Creating a new right

The recent Delhi High Court decision on the provision of live ball-by-ball SMS alerts of cricket scores has caused mild consternation among office-goers who will now be denied SMS updates of cricket matches. However this decision does much, much more and hits at the fundamental basis of intellectual property law in the country.

Star India acquired a "bouquet of rights" from the BCCI, under a media rights agreement in respect of various cricketing events in India — rights that include, among others, "mobile rights" and "mobile activation rights". Star India brought a lawsuit against Cricbuzz, Idea Cellular and OnMobile, restraining them from providing ball-by-ball accounts of the proceedings via SMS alerts. The Delhi High Court was asked to decide whether there exists an exclusive right to monetise live cricket scores through alerts sent over mobile phones and if so, whether the defendants were to be restrained.

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.

... contd.

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