By, Shubhank Suman
News stands for “Notable Events, Weather and Sports”[i] which deals with the newly received or noteworthy information, especially about recent events. In recent times, the use of News is not limited only to spreading awareness. Nowadays people started using News for taking important decisions which made News a significant part of the decision-making process. In correspondence with its rising importance, the definition of News has also been changed with the change in time, News today does not only contain local affairs but even live events like sports matches that are broadcast around the world. Therefore, it also raises the question concerning copyright infringement on live events when the News is being utilized without the permission of the copyright owner. This question results in the emergence of a “Hot News” doctrine that concerns with the illegitimate usage of contents of live events by a third party.
The “Hot News” doctrine is considered as a specific aspect of copyright that deals with “the written material or the live televised events, often that have value for a short duration, and which will soon move into the public realm losing their value completely”[ii]. In simple words, The “Hot News” doctrine which is also known as “Hot News” misappropriation doctrine states that, although facts and ideas of News produced by a content producer cannot be protected under copyright, the content producer has expended time and money to obtain the content and is entitled to revenues from it until it has become commercially viable. When a competitor takes and resells the content without incurring any cost, it unfairly damages the content provider.
ORIGIN AND DEVELOPMENT OF THE HOT NEWS DOCTRINE
The theory of the “Hot News” doctrine originated from the case of International News Service vs. Associated Press (INS)[iii] in 1918. In the case, International News Service (INS) and the Associated Press (AP) were competitors and involved in the collection and dissemination of News to press and other media outlets in the US. However, later international News Service had been forbidden from using American and UK cables to transmit News. Hence, they copied News out of the AP’s wire and bribed AP workers to acquire News in order to continue sending war updates to their subscribers. They then published it themselves without attributing it to the AP. Consequently, AP sued INS for infringement of copyright and pleaded for an injunction.[iv]
The Court observed that this case is not of copyright but unfair competition, as details of the News cannot be protected under copyright law. However, the Court further observed that while individual Newspaper purchasers have a right of non-commercial dissemination of the News, the transmission of a rival for trade and commercial purposes is another matter. The Court held that INS committed unlawful interference with the normal functioning of the company of AP by selling the content of a competition that needed an organization and expense of its own. The Court had stated, “precisely at the point where the profit is to be reaped, in order to divert . . . profit from those who have earned it to those who have not. This gave INS a special advantage because it was not burdened with the expense of gathering the News.”[v] The Supreme Court, therefore, established the theory of “Hot News” doctrine to give due credit to the organization that invests its time and labour to gather such News and to prevent other organizations from getting unjust enrichment from it. The main reason behind the establishment of this doctrine is the labour (or “sweat of the brow”) theory. However, the court did not define exactly how long News would remain “hot-News”, leaving that to be determined by facts of each case.
The second most important development regarding the doctrine of “Hot News” happened in the case of National Basketball Association (NBA) v. Motorola,[vi] where Motorola had developed a text-message service to track basketball scores on a ball-to-ball basis for subscribers. This service was questioned in the said case, on the ground of copyright infringement under “Hot News” doctrine, contending that Motorola used to copy scores from SportsSticker from which NBA had already negotiated a deal to display the updates of scores. The court by referring the case of INS held that the Copyright Act of 1976, pre-empted a narrow Hot News misappropriation claim and also set out certain essentials for the “Hot News” doctrine.[vii]
(i) The plaintiff must incur some cost or expense to generate or gather information.
(ii) The information of the News must be highly sensitive to time.
(iii) The information used by the defendant shall be free reliance on the efforts made by the complainant to obtain or compile it.
(iv) The use of information by the defendant must compete directly with a product or service offered by the complainant.
(v) The defendant’s free reliance on the efforts made by the complainant would result in the reduction of the incentive to produce the products or services.
POSITION IN INDIA
In the case of M./s Marksman Marketing Private Limited v Bharti Tele-Ventures Limited (unreported), the Indian courts first dealt with the “Hot News” doctrine, where the plaintiff’s sought to prevent a number of mobile companies from providing information through text notifications relating to “Scores, warnings, and updates” of One-Day Cricket Matches. The plaintiff’s claimed that he was exclusively entitled throughout India to do so by means of extensive contractual agreements. The court, in this case, restrained several mobile telecom companies from providing score updates of cricket matches via S.M.S on the grounds of unfair trade practice and unjust enrichment.[viii] In several subsequent cases, the courts upheld this view. However, the controversy has been started from the case of Star India Pvt Ltd v Piyush Agarwal & Ors.[ix] where Star instituted a suit in Delhi High Court – against Piyush Agarwal (Cricbuzz), Idea Cellular and OnMobile Global – for permanent injunction and damages, contending that the companies violated BCCI’s exclusively assigned rights to Star India, including mobile rights and rights of mobile activation by disseminating match updates and scores via SMS which resulted in unfair enrichment, unfair competition and criminal misappropriation of plaintiff’s property.
The Court while examining the case under “Hot News” doctrine refused to go with NBA’s 5 test criteria and considered its own factors, firstly “the proximity of time of the sports News being put on the air to the sports event in this reference court held that the more proximate the time, the more the weightage to the use being unfair, although longer the event is, lesser will be the importance attached to this factor”. Secondly “whether the offending program competes with the exploitation of the copyright by the copyright owner and which would include the effect of the offending use on the actual or the potential market for the copyrighted work and depend on competition”[x]
On the basis of these factors, the court held that “There shall be no restriction upon the defendants to report ‘noteworthy information’ or ‘News’ from cricket matches, as and when they arise, because ‘stale News is no News”. The court further observed that no copyright existed in match scores and any attempt to providing supplementary rights under common law in the form of “Hot News” doctrine to match scores would be against the legislative scheme, especially where Section 16[xi] read with Section 63[xii] of the Copyright Act.[xiii] Therefore, the court in the case rejected the concept of providing protection to “Hot News” under “Hot News doctrine” and laid more stress on the principle of fair use and unjust enrichment. The court further clarified that “Hot News” doctrine exists only between the close News competitors and here neither Star India, and BCCI where engaged themselves in match News dissemination, nor they were close competitors to CricBuzz. However, later the higher courts also observed that the party which has paid for and invested in purchasing the rights is the one who will enjoy the privileges that come with the rights; so dissemination of certain information can be restricted for some time for maintaining its economic viability, but it should be based on the principle of fair use and not on the ‘Hot News doctrine’. Therefore, it can be said that the doctrine of “Hot News” has not received full-fledged recognition from the Indian Courts unlike the Courts of the USA.
CHALLENGES TO HOT NEWS DOCTRINE IN INDIA
- One of the major challenges to “Hot News” doctrine in India is the chance to recover from a News, or the information aggregator for infringement is very less under the Indian copyright law. This is because News aggregators basically take an important part of the News and paraphrase it in their own words, instead of copying the whole content. Therefore, it is difficult for the content producer to prove substantial similarity between original and copied contents.
- Under Indian Copyright law, though the expression of an idea is copyrightable, the underlying idea of expression is not. For example, if a blogger copies an idea from a News or information and put it in his own words, it is not copyright infringement. This is also the theoretical basis of the decision of the INS where no breach of copyright has been found, as most articles have been rewritten.
- Another major challenge to the doctrine of “Hot News” is the principle of “fair use” which is an exception to copyright infringement and draws a line between legitimate and malafide use of copyrights. So even when a blog aggregator uses a part of the information, it has an argument of fair use against infringement.
- In the various judgments, the court observed that vital and noteworthy information cannot be restricted from dissemination. However, other information that is of less importance can be restricted to maintain the economic viability of the contents. The court here did not specify what exactly constitutes vital information and what could be the duration of restrictions.
In light of the above discussion, we can say that concept of “Hot News” doctrine is ambiguous and at its infancy stage. Since the “Hot News” Doctrine is a product of the needs of modern business, and it is necessary to protect News and events that are transmitted worldwide, its scope must be tapped to cope up with the current realities. Therefore, the need of the hour is to come up with uniform laws that provide rights of dissemination to broadcasters as long as the event is live on the TV to maintain its economic viability. However, in due process, we should also not ignore the difficulties associated with the “Hot News” Doctrine, as observed in the INS case. Even though there are certain countries like the USA and the UK that partially follow “Hot News” Doctrine, their law excludes instances where it is quintessential to the information. Hence it be must be properly analyzed and resolved.
[i] V Lakshmikumaran, India: Delhi High Court rejects hot News doctrine, (Sep 13, 2013),https://www.managingip.com/article/b1kc1rf8x0xwvc/india-delhi-high-court-rejects-hot-News-doctrine.
[ii] Himanshu Sharma & Leena Desai, Hot News doctrine in copyrights, (Oct 31, 2012), https://www.lexology.com/library/detail.aspx?g=913d7e2c-6b0c-4b9e-a4a0-af83eae7f4e8.
[iii] International News Service vs. Associated Press, 248 U.S. 215, 245 (1918)
[v] John C McDonnell, The Continuing Viability of the Hot News Misappropriation Doctrine in the Age of Internet News,(2013).
[vi] National Basketball Association (NBA) v. Motorola, 105 F.3d 841, 845 (2d Cir. 1997)
[vii] Hot News: The “Hot-News” Doctrine Is Hot Again! Or Is It?, (Dec,2014), https://fedsoc.org/commentary/publications/hot-News-the-hot-News-doctrine-is-hot-again-or-is-it.
[viii] Sharma, and Desai, supra note 2.
[ix] Star India Pvt Ltd v Piyush Agarwal & Ors, CS (OS) No. 2780/2012.
[x] Anubha Sinha, Delhi HC rejects the “Hot News” Doctrine: A Summary, (Sep 4, 2013) https://spicyip.com/2013/09/delhi-hc-rejects-hot-News-doctrine.html.
[xi] Indian Copyrights Act 1957, Sec 16.
[xii] Indian Copyrights Act 1957, Sec 63.
[xiii] India, supra note 1.