In what is expected to have a far reaching impact, the Delhi High Court (the “Court”) has recently passed a major judgment on 13 March 2013 (“2013 Judgment”) recognising a specific and distinct right against unjust commercial enrichment under common law.
A single judge bench of the Court passed this judgement in the Star India Pvt. Ltd. v. Piyush Agarwal & Others. whereby the Court jointly disposed of three cases filed by Star India Pvt. Ltd. (the “Petitioner” / “Star India”) against Piyush Agarwal (Cricbuzz), OnMobile Global Ltd., Idea Cellular and others (the “Respondents”). The dispute arose on the issue that the Respondents were sending instant cricket score updates by way of text messages to their customers. The Petitioner filed the case against the Respondents claiming exclusive media rights over all the matches organised by the Board of Control for Cricket in India (“BCCI”). BCCI was arrayed as a common defendant in the case but it supported Petitioner in claiming its rights against the Respondents. The media rights, including ‘mobile activation rights’ and ‘mobile rights’, were entrusted to Star India exclusively for a 72 hour period by virtue of an agreement dated 10 August 2012 entered into between Star India and BCCI. Star India contested that the Respondents were violating these rights by sending live score updates through text messages.
Brief background of the case:
In its earlier judgement dated 8 November 2012 (“2012 Judgement”), the Delhi High Court had turned down the contention of the Petitioner and dismissed the Case. While passing the 2012 Judgement, the Hon’ble Judge had made the following observations:
- The right to use information emanating from cricket matches cannot be recognised as a separate copyright. As under Section 16 of the Copyright Act, except for the specified copyrights, there cannot exist any right or copyright in any other work.
- As long as the Respondents are not copying in the original audio or visual recording of the match and are only using the information relating to the match, there is no bar on the Respondents to disseminate the information for commercial purposes after two minutes of first broadcast by Start India.
However, the 2012 Judgement was set aside by the division bench of Delhi high Court on grounds of serious procedural informities, and therefore, the case was heard afresh by another single judge bench presided over by Hon’ble Justice M.L. Mehta and the 2013 Judgement was passed.
Issues in the case:
The primary issues involved in the case were as follows:
- Whether a specific right to monetize the information emanating from a cricket match can be created considering there is a specific bar contained in Section 16 of the Copyright Act.
- Whether the Respondents are free-riding on the efforts of the BCCI (unjust commercial enrichment).
- Whether the Respondents have freedom under Article19(1)(a) of the Constitution (“Article 19”) to disseminate contemporaneous match information.
Cases relied on:
The Court primarily relied upon the legal principle enunciated in the following cases:
- United States Supreme Court case of International News Service vs. Associated Press (“INS Case”) in which it was held that:
“The defendant’s act of taking material acquired by the skill, organisation and money of the complainant and appropriating it and selling it as its own is trying to reap where it has not sown and would thus constitute unfair competition. The underlying principle behind the tort of unfair competition is that he who has fairly paid the price should have the beneficial use of the property”.
- Madras High Court case Marksman Marketing Services Pvt. Ltd. vs. Bharti Tele Ventures Ltd. & Other (Marksman Case) in which it was held that:
“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.”
- Supreme Court case of Mahabir Kishore & Ors. v. State of Madhya Pradesh,(“Mahabir Kishore”) in which it was held that:
“The principle of unjust enrichment requires; first, that the defendant has been enriched by the receipt of a benefit; secondly, that this enrichment is at the expense of the plaintiff and thirdly, that the retention of the enrichment be unjust. This justified restitution. Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.”
Observation made in the 2013 Judgement:
– Bar contained under section 16:
It was observed in the instant case that Star India was not seeking for creation of copyright and was merely claiming a remedy under the common law against the tort of unjust commercial enrichment. That Star India had claimed absolute proprietary rights under common law over all the information which arises from a cricket match and not under the Copyright Act. Therefore, the point that the right to give live score updates cannot be recognised as a separate copyright under section 16 of Copyright Act is considered not to be relevant.
– Unjust Commercial enrichment:
While deciding on the issue of unjust commercial enrichment, the Court applied the same test which was observed in the case of Mahabir Kishore. It was observed that the Respondents were seeking to generate revenue by way of providing score updates. Therefore, after applying the above test it was clear that the Respondents were enriching themselves at the cost of Star India. The Court also applied the principal stated in INS Case. It observed that the right of Star India to monetize his own event need not find its source in any statutory enactment, since it is a fundamental principle of equity that the person who has paid a fair price should have the beneficial use of the property.
– Freedom of speech and expression under Article 19:
The Court observed that all information relating to a cricket match constitutes “news”, and would be protected under Article 19. It was further observed that minute- by- minute updates cannot be protected under Article 19 as it would cause huge monetary loss to Star India. In order to strike fair balance between the provisions of Article 19 and the rights of Star India, the Court banned the Respondents from giving out live score updates. However, it was held that the Respondents can give the score updates after a time lag of 15 minutes by way of text messages.
The judgement dated 13 March 2013 reflects a significant position taken by the Delhi High Court, and whether it will remain as a landmark in this area of law needs to be seen. It would be interesting to note, if this judgement is challenged, how a superior court would deal with this.
248 U.S. 215, 39 S.Ct.68 (1918)
O.A. No. 78/2006
1989 SCR (3) 596
Souvik Bhadra [firstname.lastname@example.org]