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Hot News Misappropriation

Hot news and its misappropriation isn’t really about copyright or about copyright infringement. It was created by the US Supreme Court as a variant of the Common Law tort of misappropriation in International News Service v. Associated Press, a 1918 case where copyright did not and could not apply: copyright is a statutory right, and unless it is infringed in a manner contemplated by the copyright statute, it cannot be infringed. Copyright was not infringed in this case although that did not mean that no wrong had been committed with reference to the unauthorised copying of content.

When it comes to getting news per se from someone else and publishing it oneself — whether it’s hot news or, for that matter, any news — there’s a good chance that a copyright claim simply will not lie unless the other person’s expression of news  has been copied either varbatim or in a substantially similar form. In other words, if one were to, for example, copy a newspaper article verbatim, or almost verbatim, a copyright infringement claim would probably lie. However, if one were to simply ‘scrape’ the data (or, in this case, news) from someone else’s article, and write an article using one’s own words, and then publish one’s ‘own’ article, a valid copyright infringement claim probably would not lie.

This is because of two reasons, which could be considered to be two sides of the same coin. On one side, news per se is not protected by copyright; the underlying premise of this legal position is founded on copyright being a statutory right which protects only specific kinds of works specified by statute. Facts (including news per se) are not included in the list of what it protected. On the other side of the coin, there is absolutely no doubt that expressions of news (such as newspaper articles) are protected, and cannot be reproduced in a substantially similar form without due authorisation. This has been established in cases going as far back as the 19th century.

Judges have routinely held that expressions of news are protected, and, where copying has been verbatim or substantially similar, judges have, at times, been scathing about attempts to justify the unauthorised copying on the grounds of journalistic practice or the like. In fact, in the 1892 case of Walter v. Steinkopff, North, J 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,” while in the earlier case of Wyatt v. Barnard in 1814, Lord Eldon had viewed such a ‘defence’ to copyright infringement as being ‘in fact a custom to steal, a practice against morals, that neither on principle nor authority can be adduced as a defence’.

This, however, (as indicated) applied only to those cases where expressions of news had been copied verbatim (or at least in a substantially similar manner). It did not, and could not, apply where news per se had been extracted from an article, and rewritten using completely different language, simply because copyright has never protected news per se. And it was therefore, when faced with such a factual matrix, that the Supreme Court of the United States created the hot news misappropriation tort. The tort, by itself, is not related to copyright infringement, although, of course, when the copyright subsisting in an article which contains hot news is infringed, both copyright infringement and hot news misappropriation may occur simultaneously. That said, the two are distinct offences.

The passing of the years has seen the US position change slightly; the 1938 case of Erie Railroad Co. v. Tompkins established that federal courts could not create Federal Common Law (leading to the 1918 Associated Press decision becoming a non-binding precedent), while decisions of Second Circuit in the cases of NBA v. Motorola, 1997, and Barclays Capital Inc. v., 2011, clarified the circumstances in which the hot news misappropriation tort would be applicable. In addition to this, a 1976 amendment to US statutory law resulted in both published and unpublished works being protected by a single system of Federal statutory copyright right from the time of their creation, and, further, through Section 301 of Title 17 (the US Copyright Statute), pre-emption with respect to other laws was established (although this pre-emption is by no means absolute, and does not annul or limit any rights or remedies under the common law or State statutes in relation to subject matter that is not protected by copyright).

Section 301 of Title 17, USC, is sometimes touted as being similar to Section 16 of the Indian Copyright Act although the two Sections are nowhere near identical either in terms of content or in terms of structure, and, as far as India is concerned, it is Indian law which is paramount.

Section 16 of the Indian Copyright Act states:
16. No Copyright except as provided in this Act.
No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.
This Section, while clear enough at first glance, appears to be a minefield upon even the most superficial analysis (as can be seen here). Crucially, Section 16 of the Indian Copyright Act applies to ‘works’ alone. The term ‘work’ is defined in Section 2(y) of the Act as meaning “any of the following works, namely: (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording”. The definition is exhaustive, and not inclusive. Therefore, Section 2(y) of the Indian Copyright Act lays down the parameters of Section 16 of the same statute in the first instance, and clearly demonstrates that Section 16 does not apply to anything which is not a work. In other words, Section 16 of the Indian Copyright Act does not apply to ideas or facts or news per se, and contracts relating to all such things would not be governed exclusively by the Indian Copyright Act, if at all.

The scope of Section 16 of the Indian Copyright Act is also further limited by Section 39A of the same statute. This latter Section belongs to the Chapter of the Act which deals with the so-called ‘neighbouring rights’ and enumerates which provisions of the statute that apply to copyright would also apply, with necessary adaptations and modifications, to the neighbouring rights (i.e. the performer’s right and the broadcast reproduction right); Section 16 is not included in this list of provisions, and, as such, a bare reading of the text of the Indian Copyright Act indicates: (i) that the scope of neighbouring rights is not limited by the Copyright Act, and (ii) that the statute does not lay down limitations with regard to neighbouring rights.

If one were to analyse the neighbouring rights, it could be argued that the performer’s right cannot possibly be limited by Section 16 of the Copyright Act being exercised, as it is, in respect of live performances, which, quite simply, are not works. (Section 16, as mentioned earlier, applies only to works.) With regard to the broadcast reproduction right, the situation could possibly be more nuanced with differentiations being made between broadcasts of recorded works (such as cinematograph films and sound recordings) on one hand, and broadcasts of live performances and other events on the other hand. While convoluted arguments may be employed to argue that there is an indirect application of Section 16 of the Indian Copyright Act where recorded works are broadcast, there is no indication in the statute that Section 16 of the Indian Copyright Act applies to live broadcasts of any nature. (Section 39A of the Indian Copyright Act, as mentioned earlier, explicitly omits Section 16 from the list of Sections in the Indian Copyright Act which apply to the performer’s right and the broadcast reproduction right.)

The effect of this is that when it comes to comes to Indian statutory law, there appears to be no indication that a claim for the misappropriation of hot news cannot be made. In fact, hot news misappropriation and copyright infringement are, as mentioned earlier, distinct. The determinations of High Courts have, unfortunately, not been entirely consistent with each other, and the issue has not been conclusively determined by the Supreme Court of India.

(This post is by Nandita Saikia and was first published at Indian Copyright. It reproduces some text from The Statutory Nature of Copyright.)