Hot News Doctrine in Copyrights

“Hot News” is a recent phenomenon in copyrights. The concept refers to written material or live televised events, often “facts”, that have value for a short duration and will soon lose its importance and value as soon as it comes in the “public realm”. Given the short timeframes, questions of determination of value and underlying doubts about protection at all, analysis of hot news becomes essential and extremely complicated.

The doctrine originated in the US in the pronouncement International News Service vs. Associated Press, wherein it was stated that the customer, who reads the newspaper can disseminate the knowledge for legitimate purposes but when the user provides the information under his/her own name, for commercial purposes, it cannot be admitted as it clearly shows misappropriating the seed which one has not sown. The hon’ble court established the doctrine to give due credit to the organization which invests time and labour to gain news and to prevent any unjust use by any third person.

In India

M/s Marksman Marketing Private Limited vs. Bharti Tele-Ventures Limited: The first case which dealt with the hot news doctrine. Th case was related to disseminating the notifications related to “scores, warnings and updates” of One-Day matches. The court herein, restrained the mobile companies to provide score updates, even when there is contractual agreement, shall lead to unfair and unjust trade practice.

Star India Pvt Ltd vs. Piyush Agarwal & Ors: Star instituted a suit before the Delhi High Court against Piyush Agarwal (Cricbuzz), Idea Cellular and OnMobile Global for permanent injunction and damages, stating that the companies have violated BCCI’s exclusive rights to disseminate the match updates. Herein, the court relied on two essential factors: the proximity of time of the sports news put on the air and the effect of exploitation of copyright on the competition. Based on these factors, the court stated that there shall be no violation on the part of the defendant because stale news is no news. The doctrine of “Hot News” was rejected in this case and focus was shifted to fair use and unjust enrichment.

Based on the pronouncements, it can be inferred that Indian Courts gave not fully recognized the doctrine. Usually, the news operators paraphrase the information and present it in a different way. Given that the idea is not copyrightable, whereas the expression is, it becomes difficult to enforce hot news doctrine in India. Moreover, fair use doctrine is also a hurdle in the incorporation of this doctrine in India. Therefore, it is clear that the hot news doctrine does not sustain in India.

In the United States of America

The perception is that the original expression is copyrightable but the ideas and facts are not. A newspaper agency or blogger can copyright the story but it can never copyright the events reported or prevent anyone else from disseminating it. But under the “Hot News Doctrine”, a narrow protection of certain facts may exist.

Scetion 301 of the US Copyright Law pre-empts a state law claim if it comes under the protection of the Copyright law and the exclusive rights of that work is protected under the Copyright law. The plain reading of this provision clearly provides that the US Copyright law tends to protect the “Hot news” claims.

In the case of National Basketball Association (NBA) v. Motorola, the NBA challenged a text-message service developed by Motorola, designed to give subscribers updates of basketball scores. Motorola attempted to establish a text messaging service that would provide customers with immediate access to NBA scores on an ongoing basis. In establishing the service, Motorola neglected to ask the NBA’s permission to use its scores. NBA had taken the position, since 1993, that it should and could limit the frequency of updates, because its scores change so frequently, essentially making the knowledge of NBA scores more valuable than those of other sports. NBA did not make it to the Supreme Court, but only to the Second Circuit. As a result of changes in the federal Copyright law, the court found that NBA’s property claims had been pre-empted by federal law. Yet some forms of intellectual property could survive “pre-emption” if they met certain requirements. Those requirements include that the plaintiffs (1) gather information at a cost, (2) that the information is time sensitive, (3) that the use of the information by the defendant is “free-riding,” (4) that the defendant is offering a service in direct competition with the plaintiff, and (5) that the capacity to free ride threatens the existence of the plaintiff’s commodity. The court ruled that the NBA could not meet the tests as explicated in such rules, and hence Motorola was awarded a victory (although the service was unsuccessful over time). The ruling seems to have both clarified and complicated legal protections of “hot news.” On the one hand, there is now additional precedent for such protections in common law, but these are somewhat limited in scope, or at least difficult to demonstrate in court. Of particular difficulty, is determining the meaning of competitive “harm.”

In Barclays Capital Ince vs The flyonthewall.com, the hot news doctrine was assessed in the online news market. Herein, the court stated that there is a huge proliferation of news on the Internet and the defendant was doing something that was fairly routine i.e., disseminating information. Therefore, it can be allowed to do so.

Therefore, the doctrine is well-accepted in the United States of America.

Conclusion

The concept of Hot News Doctrine is a creation of the needs of the modern business world and the importance of a particular news at a particular point of time. The importance of the news or live events televised around the world can be protected through the concept of this doctrine. The commercial value of a news or a live event is dependent upon the time of the event and when the time is passed the news or event in particular loose its value. Hence for that particular point of time, when the event is on air, the rights remain with broadcaster and anyone using the broadcast or the news related to broadcast without the permission of the broadcaster would be treated as infringement of the rights of the broadcaster as per Hot News Doctrine.

Author: Tanya Saraswat- a student of Narsee Monjee Institute of Management Studies (NMIMS),  in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

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