Hot news misappropriation need not rely on copyright

Broadcasting, particularly sports broadcasting, requires the ability to monetize different aspects or property rights in an event given the huge investments made by event organizers and rights holders such as broadcasting organizations. Naturally, there has been friction amongst entities seeking to monetize such content and entities claiming the right to report newsworthy facts. This article seeks to clarify the debate.

Historical background

Copyright does not protect any abstract thoughts, ideas or facts including the news per se; it only protects expressions of them. It is a statutory right, and arguments that custom allows copyright to be violated have consistently failed. In this regard, in the 1814 case of Wyatt v Barnard, Lord Eldon said that “[t]he real defence set up by the Defendants is in fact a custom to steal, a practice against morals, that neither on principle nor authority can be adduced as a defence”.

Newspapers, however, continued to copy others’ copyrighted content, relying on the acquiescence of those they copied from, along with nebulous notions of custom (which supposedly allowed copying), to attempt to escape legal liability. Judges were often scathing; in the 1892 case of Walter v Steinkopff, Justice North categorically stated: “The plea of the existence of such custom, or habit, or practice of copying as is set up can no more be supported when challenged than the highwayman’s plea of the custom of Hounslow Heath. It has often been relied upon as a defence in such cases, but always has been repudiated by the courts.”

Nandita Saikia is a senior associate at Saikrishna & Associates. She can be contacted at nandita@saikrishnaassociates.com.