broadcaster may broadcast a maximum of 5.5 minutes of fresh footage per match per news day, which may be repeated in a news cycle, provided that in addition to 5.5 minutes of fresh footage mentioned above, not more than a maximum of one minute of fresh footage from the pre match toss, any pre-match entertainment, post-match entertainment and any post-match presentation may be used. It further provides that if broadcast as a part of news or sports bulletin, a maximum of two minutes of fresh footage may be used per half our of broadcasting and if broadcast is a part of special programme, a maximum of six minutes of fresh footage may be used per hour of the broadcasting. The number of repeats is restricted to two repeat exhibitions per half
hour of news broadcast, provided that such restrictions on repeats do not apply to fresh footage of an exceptional event which has been defined to mean any newsworthy event of an extraordinary nature or a landmark achievement from a match including, without limitation, events such as the scoring of a boundary, the fall of a wicket, the scoring of a half-century or a century and/or the achievement of any personal cricketing landmark by any player. These guidelines permit broadcast maximum of six minute of usage per news day, which can be repeated throughout the day provided that if broadcast as a part of a special programme, a maximum of 4.5 minutes of the archival footage may be used per hour of broadcasting and the same can be repeated if the programme is repeated. If broadcast as a part of promotional programming, a maximum of 10 seconds per promotion, show-open or montage is allowed with not more than a maximum of 60 seconds of archival footage to be used in a news day within promotional programming.
The following issues arose for consideration of the Court in this case
· What should be the maximum length of the fresh and archival CS(OS) 2416/2012 Page 7 of 43 footage which can be said to be consistent with the concept of fair dealing with the work of the plaintiffs.
· Whether advertisements can be carried by the defendant immediately before, during or immediately after special programme which it telecasts on the news channels.
· Whether advertisements can be shown on the ticker(s) below the footage at the time live/archival footage is being shown during such special programmes.
· Whether the defendant can give such title(s) to its special programmes as would indicate an association of the sponsor/advertiser of such programme with the event subject matter of discussion in such programmes.
1. On the first issue of maximum length Local District Judge, followed the ruling in “ESPN Star Sports v. Global Broadcast News” 2008 (38) 477 (Del.) (DB) (which was made from the ruling in “Media Works V. Sky Television Network” CIV 2007-404-5674), and held:
“The term “broadcast” has been separately defined under Section 2(dd), as a communication to the public. It is thus evident that there could be both copyright and broadcasting reproduction right which could separately co-exist. As an example the copyright of cinematography film being broadcast on a satellite channel vests with the producer of the film whereas the broadcast reproduction right for the same vests with the broadcaster channel itself. The recording of such movie and unauthorized re-telecast by cable operators could thus result in violation of two separate rights. The first being the copyright which vests with the producer and second the broadcast reproduction right which vests with the broadcaster channel. These rights may vest with two different persons or even with the single person which is evident from the Act.”
Ld. Judge also stated that “The reporting of news is undoubtedly a fundamental right vested in the news channel by way of Article 19(1)(a) of the Constitution but, however, repeated and prolonged telecast by the respondents of what was actually broadcast by the appellant, especially in a form of a special programme, may amount to commercial exploitation not protected by Article 19(1)(a).
The Ld. Judge therefore directed that the duration of the footage, fresh or archival by Defendant would be limited to the extent permitted under the “ICC Twenty 20 World Cup, Sri Lanka, 2012” News Access Regulations in India.
2. The second issue was related to advertisements for which Judge said that “Presenting special programmes is a part of Defendant’s right to report this event in which people of this country are greatly interested and to carry out its review. Therefore, there can be no valid objection to the Defendant presenting special programmes with respect to ICC World Cup, 2012. But, if the Defendant carries an advertisement immediately before, during or immediately at the end of such programmes and the footage of the Plaintiffs is used in the programme, that that would certainly amount to commercial exploitation of the work which is not protected either under Article 19(1)(a) of the Constitution nor under Section 37 and/or 52 of the Copyright Act, 1957. It has to be kept in mind that Plaintiff No. 2 also present special programmes where experts are invited to review the match and comment upon the performance of the players.”
For broadcasting the footage NBA guidelines were asked to be followed which states that there needs to be minimum of 7 minutes delay following the live broadcast of any footage by the official /host before the excerpts of any footage may be used by the bulletin broadcaster.
3. Regarding the issue of advertisements on tickers the Ld. Judge said that the use of Plaintiffs’ footage during news bulletins is not per se inconsistent with the concept of fair dealing merely because the advertisement is carried on the ticker of the footage when it is shown as part of the news bulletin. It was therefore held that Defendant would be at liberty to carry advertisements on tickers provided such advertisements have not been booked to be shown exclusively during the reporting of ICC Twenty 20 World Sri Lanka 2012. The Ld. Judge has additionally held that the advertisements/logos of the sponsors of the news bulletin in which Plaintiffs’ footage is shown can be carried by Defendant on tickers at the time of reporting of the event, only if the sponsorship is of the news bulletin and the logo/advertisement of the sponsor appears on the ticker throughout the news.
4. Ld. Judge also asked Defendant to acknowledge Plaintiffs’ rights and follow these guidelines:
· A courtesy bug acknowledging Plaintiffs rights should be pasted by Defendant during broadcast of the footage.
· Correct name of the event or the shorter title as per the guidelines of the Plaintiff should be used on the footage telecasted by the Defendant.
· A courtesy line should be included on the screen, in case Defendant’s logo is covering Plaintiff’s logo
5. Ld. Judge also stated that the Plaintiffs can seek injunction on the basis of an anticipated act, on the apprehension that the Defendant would infringe their rights during ICC Twenty-20 World Sri Lanka, 2012.