Sports has always been a passionate affair for all the Indians for a long time and the impact it makes in the lives of the people has only multiplied over the years with the advent of technology that enabled streaming of live matches and games, both online and offline. More often than not such matches are aired through licensing contracts entered into between the hosting body of a particular sport and a broadcasting organization like the ESPN or Star Sports whereby an exclusive copyright, at par with an original dramatic/literary work, called ‘broadcast reproduction right’ is conferred upon the latter. S.37 of the Copyright Act, 1957 sets out this right, loud and clear. Since reporting of these events to inform the viewers about its progress and results, would need other organizations like the news houses to air snippets of such matches, it would virtually result in the infringement of aforementioned rights.
Here arises the relevance of Fair Dealing, an exception to the idea of exclusivity of copyrights, that permits the reproduction or use of copyright for the purpose of reporting of current events, in a manner laid down by S.39 (b) and S.529b) of the Act and thus embodies an exception to infringement of copyrights. While the concept of Fair Dealing or Fair use, as known in US, sits on the solid bed-rock of public interest, the commercial prospects of the broadcast right holders suppressed beneath wears off at times, leading to claims of infringement of their rights.
Is Public interest hoodwinked into commercial exploitation of the broadcast rights?
There indeed lies a fundamental right to report news under Article 19(1)(a) with the broadcasting houses of news networks but piggybacking on the commercial stakes of a broadcasting body that has acquired broadcast reproduction rights, by interposing the reporting with advertisements and brand marketing of their sponsors or using the match-clippings in the news excessively or even holding discussions, analysis and related programmes centred around displaying key moments of the match, would be totally unjustifiable and result in breach of broadcast rights. In such cases the defence of the public interest involved in the information dissemination of current events will not suffice, as it tantamount to a direct exploitation of the broadcaster’s investment. In the context of social networking and related apps also these days we often see highlights of cricket/football matches being shared by fans rather generously and celebrating its entertainment value.
Twin test of reporting of current events
In the light of such developments, it is pertinent to trace what constitutes ‘reporting of current events’ as it is the yardstick of fair dealing as mandated by S.39 and S.52 of the Act. For this, the conjoint reading of two important decisions of the Delhi High Court, namely ‘ESPN Star Sports v. Global Broadcast News Limted & Ors.’(2008) and ‘NDTV v. ICC’(2012), will throw some light to the twin test propounded by the court.
Nature of the coverage : It checks if the coverage is mere result-oriented reporting or involves analysis or review of a sporting event. In the latter case, injunction must follow notwithstanding the fact it is fair or unfair reporting.
Aggregate length of reporting : With regard to the this, there has been many precedents which set diverse time limits such as a minimum of 2 minutes of sports feed per bulletin or 7-10 minutes per day. But in this case the Court rationally observed that the aggregate length of reporting can only be discerned on a case to case basis as the coverage of each sport demanded different durations of display. Obviously the time-frame for reporting of a match of cricket can never be on the same footing as that of a larger event like Olympics due to the obvious change in scale and scope.
Conclusion
Fair dealing in copyright is the quintessential limb of public interest, but when clothed in the context of ‘reporting of current events’ through which broadcast of sports videos are effected, the very same limb often gets coloured in pursuit of gaining commercial mileage by other TV channels and social networking agencies, forcing it to carry out scathing attack on the broadcast reproduction rights of the legitimate broadcasters. While it certainly remains a concern as for their investments and profits, such a right of broadcasters in itself will be questioned soon as it poses a hurdle in this era where any clippings can be shared online for entertainment, educational, analytical or even promotional purposes by anyone.