Delhi High Court
Icc Development (International) Ltd & ... vs New Delhi Television Ltd on 18 September, 2012
Author: V.K. Jain
Bench: V.K.Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 14.09.2012
Judgment pronounced on: 18.09.2012
+ CS(OS) No.2416/2012
ICC DEVELOPMENT (INTERNATIONAL)
LTD & ANR ..... Plaintiffs
Through: Mr Amit Sibal, Mr. Harsh Kaushik, Mr.
Sankalp Dalal and Mr. Nanju Ganpathy
Prateik, Advocates for plaintiff no.1.
Mr. N. Ganapathy and Mr. Manpreet Lamba,
Advocate for plaintiff no.2.
Versus
NEW DELHI TELEVISION LTD ..... Defendant
Through: Mr. Rajiv Nayyar, Sr. Advocate with Mr.
Vijay K. Sondhi, Mr. Sanjay Kumar, Mr.
Varun Pareek and Mr. Suhail Malik, Mr Udit
Sood,
Mr Saurabh Seth and Mr Himanshu Bagai,
Advocates
Mr Anup J. Bhambhani & Ms Nisha
Bhambhani and Ms Bhavita Modi Advs. for
Intervener (NBA)
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
V.K. JAIN, J.
IA No.14505/2012 (under Order 39 Rule 1 and 2 CPC)
1. The plaintiff no.1 is a wholly owned subsidiary of ICC, international governing body for the sport of cricket, and the functions assigned to it by ICC include holding of cricket competitions held under the aegis of ICC and managing CS(OS) 2416/2012 Page 1 of 43 sponsorships and programmes in relation to such cricket competitions. The exploitation of all the commercial and other rights pertaining to such competitions is one of the functions assigned to plaintiff no.1. Plaintiff no.2 is a sport broadcasting and contents provider, which delivers various international and regional sports contents to viewers via its sport channel services. Plaintiff No.2 is the host broadcaster and provides broadcast services to plaintiff No.1, for the purpose inter alia, of making and transmitting live and highlight transmissions. Plaintiff No.2 provides broadcast services and produces the broadcast feed which includes a number of alterations to the live feed such as scores, statistics, graphics, analysis and several other inputs which it provides while making the broadcast. The plaintiff no.1, has awarded, to plaintiff no.2, exclusive broadcasting rights for ICC events which include making live transmissions, deferred transmissions and/or delayed transmissions on designated websites with commentary in any language. In accordance with the agreement between the plaintiffs, plaintiff no.2 has assigned all rights in the footage of ICC CWC 2011 to plaintiff no.1, which now owns the copyright in the said footage. Under the agreement between the plaintiffs, the plaintiff no.2 has been granted exclusive rights to record, edit and use the said footage/clippings for the purpose of making and transmitting highlights/clippings on its channels, right to utilize the footage belonging to plaintiff No.1 for TV shows, shown on its channels. The rights given to the plaintiff no.2 include the CS(OS) 2416/2012 Page 2 of 43 right to use the footage for advertisement and promoting exclusive broadcast of ICC events including ICC CWC 2011.
Thus, in nutshell, according to the plaintiffs all the rights, including copyright in the footage vest with plaintiff no.1, which has granted the same to plaintiff no.2 with right to sub-license such rights as are provided in the agreement between them. The plaintiff no.2 has exclusive rights to make live, deferred or delayed transmissions on its designated channels, record, edit or utilize footage in order to transmit highlights, mobile broadcast rights along with various broadcast sponsorship rights, commercial airtime rights and other rights to associate ICICI events for the period from September, 2007 till 2015 and include an exclusive broadcasting reproduction rights of ICC events. Plaintiff no.1 has granted sponsorship/ partnership rights to various companies such as LG Electronics Corp., Pepsi Cola International and they have paid large sums of monies to be designated official sponsors of ICC CWC 2011. Some of the rights granted to the sponsors/ partners have been enumerated in para 11 of the plaint and include rights to advertise in the official programmes of each ICC CWC 2011 cricket match, have its logo identification as a global partner/official sponsor printed on official material, non exclusive right to use thirty minutes of video of events held prior to commencement of the agreement with plaintiff No.1, non-exclusive right to use upto two minutes of footage from each match, after 72 hours of completion of the CS(OS) 2416/2012 Page 3 of 43 match, for promotional/advertising purposes, have sponsorship of ICC CWC 2011 promoted on the website of plaintiff No.1.
2. It is alleged that ICC CWC 2011 which started on 12.2.2011 and ended on 2.4.2011, was witnessed by as many as 2.2 billion viewers. The plaintiff no.1 claims to have made substantial investment in terms of time, skill, labour and money for organizing such event. The television production of the events alone costs more than US$ 10 million to plaintiff no.1. The plaintiff no.2 also incurs considerable expenses in equipments, staff and production facilities to broadcast such events. Since the stadium where the matches are played have limited capacity, television is the primary source of disseminating all such events to the general public and plaintiff no.1 is able to recover its investments largely by selling exclusive rights to parties such as plaintiff no.2 and official sponsors of the events.
3. The defendant company is running a number of TV channels such as NDTV 24x7 (English) and NDTV India (Hindi). It is alleged in the plaint that after ICC CWC 2011 commenced, the defendant violated the News Access Guidelines framed by plaintiff no.1 on multiple occasions and infringed the copyright and other rights of the plaintiff no.1. The guidelines framed by the plaintiff no.1 permit use of the fresh footage for five and a half minutes per news day, two minutes of fresh footage per hour of broadcasting and two repeat exhibition per broadcast hour. The defendant, however, broadcasted more than six minutes of archive CS(OS) 2416/2012 Page 4 of 43 footage per news day two of archive footage. The defendant, however, far exceeded the limits set out in the said guidelines with respect to the use of fresh and archive footage. It is also alleged that the defendants did not even extend the courtesy bug acknowledging the plaintiff no.1 nor did it use the logo of plaintiff no.2 or logo of ICC CWC 2011. The defendant is alleged to have positioned logos, trademarks, word marks and image of ICC CWC 2011 trophy adjacent to intellectual properties of third parties which were not associated with the said events and also used the said logos, trademarks, word marks and images in fantasy and prediction games sponsored by third parties not associated with the events. ICC CWC 2011 logos, trademarks, word marks, trophy are also alleged to have been commercially associated by the defendant with third parties during broadcast of special shows relating to the said events.
4. In its reply, the defendant has not disputed the copyright and broadcast right claimed by the plaintiffs. The defendant has also not denied use of the footage of ICC CWC 2011. It has also not been disputed that the defendant has been carrying advertisements on the tickers at the time footage is shown. The defendant has also not disputed telecast of special/sponsored programmes during ICC CWC 2011. The plea taken by the defendant is that the injunction sought by the plaintiffs would infringe on its constitutional and statutory rights and would also be against public policy and interests of the general public. It is also alleged that usage of footage in CS(OS) 2416/2012 Page 5 of 43 the news amounts to fair dealing with the same and is covered by the exceptions provided under Section 39(b) and 52(1)(a)(iii) of the Copyright Act 1957. The defendant has also contended that the plaintiffs had no cause of action to file the present suit, injunction sought by them being against an anticipated act. It is also contended that the plaintiffs are not entitled to injunction after more than 16 months of ICC CWC 2011 taking place. The defendant has denied commercially associating third parties with the event organized by the plaintiffs. As regards advertisements during use of the footage, it is stated that the advertisements remain on the lower ends and corner of the screen and are so placed that the paid sponsors are not associated with the sporting event. According to the defendant, the advertisements remain there on the screen irrespective of whether the news pertains to ICC World Cup or not and are not placed there only during telecast of the footage. It is also claimed that the defendant, though primarily guided by principles of fair dealing also derived guidance from the guidelines issued by NBA. According to the defendant, the advertisements on the scroller remain there even after telecast of the footage of the plaintiffs is over and the main bulletin is restored.
5. Primarily, the following issues arise for prima facie consideration of the Court in this case:-
(i) What should be the maximum length of the fresh and archival CS(OS) 2416/2012 Page 6 of 43 footage which can be said to be consistent with the concept of fair dealing with the work of the plaintiffs;
(ii) whether advertisements can be carried by the defendant immediately before, during or immediately after special programme which it telecasts on the news channels;
(iii) whether advertisements can be shown on the ticker(s) below the footage at the time live/archival footage is being shown during such special programmes;
(iv) whether the defendant can give such title(s) to its special programmes as would indicate an association of the sponsor/advertiser of such programme with the event subject matter of discussion in such programmes.
(v) whether advertisements can be shown on the ticker(s) below the footage at the time live/archival footage is being shown during news bulletins and if so, subject to what conditions and limitations.
6. The term „broadcast‟ has been defined in Section 2(dd) of the Copyright Act, 1957 to mean communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast. Section 37 of the Act provides that every CS(OS) 2416/2012 Page 7 of 43 broadcasting organization shall have broadcast reproduction rights in respect of its broadcast. Thus, broadcasting rights are independent of the copyrights granted under the Act and this legal preposition was upheld by a Division Bench of this Court in ESPN Star Sports v Global Broadcast News Ltd. & Ors. [2008(38) 477 (Del.) (DB)], where the Division Bench, inter alia, observed and held as under:
"17....The term "broadcast" has been separately defined under Section 2(dd), as a communication to the public. It is thus evident that there could be both copyright and broadcasting reproduction right which could separately co-exist. As an example the copyright of cinematography film being broadcast on a satellite channel vests with the producer of the film whereas the broadcast reproduction right for the same vests with the broadcaster channel itself. The recording of such movie and unauthorized re-telecast by cable operators could thus result in violation of two separate rights. The first being the copyright which vests with the producer and second the broadcast reproduction right which vests with the broadcaster channel. These rights may vest with two different persons or even with the single person which is evident from the Act."
Section 39 of the Act, to the extent it is relevant, provides that no broadcast reproduction right shall be deemed to be infringed by the use consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research. Section 52 of the Act, to the extent it is relevant, provides that a fair dealing with any work not being a computer programme, for the purpose of reporting of current events and current CS(OS) 2416/2012 Page 8 of 43 affairs, shall not constitute an infringement. Therefore, the Legislature while recognizing copyright and broadcast rights as independent rights has permitted use of the work of another person for limited purposes, provided that such use does not travel beyond the fair dealing with the work. The Act does not define as to what constitutes „fair dealing‟ with a work in which the copyright and/or broadcast reproduction right is held by another person. However, the following observations made by the Division Bench of this Court in ESPN (supra), throw some light on what may not amount to fair dealing with such a work:
"23. Therefore, a lot of effort entailing considerable expenditure is undertaken by the broadcaster to bring the live feed of the match on television and the benefits of bringing the live feed of the match ought not to be reduced by the repeated telecast of the important portions of the match by a channel in a special RFA(OS) 25/2008 Page No.45 of 68programme which may adversely affect the commercial viability of the appellant's telecast. It is the broadcasting reproduction right of the broadcaster which is an exclusive right, including an independent copyright and any reproduction of any such work in any form and for excessive durations may amount to infringement of its rights. Excessive usage of the telecast of the appellant in the form of news, in a given case may amount to the infringement of the right of the broadcaster, which has the exclusive monopoly to broadcast the live feed of the match or CS(OS) 2416/2012 Page 9 of 43 any reproduction of it or of any programme before the start of the match or after the match is over. It is also noteworthy that if such a right of the broadcaster is not protected then the whole concept of an exclusive broadcaster producing a telecast or live feed of the event would become futile, diluted and uneconomical and thus, the rights of the broadcaster under such circumstances need to be protected.
xxxx Thus, the prolonged RFA(OS) 25/2008 Page No.46 of 68and repeated footage of the broadcast of the cricket match in the news channels, beyond what is permissible by the concept of fair dealing, may unfairly affect the appellant's exploitation of its rights. The appellant's goodwill, its relationship with the advertiser and its commercial prospects could be substantially damaged by this competition. Hence, the broadcasting reproduction rights of the appellant needs to be protected.
25. ....Thus, any unauthorized and prolonged telecast/replay of the cricket match or portion thereof falling beyond the concept of fair dealing without the permission of the appellant, amounts to infringement of the broadcasting reproduction right, the monopoly of which belongs to the appellant as above. However, we make it clear that this position of law does not apply to news coverage falling within the ambit of 'fair dealing' by the respondent T.V. Channel."CS(OS) 2416/2012 Page 10 of 43
In Media Works NZ Limited and another v Sky Television Network Limited [CIV 2007-404-5674], the defendant before the Court Sky Television was telecasting the footage of „Rugby World Cup,2007‟ for which the broadcasting rights were held by TV-3 Channel. The issue before the Court was whether Sky‟s use of that footage falls within „fair dealing right‟ created under Section 42 of the New Zealand act or not. The excerpts played by Sky TV were very short in duration usually not more than a minute. As per the agreement of TV3 with Rugby World Cup Limited, the copyright owner in the work, no advertisement could be carried out during live broadcast of the matches. TV3, therefore, had developed magazine style programmes, outside the live broadcast, in order to attract advertisers and earn revenue. The Court in that case, inter alia, held as under:
"71. In British Broadcasting, the Judge had regard to guidelines a representative of BSB had provided to the producer of the programme. Those guidelines noted that fair dealing meant that the extract must be brief, and should be considered in the context of the length of the recording. For World Cup broadcasts, in relation to any one match, an extract of not more than 60 seconds duration was thought to be acceptable, repeated no more than 4 times in one day. The extracts had to be used within 24 hours of the event for it to amount to a "current event", and was only to be used in a programme that reported current events, e.g. not in a review of a player's career to date.CS(OS) 2416/2012 Page 11 of 43
The Judge referred to these as "fair and proper" guidelines, noting that a fair dealing defence may still be available even if one or other of the guidelines had not been strictly observed. However, the preparation and observance of the guidelines were considered to provide a solid foundation for a fair dealing defence for the purposes of reporting current events.......... ............
[76] The rate of repetition of TV3's footage by Sky is in itself an unfair dealing with the material. It will erode to some extent at least, TV3's position as the exclusive broadcaster of the World Cup. The level of access to footage shown by Sky is such that for some viewers it will be enough to satiate, rather than whet their appetite for more coverage................... [114] Having weighed these matters I consider that the balance of convenience favors the grant of an injunction. At this point I take a step back and consider where the overall justice lies. It lies with TV3. At considerable cost it bought the exclusive rights to broadcast Rugby World Cup matches. It has structured its business planning, investment and programming around that acquisition. TV3 has a strong case that Sky's use of its footage is beyond what might reasonably be necessary for reporting current events. Its use is likely to compete directly with TV3's own exploitation of its rights. TV3's goodwill (its brand, its audience, its relationship with advertisers) could be substantially damaged by that competition, but the damage would be difficult to adequately quantify." (emphasis CS(OS) 2416/2012 Page 12 of 43 supplied)"
The above reasoning was expressly approved by the Division Bench of this Court in ESPN(supra) and it was of the view that the test laid down in the above judgment must of necessity be applied when determining the claim of fair dealing.
The Division Bench also held as under:
"The respondents under the guise of news reporting could certainly show significant events such as a century/fall of wicket/attainment of landmark achievement in cricket and a scoring of a goal, grant/denial of a penalty and sending off a player in Football and Hockey. They may also show a controversial incident which occurred in the match. However, such events could not be shown to an extent where fair comment transpires itself into a commercially profitable programme showing several minutes of footage of the appellant or its report in a programme centered around a discussion. The reporting of news is undoubtedly a fundamental right vested in the news channel by way of Article 19(1)(a) of the Constitution but, however, repeated and prolonged telecast by the respondents of what was actually broadcast by the appellant, especially in a form of a special programme, may amount to commercial exploitation not protected by Article 19(1)(a), especially when the factum of the programme being aired later in the day is constantly advertised and announced by the news CS(OS) 2416/2012 Page 13 of 43 channel and such programmes are liberally interposed with commercials. In addressing the issue of fairness, it is necessary to look at the totality of the footage of the broadcast of the cricket match as shown by the respondents. The appellant contended that through the number of programmes and the rate of repetition of those programmes, the respondents are achieving an intensive level of broadcasting of the appellant's distinct and exclusive footage in direct competition with the appellant's telecast. It is also evident that such telecast by the news channels are in commercial competition with the appellant's telecast because of the amount and importance of the work which has been utilized. In light of these principles as noted above, we are of the view that the appellant's case, that the use by the respondents of the repeated broadcast of the cricket match in the various footage is not fair dealing, is certainly required to be considered by the learned Single Judge while disposing of the interim relief application."
In this regard, the Division Bench also held as under:
"However, this above position of law expressed by us in this judgment should in no manner be construed as curbing the news channel's rights to have special programmes based on cricket/cricket matches. Indeed such a right is an inalienable part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. If, therefore, there CS(OS) 2416/2012 Page 14 of 43 is a cricket based programme involving discussion, analysis, interaction with the audience and other allied features without utilization of unreasonably excessive footage from the appellant's telecast, such right is in our view is fully protected. Indeed, in the facts of the case such analysis could certainly include the footage already telecast by news channels under the rights available to it, subject of course to the limitations imposed by the concept of fair dealing."
7. The learned senior counsel for the defendant is right in submitting that reporting news and current events is a part of fundamental right of Freedom of Speech and Expression, guaranteed under Article 19(1)(a) of the Constitution. But, since reasonable restrictions can always be placed on such a right in terms of Article 19(2) of the Constitution, and the validity of the Copyright Act, 1957, to the extent it protects the copyright and broadcast rights subject to the exceptions and exemptions stipulated therein, has not been challenged, the defendant, while using the works in which copyright/broadcast rights are held by the plaintiffs, is required to confine such use to the provisions contained in the said Act. Therefore, the footage of the plaintiffs cannot be used by the defendant for an unlimited duration and only that much footage can be shown as is necessary for reporting the news and current events and/or for review of the event subject-matter of the rights of the plaintiffs.
CS(OS) 2416/2012 Page 15 of 43
8. As regards the length of the footage which the defendant can show on its channels, as rightly pointed out by the learned counsel for the plaintiff, this is not the case of the defendant, in its reply to the application, that the limit fixed by the plaintiff under the guidelines framed by them, was inadequate for reporting of the matches or their review by experts. As noted earlier, the guidelines framed by the plaintiff, use of fresh footage permit a broadcast of a maximum of 5.5 minutes per news day during news programmes provided that a maximum of two minutes of fresh footage can be broadcasted per hour of broadcasting and the broadcast of fresh footage may be repeated during a news day, but the total number of broadcast of such footage will not be more than two exhibitions per hour of broadcasting. Any permitted repeat of the broadcast of fresh footage does not count towards the maximum permissible limit of 5.5 minutes of fresh footage per news day. With respect to the archival footage, the guidelines permit a maximum of six minutes of such footage per news day, subject to a maximum of two minutes of such footage per hour of broadcasting, as in the case of fresh footage. Broadcast of archival footage may be repeated but is restricted to four exhibitions per news day, provided there is interval of not less than two hours between each exhibition. Any archival footage merged with fresh footage is to be treated as fresh footage.
In its reply, the defendant does not say what according to it should be the maximum footage allowed per news day in its news programmes. Same is the CS(OS) 2416/2012 Page 16 of 43 position with respect to archival footage. This is not the case of the defendant that the limit of two minutes of fresh footage per hour of broadcast is inadequate for review of the match in the special programme or for reporting the match as a part of reporting of current events and current affairs, permitted under Section 52(1) of the Act. Same is the position with respect to the total number of broadcasts of fresh footage and archival footage.
9. News Broadcasters Association(NBA), which is an association of news broadcasters, provides that a designated news broadcaster may broadcast a maximum of 5.5 minutes of fresh footage per match per news day, which may be repeated in a news cycle, provided that in addition to 5.5 minutes of fresh footage mentioned above, not more than a maximum of one minute of fresh footage from the pre match toss, any pre-match entertainment, post-match entertainment and any post-match presentation may be used. It further provides that if broadcast as a part of news or sports bulletin, a maximum of two minutes of fresh footage may be used per half our of broadcasting and if broadcast is a part of special programme, a maximum of six minutes of fresh footage may be used per hour of the broadcasting. The number of repeats is restricted to two repeat exhibitions per half hour of news broadcast, provided that such restrictions on repeats do not apply to fresh footage of an exceptional event which has been defined to mean any newsworthy event of an extraordinary nature or a landmark achievement from a CS(OS) 2416/2012 Page 17 of 43 match including, without limitation, events such as the scoring of a boundary, the fall of a wicket, the scoring of a half-century or a century and/or the achievement of any personal cricketing landmark by any player.
These guidelines permit broadcast maximum of six minute of usage per news day, which can be repeated throughout the day provided that if broadcast as a part of a special programme, a maximum of 4.5 minutes of the archival footage may be used per hour of broadcasting and the same can be repeated if the programme is repeated. If broadcast as a part of promotional programming, a maximum of 10 seconds per promotion, show-open or montage is allowed with not more than a maximum of 60 seconds of archival footage to be used in a news day within promotional programming.
In the guidelines of the plaintiff, a fresh footage has been defined to mean as any footage (other than archival footage and live footage) broadcast for the first time by a Designate News Broadcaster. The definition given in the guidelines of News Broadcasters Association is almost the same except that it does not expressly exclude the live footage.
In the guidelines of NBA, archival footage has been defined to mean any footage from a match from the period 24 hours after the completion of the match concerned, and/or any and all match footage from previous events. CS(OS) 2416/2012 Page 18 of 43
The guidelines of the plaintiffs, however, also include, in archival footage, all match footage from previous events listed in Schedule-II of the guidelines.
10. Neither the guidelines framed by the plaintiff nor the guidelines framed by NBA have a statutory backing and the said guidelines, therefore, can only be used as an aid in determining what can be said to be use of the footage consistent with the concept of fair dealing with the work. As noted by the Division Bench in ESPN Star Sports (supra), reproduction of such footage for excessive duration may amount to infringement of the copyrights which the copyright holder and broadcasting rights holder have in the work and would travel beyond the concept of fair dealing, since such use may unfairly affect the rights of copyright holder/broadcasting rights holder to exploit the rights for which they have incurred considerable expenditure and efforts.
In Media Works NZ Limited (supra), the Court referred to the guidelines, which stipulated that fair dealing mean that the extract must be brief and should be considered in the context of the length of the recording. Considering the format of Twenty-20 World Cup and the time which such matches normally take, I find no justification to hold that the guidelines framed by the plaintiffs with respect to length of fresh and archival footage which the broadcasters can use is so unreasonable as to impinge on their right to report current events and current affairs and to undertake a meaningful and purposive review of the event subject CS(OS) 2416/2012 Page 19 of 43 matter of/or connected to the footage. In fact, during the course of arguments before me, there was not much dispute between the parties with respect to length of the fresh and archival footage which a news broadcaster is permitted to use free of any cost to it. I, therefore, hold that unless otherwise indicated in this order, the defendant can use the fresh and archival footage only for such duration and subject to such limitations and conditions as is permitted in the guidelines framed by the plaintiff.
11. Coming to the special programmes, a perusal of the screen shot at pate 529, 533, 536, 539 and 570 would show that the defendant has been associating various companies with the events subject matter of such special programmes. Use of the names of such advertisers in this manner, is bound to given an impression to the viewers that either these advertisers are the sponsors of the event or are otherwise associated with it. In the screen shot on the page 529, the names of Aircel and J P Cement appear just above the heading "Today‟s Match". The team logo of India and Bangladesh along with time and venue of the match also appear on the screen. The impression one gets is that the match referred on the screen was sponsored by Aircel and J P Cement. In the screen shot at the page 533, Aircel and J P Cement are shown as the presenter of "Cup of Pride". This obviously is reference to ICC World Cup, 2011 which was being played at that time. Admittedly, neither Aircel nor J P Cement was the official sponsor of the said event. Despite that, the CS(OS) 2416/2012 Page 20 of 43 advertisement gives an impression of these companies being the organizer/sponsors of the event. In the screen shot on page 539, Aircel has been shown as presenting "Googly" which is a form of bowling. Again, this advertisement indicates a connection between Aircel and the event being played at that time. On page 536, Aircell is shown as presentor of "Super Hit Muqabala". Again, this is a clear reference to ICC World Cup, 2011, though Aircel was not officially associated with the event.
It is not in dispute that there are various companies which are officially associated with ICC World Cup Event, 2012 and which have paid large amounts to the plaintiffs for such association/sponsorships. If the advertisers other than those who are officially associated with the event are allowed to be shown as presenter of the event or otherwise associated with it, that is bound to diminish the value of the rights purchased by the official advertisers/sponsors. The learned counsel for the plaintiff was right in submitting that there would be no good reason for these official advertisers/sponsors to pay large sums to the plaintiffs for being associated with the event in case they can directly strike deals with the news channels paying much lesser amounts to them and if allowed to be shown, this is bound to prejudicially affect the revenue which the plaintiffs generate from such events, thereby impairing their capacity to organize such events and bring them to the viewers in the form they are being brought.
CS(OS) 2416/2012 Page 21 of 43
For the reasons stated above, I am of the view that the defendant cannot use the name, logo, etc. of any advertiser in the special programmes with respect to ICC World Cup, 2012 in a manner which would give an impression of the advertiser being a sponsor of or associated with the event.
12. The defendant is running news channels and not a sport channel. Presenting special programmes is a part of its right to report this event in which people of this country are greatly interested and to carry out its review. Therefore, there can be no valid objection to the defendant presenting special programmes with respect to ICC World Cup, 2012. But, if the defendant carries an advertisement immediately before, during or immediately at the end of such programmes and the footage of the plaintiffs is used in the programme, that, in my view, would amount to commercial exploitation of the work which is not protected either under Article 19(1)(a) of the Constitution nor under Section 37 and/or 52 of the Copyright Act, 1957. It has to be kept in mind that plaintiff No. 2 also presents special programmes where experts are invited to review the match and comment upon the performance of the players. If the defendant airs such programmes, some of the viewers, interested in watching such programmes may, instead of watching the channel of plaintiff No. 2, watch the channels of the defendant. To this extent, there may not be any valid objection to hosting such programmes and it is for the viewers to decide which programme they want to see. But, if the defendant shows CS(OS) 2416/2012 Page 22 of 43 advertisement immediately before, during or immediately after special programmes in which footage of the plaintiffs is used, that would not be a bona fide dealing with the work of the plaintiffs protected under Sections 37 and 52 of the Act, since the preliminary objective of the defendant in that case would be deemed to be earning profits at the cost of the advertisers of the plaintiffs and cannot be said to be an act of reporting current news and events and/or reviewing of such events. It has to be kept in mind that the viewers of such programmes would be those who are specially interested in such programmes and not the general viewers of the news and current events. Therefore, it is the potential viewers of such programmes on the channel of plaintiff No.2 who would be drawn to such programmes if produced and aired by the defendant. The defendant cannot use the footage of the plaintiff to give an unfair advantage to its advertisers, at the cost of official advertisers of the plaintiff, by carrying out advertisements in case the footage is used during the special/ sponsored programmes. Therefore, carrying out advertisements during such programmes cannot be consistent with the concept of fair dealing. The Defendants cannot be allowed to earn commercial advantage to the prejudice of the plaintiff during such special programmes.
13. The guidelines framed by the plaintiff provide that broadcast of a fresh footage needs to be delayed by at least 30 minutes for ICC Twenty-20 World Cup. In my view, the restriction is wholly justified considering the fact that despite CS(OS) 2416/2012 Page 23 of 43 restrictions on use of the footage, the news channels would be at liberty to report the event, without any restrictions, so long as the live footage is not shown. This is not the case of the defendants in their reply that 30 minutes delay in telecasting the footage comes in the way of efficient reporting of the event, subject matter of the footage. During this 30 minutes interregnum, the defendants may, through its news Readers and reporters inform the viewers of every important development in the match including fall of a wicket, scoring of a century/ half century of live score, personal achievement of a player and breaking of a previous record, besides live score of the match. The restriction is only on telecast of the live footage. Considering that the sports channel of the plaintiff no.2 would be telecasting the event live, the defendant cannot be permitted to have direct competition with that channel at the cost of the plaintiff by telecasting the footage which is live or which does not maintain a reasonable time lag between the live telecast and delayed telecast.
Under the guidelines framed by the NBA, there needs to be minimum of 7 minutes delay following the live broadcast of any footage by the official /host before the excerpts of any footage may be used by the bulletin broadcaster. The exception to this Rule is permitted in case of exceptional events for which the minimum of at least five minutes delay is required. As noted earlier, exceptional events include scoring of a boundary, fall of a wicket, scoring of a century/ half CS(OS) 2416/2012 Page 24 of 43 century and any personal achievement by any player. The guidelines permitted by NBA, in my view, do not adequately safeguard the interest of the plaintiff since five minutes or seven minutes delay may not achieve the desired objectives. It has to be kept in mind that the viewer of a news channel normally watches the channel for the purpose of knowing the current events and happenings which are not confined to cricket matches being organized by the plaintiff. Therefore, the delay of thirty minutes between the live telecast and delayed telecast would not be permitted to the interests of the viewers who, go to a news channel for knowing the score of the match and not for seeing its live footage. If they want to see the live footage, they would prefer to go to the channel which is telecasting the match live and not to a channel which shows such footage as part of its regular news programmes.
14. As regards advertisements on the tickers, at the time footage of the match is being shown, the learned counsel for the plaintiff drew my attention to clauses 6 and 7 of the guidelines framed by NBA which reads as under:
"6. The use of Fresh Footage pursuant to paragraphs 3 and the use of Archival Footage pursuant to paragraph 5 above is strictly limited in each case to use within news and/or current affairs programmes. No use of Fresh Footage and/or Archival Footage is permitted in any circumstances for any commercial purposes.CS(OS) 2416/2012 Page 25 of 43
7. For the avoidance of doubt, a Designated News Broadcaster may commercially exploit a news and/or sports and/or current affairs and/or other programme within which Fresh Footage and/or Archival Footage is broadcast as a whole, in the regular course, through normal advertising/ sponsorship breaks usual in programming of news channels, provided always that, except as permitted pursuant to paragraphs 8 to 10 below, no advertising, sting, logo, graphic, and/or any other commercial (morphing) activity occurs immediately before, immediately after or during the Fresh Footage and/or Archival Footage and no association is created between the use of Fresh Footage and/or Archival Footage and any third party brand or product.
He has also pointed out that even in its reply, the defendant has stated as under in this regard:
"..It is further submitted that as per the industry guidelines and practice a news organization is permitted to show regular show sponsorships and normal ad spots so long as there is no advertising immediately before or after or during the airing of the footage.
..It is submitted that the defendant is permitted to air sponsored shows on its channel provided there are no advertisement before or after or during the telecast of the footage. This has been the practice of the defendant and is also the prevalent industry practice duly recognized by the NBA."CS(OS) 2416/2012 Page 26 of 43
The learned counsel for the defendant on the other hand contended that the above referred extracts from the reply do not pertain to advertisements/ sponsorship shown on the tickers and apply only to the advertisements on the footage itself. In reply, the learned counsel for the plaintiff pointed out that this is nowhere the case in the reply of the defendant that advertisements are permitted on the tickers, though not on the footage itself.
The learned counsel for the defendant contended that as stated in the reply advertisements on the tickers appear irrespective of whether the news on the tickers pertains to the ICC World Cup or not, they are not specifically placed on the tickers during telecast of the footage, and are not meant to indicate any association of the advertisers with the footage.
The learned counsel representing NBA also submitted that the guidelines framed by them do not prohibit advertisements on the tickers during the time the footage is being played and it is only the advertisement on the footage itself which are prohibited. This, however, was countered by the learned counsel for the plaintiff who pointed out that even the guidelines do not permit advertisements even on the tickers during airing of the footage and the contention of the learned counsel is contrary to the guidelines framed by NBA.
CS(OS) 2416/2012 Page 27 of 43
15. In my view, the use of the footage of the plaintiff during news bulletins is not per se inconsistent with the concept of fair dealing merely because the advertisement is carried out on the ticker of the footage when it is shown as a part of the news bulletin. As observed by this Court in Super Cassettes Industries Ltd. v Hamar Television Network Pvt. Ltd. [2011 (45) PTC 70 (Del.), it is neither possible nor advisable to define the exact contours of fair dealing and every commercial use of a work does not ipso facto render it unfair. As held by the Division Bench in the case of ESPN Star Sports (supra), the question as to whether an act does or does not amount to a fair dealing with the work in which copyright/ broadcast right is held by another person would vary from case to case and depend upon the particular facts of each case. No hard and fast rule can be laid down as to what constitutes fair dealing with a copyright/ broadcast right. As and when use of such work by a person other than the person holding copyright/ telecast right is challenged, the Court would have to examine the matter on the facts and circumstances of the cases including the length of the use, context in and the purpose for which the work is used and the intention behind such use, whether it is by way of a bonafide reporting of the current news and its review or it is aimed at commercial exploitation of the work so as to gain unfair advantage for the broadcaster.
CS(OS) 2416/2012 Page 28 of 43
The learned counsel for the plaintiff pointed out that the advertisements are not always there on the tickers as is contended by the learned counsel for the defendant. In this regard, he referred to screen shots on pages 527, 528, 530, 531,533 532 of the documents where there is no advertisement either on the first ticker or on the second ticker. In the screen shots at page 554, the advertisement appears only on the first ticker and not on the second ticker though this is a screen shot taken at the time the footage is being broadcast. In the screen shot on page 535, there is no advertisement either on the first ticker or on the second ticker. Same is the position in the screen shot at page 538. These screen shots filed by the plaintiff clearly show that the advertisement on the tickers do appears sometimes though not all the times a news item is being telecast. There can be no objection to the advertisements of the sponsor of the news bulletin being shown on the ticker(s) since, carrying such advertisement cannot be said to be a commercial exploitation of the footage at the time the footage is shown during the course of the news broadcast. It is quite possible that the advertisements received by the defendant during the days the ICC World Cup is organized are higher than the advertisements received on the days when no important event is being held. But, this is true not only of the events such as ICC World Cup but also all other events including important sports events. Therefore, it would not be appropriate, in my view, to altogether stop advertisements on the tickers during the time the footage is being CS(OS) 2416/2012 Page 29 of 43 shown on the channels of the defendant. It has to be kept in mind that the interest of the viewer of the news channel is not confined to cricket or even the sports- events alone. They watch a news channel to have information with respect to national and international happenings and that may include the sports events such as ICC World Cup, but it cannot be said that showing advertisements on the tickers during the telecast of the footage would have the effect of diverting the viewers from the news channel of the plaintiff no.2 to the news channel of the defendant. As stated earlier, the defendant runs a news channel and not a sport channel whereas the plaintiff no.2 is running only a sports channel. Therefore, there is no competition as such between the channel of the plaintiff and the channel of the defendant. It has to be borne in mind that private channels cannot survive without advertisements, which are their bread and butter. The only source of revenue for them is the advertisements and subscriptions which they get from DTH/cable operators. The advertisements on the tickers are carried by them not only when they telecast footage of the plaintiff, but also when they telecast the works in which copyrights are held by others, the obvious reason behind such practice being that such advertisements are not considered to be commercial exploitation of the work and such a practice, in my view, is consistent with the concept of fair dealing enshrined in Section 39 and 52 of the Copyrights Act, 1957.
CS(OS) 2416/2012 Page 30 of 43
In my view, it cannot be said that showing advertisements on the ticker, during telecast of the footage is per se meant to take commercial advantage of the footage and works to the disadvantage of the plaintiff, when viewed in the light of the fact that such advertisements on tickers are being shown also when the footage of the plaintiff is not being telecast. There is no direct competition between the plaintiffs and the defendant and such footage is shown either as a part of the regular news bulletin or as a part of a review of the event which is permitted under Section 39 of the Act, so long as it is consistent with the concept of fair dealing with the work. It is only if the defendant books an advertisement agreed to be shown only at the time the event is being reported or displays the logo/ advertisement of the sponsor only while reporting the event, it can be said to be taking commercial advantage of the footage for defendant‟s own purposes and to the detriment of the plaintiffs or their advertisers.
Airing the advertisements agreed to be shown only during the time the event, subject matter of the footage, is being reported would not be consistent with the concept of fair dealing with the work and would amount to commercial exploitation of the said work, by taking undue advantage of the same without any payment to the holder of the copyright/ broadcast rights. Therefore, the defendant cannot be allowed to show any advertisements on the tickers if they are booked to be shown only during reporting of ICC CWC 2012. I also feel that if there is a CS(OS) 2416/2012 Page 31 of 43 sponsor of the news bulletin, the name of the sponsor should appear on the ticker, throughout the news bulletin and not only during reporting of the ICC Twenty-20 World Cup, 2012.
16. There is no dispute between the parties that no advertisement can be shown either immediately before, during or immediately after the fresh or archival footage of the plaintiff is shown by the defendant. It is also not disputed before me that no advertisements can be carried on the footage itself, whether shown during special /sponsored programmes or during regular news bulletins.
17. No advertisement can, in my view, be carried out by the defendant on the tickers, at the time the footage of the plaintiff, whether fresh or archival, is being shown during a special/ sponsored programme, whether as a part or independent of the news bulletin. As noted earlier, such programmes come in direct competition with similar programmes being shown by the plaintiff no.2, which has contractual arrangement in this regard with the official sponsors advertisers of such programmes. Any advertisement even on the tickers, shown during such programmes is likely to create an impression of the sponsor/ advertiser being associated with the event, which, in turn, is likely to have prejudicial effect on the commercial interests of the official sponsors/ advertisers who have entered into contractual arrangements with the plaintiff in this regard. If advertisements are shown on the tickers at the time the footage is being telecast during such CS(OS) 2416/2012 Page 32 of 43 programmes, it can hardly be disputed that the purpose in showing such advertisements is to commercially exploit the work of the plaintiff without making any extra efforts and without paying any charges to the plaintiff. Such exploitation of the work in which the copyrights/ broadcast rights are held by the plaintiff would not be consistent with the concept of fair dealing with such works, and, therefore, cannot be permitted.
18. During the course of arguments, the learned counsel for the plaintiff, drew my attention to a number of screenshots which show advertisements on the footage itself, in the news programmes of NDTV Hindu. The learned counsel for the defendant fairly conceded that such advertisements appearing on the footage itself go beyond the concept of fair dealing with the work and, therefore, cannot be allowed. He however, maintained that the defendant does not any more have any connection with NDTV Hindu. Be that as it may, it is made clear that no advertisements can be allowed on the footage of the plaintiffs, if used by the channels of the defendant.
19. The guidelines framed by the plaintiff stipulate that courtesy bug acknowledging IDC and ESS must be pasted by the designated news broadcast with due prominence throughout the broadcast of any footage and they must use the correct name ICC World Twenty-Twenty Sri Lanka, 2012 or a shorter title „ICC World Twenty-Twenty‟ and the event logo in all broadcasts in which the CS(OS) 2416/2012 Page 33 of 43 event is mentioned or referred to, whether or not including the broadcast of any clip of fresh footage and/or archival footage. It further provides that in the event the official event or ESS Logo should be covered by the logo of the news broadcast, it must include courtesy line extended at the bottom of or elsewhere on the screen. I do not see any valid reason to the pasting of courtesy bug with due prominence on the footage of the plaintiffs if shown by the defendant. Similarly, there can be no objection to carry out correct name of the event or the shorter title as per the guidelines of the plaintiff, on the footage of the plaintiff, telecasted by the defendant. There can be no objection to a courtesy line being extended on the screen, in the case of official logo of the plaintiff is covered by the logo of the defendant.
20. I do not find any merits in the contentions that the plaintiffs cannot seek injunction on the basis of an anticipated act, on the apprehension that the defendant would infringe their rights during ICC Twenty-20 World Sri Lanka, 2012. It is an admitted position that the defendants used the footage of the plaintiffs during ICC CWC 2011 and the footage at that time carried advertisements booked by the defendant. It is also not in dispute that special programmes sponsored by third parties, not connected with the event, were also telecasted by the defendant during ICC CWC 2011. Prima facie, the use of the footage in the manner it was done during ICC CWC 2011, constitutes an infringement of the copyright/ broadcasting CS(OS) 2416/2012 Page 34 of 43 right of the plaintiffs. This is also not the case of the defendants in their reply that during ICC Twenty-20 World Sri Lanka, 2012, they would not be using the footage in the manner it was used during ICC CWC 2011 and they would confirm to the guidelines framed by the plaintiffs in this regard. Their case is that use of the footage in the manner they did during ICC CWC 2011 is protected by Article 19(1)(a) and Section 39(b) and 52(1)(a)(iii) of the Copyright Act, 1957. This, in my view, gave more than sufficient cause of action to the plaintiff to file this suit since there is a genuine and imminent threat of the rights of the plaintiffs being infringed by the defendants in the same manner it was done during ICC CWC 2011. The plaintiffs need not wait till the event is over since the main relief being claimed by them would become more or less infructuous, once the event is over. In view of the provisions contained in Section 37 and 38 of the Specific Relief Act read with Order 39 Rule 1 and 2 of the Code of Civil Procedure, the plaintiffs need not wait till the actual injury is caused to them and a bonafide apprehension of such injury being caused to them is sufficient to give rise to a cause of action to seek injunction.
21. The plaintiffs have also objected to the score cube at the bottom of the screen where the defendant gives score of the match on a continuous basis alongwith the name of an advertiser/sponsor. This, to my mind, cannot be objected to by the plaintiffs since it does not involve any use of the work of the plaintiffs. The score CS(OS) 2416/2012 Page 35 of 43 of the match is in public domain and can be broadcasted by any channel as a part of its right to report current news and events. In my view, mere giving the name of an advertiser/news sponsor of the defendant along with with the live score does not give an impression of the advertiser/sponsor of the plaintiff being associated with the event.
22. The learned counsel for the plaintiff submitted that since the defendant is a commercial channel unlike Doordarshan, actuated by profit motive and not by any public interest and since in Prasar Bharti v Sahara TV Network Pvt. Ltd. & Ors. [2006(32) PTC 235 (Del.)], the Court prohibited commercial programmes and advertisements before, during and after the cricket news any advertisement even on tickers during telecast of the footage would be its commercial exploitation, which should not be permitted. The learned counsel for the defendant, however, pointed out that this was an agreed interim order and, therefore, does not reflect the view of the Court as to whether the advertisements can be shown during telecast of the footage or not. Therefore, in my view, this judgment does not help either the plaintiff or the defendant.
23. In Time Warner Entertainment Co.,L.P. & Ors v RPG Netcom & etc.[AIR 2007 Delhi 226], relied upon by the learned counsel for the defendant, a Division Bench of this Court held that the ownership right do not subsist in a cinematograph film before the film is complete and prospective owner of such a film cannot be CS(OS) 2416/2012 Page 36 of 43 regarded as an author or first owner of the film. The Court held that any right to claim infringement in a future work does not exist in any person before the cinematograph film is complete. The contention of the learned counsel for the defendant was that they are not using any cinematographic film as defined under Section 2(f) of the Act since they are using live feed and, therefore, they are not infringing any copyright of the plaintiff. In ESPN Star Sports (supra), ESS was receiving live footage from the host broadcaster (Channel-9) and was broadcasting such footage after making their additions or alterations etc. The Division Bench held that recording of final mix, as telecast, gives rise to an independent copyright to ESS in such a final recording and this copyright was separate and distinct from the satellite broadcast made of the mix by the ESS which would give rise to a broadcast reproduction rights. It was further held that the satellite broadcast per se would not amount to a cinematograph and, therefore, the broadcast through a satellite, of a live coverage of a match, gives rise to a broadcast reproduction right, but not necessarily a cinematographic right, since the latter would arise only if there is an actual recording of what has been broadcasted and where it has been merely broadcasted through satellite without recording them. The learned counsel for the plaintiff, however, pointed out that the „broadcast‟ as defined in Section 2(dd) means communication to the public by not means of wire deviation or by wire and this right is independent of the copyright as was upheld by the Division CS(OS) 2416/2012 Page 37 of 43 Bench of this Court in ESPN Star Sports (supra). This right finds statutory recognition in Section 37 of the Act. The reliance upon this judgment, therefore, is wholly misplaced.
24. It was contended by the learned counsel for the defendant that though, according to the plaintiff, they infringed the copyright/ broadcasting right during ICC World Cup, 2011, the plaintiff chose not to come to the Court till soon before the commencement of the ICC Twenty-20 World Cup, 2012 and, therefore, they are guilty of laches and delay. In this regard he placed reliance on Kanungo Media (P) Ltd. v RGV Film Factory and others [2007 LawSuit (Del.) 1648]. No prejudice having been caused to the defendant company on account of plaintiff not coming to the Court earlier. The plea of delay, acquiescence, waiver and laches normally becomes fatal when prejudice is shown to have caused to the defendant on account of such delay and laches. In the absence of any prejudice to the defendant having been shown, the delay in case of commercial exploitation of the copyright/ broadcast right unless it is very unreasonable, is not necessarily fatal to the defendant. Therefore, I am not inclined to decline the injunction only because the plaintiff did not approach the Court either during or soon after ICC World Cup, 2011. Moreover, in Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia & Others [2004 (3) SCC 90], the Supreme Court expressly held that in case of infringement "either of trademark or of copyright", normally an injunction must CS(OS) 2416/2012 Page 38 of 43 follow and mere delay in bringing an action is not sufficient to deny grant of injunction in such cases. This judgment applies not merely to infringement of trademark since the view taken by the Apex Court is not confined to cases of infringement of trademark but expressly referred to infringement of copyright. It is, therefore, difficult to say that the delay in coming to the Court is fatal to the case of the plaintiffs.
25. The learned counsel for the plaintiff has in his written submissions referred to Neo Sports Broadcasts Pvt. Ltd. v Independent News Service Pvt. Ltd. and another [CS(OS) 2030/2010 decided on 01.10.2010]; Satnam Singh and others v Punjab & Haryana High Court and others [1997 (3) SCC 353]; Project Officer, IRPD and others v. P.D. Chacko [2010(6) SCC 637]; Deewan Singh and others v Rajendra Pd. Ardevi & Ors [2007(10) SCC 528]; T.N. Housing Board v Keeravani Ammal & Ors. [(2007) 9 SCC 255]; Harper & Row, Publishers Inc. v Nation Enterprises [471 U.S. 539]; The Right Honourable Paddy Ashdown, MP PC v Telegraph Group Ltd.,[ (2000) EWCA Civ 1142]; M/s. Marksman Marketing Services Pvt. Ltd. v Bharti Tele-Ventures Ltd. & Ors. [C.S. 74 of 2006 in the High Court of Judicature of Madras]. Whereas the learned counsel for the defendant in his written submissions has referred to Wiley Eastern Ltd.& Ors. v. Indian Institute of Management [61(1996) DLT 281]; British Broadcasting Corporation v British Sky Broadcasting Ltd. [ 21 IPR 503]; Civic Chandran and CS(OS) 2416/2012 Page 39 of 43 Ors. v C. Ammini Amma and Ors. [Manu/KE/0675/1996]; Hindustan Times and others v State of U.P. and Anr. [AIR 2003 SC 250]; Luke Skyywalker v Acuff- Rose Music Inc. [510 U.S. 569]; Copinger and Skone James on Copyright (Sixteenth Edition) by Kevin Garnett, Gillian Davies and Gwilym Harbottle; National Basketball Association and NBA Properties v Motorola, INC 105 F.3d 841]; ICC Developments (International) Ltd.v Arvee Enterprises and Anr. [ 2003 VII AD (Delhi) 405]; Time Warner Entertainment Co., L.P & Ors. v Sudhir Shivram Jadav [148 (2008) DLT 119]; Warner Bros. Entertainment Inc. v Harinder Kohli & Ors. [IA No.9600/2008 in CS(OS) 1607/2008 decided on 22.09.2008]; India TV Independent News Service Pvt. Ltd. & Ors. v. Yashraj Films Pvt.Ltd. [FAO(OS) 583/2011 decided on 21.08.2012]; Hubbard and Anr. v Vosper and Anr.[All England Law Reports (1972) 1 All ER]; Toyota Jidosha Kabushhiki Kaisha v Deepak Mangal and others [2010 (43) PTC 161(Del.)]. However, none of these judgments really apply to the issues involved in this case, except to the extent that duration of the footage which can be used by the defendant. None of these judgments deals with a case of carrying out advertisements at the time the footage is shown as a part of the news bulletin or during special programmes. These judgments do not deal with carrying out advertisements during telecast of the footage vis-à-vis the concept of fair dealing contained in Section 39 and 52 of the Copyright Act, 1957. Therefore, these CS(OS) 2416/2012 Page 40 of 43 judgments have not been much of help to the Court.
26. For the reasons stated hereinabove, the following directions are issued, to be followed by the parties during pendency of this suit:
(i) The duration of the footage of the plaintiffs, whether fresh or archival, by the defendant would be limited to the extent permitted under the „ICC Twenty 20 World Cup, Sri Lanka, 2012‟ News Access Regulations in India. This would include not only the maximum footage, but also the maximum footage per hour of the broadcast, repeat of the footage and the total number of broadcast of such footage, as stipulated in the said guidelines/ regulations.
(ii) The fresh footage of the plaintiff will be delayed by at least 30 minutes, in terms of the regulations of the plaintiffs.
(iii) The defendant shall not air any advertisement immediately before, during or immediately after the footage of the plaintiffs, during the news bulletins, except to the extent indicated in (iv) below.
(iv) If the footage of the plaintiff is shown in the news bulletins, the defendant shall subject to the condition and limitations stipulated herein below, be at liberty to carry advertisements on the tickers, even when the footage, whether fresh or archival, is shown during regular news bulletin provided that such advertisement(s) have not been booked by the defendant to be shown only during reporting of ICC Twenty 20 World Sri Lanka, 2012. The advertisement(s)/logo(s) of CS(OS) 2416/2012 Page 41 of 43 the sponsor(s) of the news bulletin in which footage of the plaintiffs is shown can be carried by the defendant on tickers at the time of reporting of the event, only if the sponsorship is of the news bulletin and the logo and/or advertisement of the sponsor appears on the ticker(s) throughout the news, except when the advertisements of others are being aired.
(v) If advertisements are carried by the defendant immediately before, during or immediately after the special /sponsored programmes on ICC Twenty 20 World Cup 2012 telecasted on its news channel, the footage of the plaintiff will not be shown in the programme(s).
(vi) If the advertisements are carried even on tickers, immediately before, during or immediately after such special/sponsored programmes, the footage of the plaintiff will not be shown in the programme.
(vii) The defendant would not use the footage of the plaintiff if it gives any such title to its special/ sponsored programmes as would indicate an association between the advertiser(s) and the event subject matter of the programme.
(viii) The defendant, while showing the footage whether fresh or archival would paste „courtesy bug‟ acknowledging the plaintiffs, with due prominence, throughout the broadcast of the footage.
(ix) The defendant would use the name „ICC Twenty 20 World Cup, Sri CS(OS) 2416/2012 Page 42 of 43 Lanka, 2012 or a shorter title „ICC World Twenty 20‟ and the event logo while using the footage of the plaintiff, whether during the special programme or during news bulletin.
(x) In case the official logo of the plaintiff is covered by the logo of the defendant when the footage is shown, it would include a courtesy line extended at the bottom or elsewhere on the screen.
(xi) No advertisement would be carried on the footage of the plaintiff.
The application stands disposed of. The observations made and the view taken in this order being prima facie and tentative, would not affect the decision of the suit on merits.
V.K.JAIN, J SEPTEMBER 18, 2012 rd/bg/sn/ks CS(OS) 2416/2012 Page 43 of 43