By Nikhil Krishnamurthy, IANS
Over the past few days, a major controversy has erupted over the terms and conditions set by the Indian Premier League (IPL), particularly with reference to the prohibition on use of photographs taken by media organizations at sporting events hosted by the IPL.
Various media organizations such as the Editors’ Guild of India (EGI) the Sports Journalists’ Federation of India (SJFI) and the Indian Newspaper Society (INS) had objected to the terms of the IPL following which the IPL had assured the media organizations that its terms would be revised to address their concerns.
Under its revised terms and conditions for media accreditation made available on April 9, 2008, the IPL has reportedly prohibited pictures taken by newspapers or news agencies to be used online (on the internet) or syndicated.
The IPL has also reportedly imposed a limit of six photographs which can be uploaded by a newspaper on to its own website. The IPL has also demanded that newspapers and news agencies make available to the IPL “for use and reproduction, free of charge, worldwide and without limit in time” all photographs and images requested.
It is really the last condition listed above which gives a key as to the ownership issue in the photographs. In essence, the IPL has recognized that copyright in photos taken by media organizations is owned by such media organizations and is therefore seeking a royalty-free licence to use these photos.
The question is if the IPL acknowledges the media organization to be the owner of copyright, is it entitled to restrict the media organization from exercising its copyrights at all?
For the purpose of clarity, I will set out a few simple rules of copyright on the issue of ownership of copyright in photographs.
As a general principle, the ownership of copyright in a photograph vests in the person taking the photograph (the photographer).
If however, the photographer is employed by a newspaper, magazine or similar periodical and takes the photograph in the course of his employment, then the employer is the owner of copyright for the purpose of publication in the newspaper, magazine or similar periodical. Nothing prevents such newspaper or magazine or periodical from having an online (internet) edition. The photographer is the owner of copyright in the photograph in all other respects.
There may be an agreement to the contrary that the newspaper or magazine owns all copyright in the photograph.
In another instance, if the photographer is a freelance photographer and has been commissioned on payment by someone to take a photograph, then that someone (the commissioner), in the absence of any contrary agreement, is the owner of all copyright in the photograph.
If the photograph is taken by a photographer in the course of his employment, then the employer, in the absence of any agreement to the contrary, is the owner of all copyright in the photograph.
If the photograph is taken by or under the direction of any corporate body, the corporate body will be the owner of copyright, in the absence of any agreement to the contrary.
Therefore copyright in photographs taken by journalists employed by or commissioned by newspapers, magazines or other persons or corporate bodies, lies with the respective newspaper, magazine, person or corporate body.
Ownership of copyright gives the media organization the rights to reproduce the
photograph in any form, communicate it to the public (i.e., make it available for being seen by any means of display, including on the internet), or issue copies of the photographs.
Therefore the owners of copyright could publish their photographs in physical form (i.e, newspapers or magazines) or in non-physical form (i.e., television/internet) without any copyright restrictions from the IPL, which admits that it is not the copyright owner.
Therefore, the question of restricting publication to newspapers and not being able to upload more than six photos or the restriction on syndication or online use is against the express provisions of the Copyright Act and such terms will have to be deleted from the terms and conditions of the IPL.
Media organizations may also be interested to note that they can make use of photographs that do not belong to them. If for example there are photos published by the Indian Premier League which media organizations and other persons want to use for the purpose of reporting the sporting events certain fair use provisions allow such use.
Indian copyright law allows the use of someone else’s photographs for the purpose of reporting current events in a newspaper, magazine or similar periodical, or by broadcast, which covers any communication to the public by wireless or wired diffusion. This would include use of the photographs on the Internet as well.
Therefore, media organizations and other persons may fairly use someone else’s photographs for the purpose of reporting current events in physical and electronic media. So if the IPL were to release photos on its website after a cricket match organized by it, these could be reproduced by others for the purpose of reporting the event.
What’s more, excerpts of a broadcast may also be used in the reporting of current events without infringing the broadcast reproduction right under Indian law.
Of course, if the IPL isn’t even going to allow media photographers into the sporting venue, or give them accreditation unless they agree to its terms, then media organizations will either have to take the benefit of the fair use provisions provided by law and use the photographs released by the IPL for their reporting, or collectively decide how best they want to deal with the IPL and its sporting events. Boycotting their games would be a good
place to start.
(Nikhil Krishnamurthy is an attorney specializing in entertainment and copyright law. He can be contacted [email protected])