Opinion Creating a new right

Based on a number of decisions in the United States (and a 2006 decision of the Madras High Court on a similar matter),the Delhi High Court did not go into the question of copyright infringement,but held that Star India’s common law right against unjust enrichment had been violated. The defendants were accordingly restrained from providing live ball-by-ball accounts of the cricket matches over which Star India had exclusive rights.

While the judgment is well reasoned and supported by case law from around the world,there are many things that don’t add up. For instance,there is the argument used to justify the protection granted to mobile rights based on the phases in which match information becomes public. According to the court,this information first comes into the public domain qua the spectators in the stadium after which it comes into the public domain vis-à-vis those watching (or hearing) the match live on television or radio. It is only after this that it can come into the public domain with regard to everyone else. In order to ensure that ball-by-ball SMS updates do not compete with the first two audiences,the court ordered the defendants to ensure that SMS updates lag live action by at least 15 minutes.

This logic doesn’t really hold up. For instance,once the ball-by-ball information has come into the public domain qua the spectators,could those spectators not send out SMS updates of the scores from within the stadium? Even if this happens to be prohibited under the terms and conditions of entry into the stadium,if you extend the logic further,what is to stop television viewers from sending out match alerts? How,under these circumstances,can the 15-minute rule be enforced?

However,what is most troubling about this case is the clear message that it seems to have sent out — that the court is willing to create new rights where none exist under the statute. This approach is inconsistent with the Indian judiciary’s traditionally circumspect approach to policymaking — courts usually leave legislation to Parliament. What makes it worse is that the court has chosen to sail this path in a case relating to intellectual property — an area of law where legislative protection is,by design,granted selectively only to those few types of intangible property that the legislature deems deserving of protection.

By its very nature,the protection granted to intangible property is in the form of a limited monopoly that creators enjoy so they have the opportunity to earn recompense for their efforts in creating those works. Law abhors a monopoly and our legal system goes to great lengths to prevent the creation of monopolies. Which is why,even though there is a jurisprudential justification for the monopoly granted to intellectual property,this protection is so strictly circumscribed.

Most intellectual property statutes ensure that the rights they grant are limited both in time and scope. All statutes prescribe,in narrow terms,the types of intangible property that are entitled to protection and usually stipulate that no protection will be available to anything not expressly permitted by statute.

It is this fundamental principle that the court seems to have ignored in this case. There is,at present,no statutory protection available to “mobile rights” or ball-by-ball score alerts. While there may be strong arguments justifying why such a right is deserving of judicial protection,this cannot be justification for the creation of a common law right from thin air.

All said and done,whichever way you may look at it,this is a landmark judgment. It has armed content owners with new weapons with which to protect their franchise. One can only hope it does not set an unhealthy precedent.

The writer is a partner at a Bangalore-based law firm