We’re pleased to bring you a guest post by Kartik Sharma and Aditya Singh, analysing copyrightability of datasets in light of the recent controversy surrounding NSE’s issuance of C&D notices to many stock gaming apps. Kartik and Aditya are 2nd year students at NLSIU, Bengaluru, and had earlier written for us here and here.
Copyrighting The Uncopyrightable – The NSE Saga
Kartik Sharma and Aditya Singh
In the last week of October, NSE proceeded to issue cease and desist notices to stock gaming apps to prevent them from using its data in their gaming apps that mirror the real-time trading of shares. The legal notices, sent to around half-a-dozen apps, also contain monetary claims for infringement of NSE’s intellectual property rights. This blog aims to explore the legal tenability of this argument and discern whether the data of NSE constitutes a protectable subject matter under the IP regime or not. To dwell into the same, this post will restrict its analysis to the copyrightability of the impugned data as the same is the most popular reserve to protect data and NSE’s officers’ statement that they in particular do not have a problem with genuine educational platforms depicts a digression towards fair use exemption. The piece shall explore (i) the relevant standards of originality in copyright law (ii) the applicability of merger doctrine, and functionality doctrine. This shall bring about the legal inadequacy of the claims raised by NSE.
To aid our analysis, we also visited a few apps falling under the abovementioned category. The same has an interface wherein the dataset contains real listed companies with near real-time prices with deviations of 2-3 rupees (the relevance of this will be stated later) from that of NSE or BSE along with other details such as high, low of various timeframes, opening, closing price points and the price graph. It should also be noted that the other app we visited (3 dots) did not actually display any graph or prices but solely its internal points system. Hence, NSE inadvertently may be penalizing some of these apps for just relying on the prices.
MODICUM OF CREATIVITY
Originality is the theoretical edifice of the copyright regime and a few doctrinal approaches have been propounded to give substance to it. Two of them include the sweat of the brow and the modicum of creativity doctrine. In the Indian case law on copyright, DB Modak clarified the position on the appropriate standard by finding a middle ground between both the standards. Sweat of the brow was considered to be too low of a standard and the ‘creativity’ too high. To claim copyrightability, the work must be a product of the skill and judgment of the author with a modicum of creativity. It should not be a mere exercise of labour or capital. This is in line with the Canadian jurisprudence as well as the famed US ruling in Feist Publications.
To build the forthcoming argument, an analogy is to be drawn between the NSE data and the copy-edited judgments in question in DB Modak. The SC had extended copyright protection only to the headnotes of the judgments since their preparation involved reading through and selecting the apt portions, thus displaying a minimal level of skill and creativity. The rest of the judgment didn’t have sufficient elements to characterize it as anything more than a mere product of labour. The concerned data before us is basically the share prices (opening and closing, high and lows) of real-time listed companies. The data is a function of the market forces of supply and demand and is bereft of any application of creativity, save the labour and capital put into the functioning of the stock exchange. In other words, the data is merely a collection of empirical facts compiled by algorithms. The court in NYMEX v ICE denied copyright on the basis that what the settlement prices were reflecting was in fact economic facts of the world and nothing beyond. In fact, the stock prices of a listed company on NSE is same as that on BSE (difference of 5-10 paise) if the company is listed on both hence even the other details surrounding the stock such as high, low, open, close, graph, etc are almost same.
One may raise a counter-assertion by pointing out the well-recognized copyright truism, “Facts are not copyrightable, but factual compilations/ databases are”. Although this is true, the same protection is contingent on the existence of a modicum of creativity, as discussed previously. The same was also held in Tech Plus Media Private Ltd vs Jyoti Janda where the item in question was a ‘potential subscriber database’, the DHC here relied on DB Modak. Some compilations have been protected in the US because the author exercised subjective judgment and selectivity in choosing the constituting elements. If these apps were to copy the data of indices such as NIFTY BANK, NIFTY AUTO, etc, NSE will have an argument here as the companies are selected on the basis of their market cap and the weighted average of each company may not be the same, plus the threshold of creativity is not very high.
The pertinent issue that NSE raises is that the data these apps access is live and also includes graphs. Another defence which the apps have on this point is the merger doctrine i.e., the subject matter is not copyrightable when there are very few ways of expressing the idea hence, the idea and expression merge. This of course as elucidated in Morrissey v. Procter & Gamble and other such cases is to prevent the creation of monopoly over an idea through the grant of copyrightability. The court in this case also looked at the fact that the item in question did not contain any original creative authorship, a situation similar to the instant case. There are not many ways through which such volume of numbers altering every second can be represented.The fact that the method of representation of stock prices through graphs across all countries proves the same. When the exchange generated prices themselves are economic facts of the world, hence not copyrightable as held in multiple cases such as NYMEX, Dow & Jones v. Board of Chicago, S & P v. Comex, etc the addition of graphs should not make a difference.
An additional countervailing factor that can operate against NSE’s claims is the pure functionality of the NSE data and graphs. Functionality doctrine, as understood in copyright law, withholds protection to subject matter dictated by technical considerations, which means that it solely serves a utilitarian purpose and leaves out no space for creative expression. The graph in question is solely technical and functional i.e., it plainly depicts the change in prices and entails no elements of creativity/ aesthetic addition in its presentation. It is computed to serve a particular function, i.e., representation of the market dynamics of share trade. Also as held in Star Athletica, L.L.C. v. Varsity Brands, the utilitarian function of a useful article should be separable from its aesthetic design as done in the precedence case between the cheerleader costume and the various designs on it. The two elements do not seem to be distinct in the instant case. Although there is sufficient precedence in form of Brompton Cycle, Star Athletica, etc to say that the impugned content is not copyrightable, another pertinent point that arises within this head as held in Dow & Jones was that even if copyright exists, the protection of such utilitarian items is extremely weak and fails to protect the senior especially if there are slight deviations from the protected subject-matter. The reason we mention this is because one of the apps that we visited had a difference of 2-3 rupees in prices and the probability of this being the case with most of the apps is high due to time taken in data transmission.
Through the foregoing examination, we come to the conclusions that firstly, NSE’s exchange generated data doesn’t pass the ‘modicum of creativity’ muster. Secondly, the data and its graphical representation are inextricably linked and thus fall outside copyrightability due to merger doctrine. And lastly, the data in question serves a purely technical function and hence has no space for creative expression, an essential stipulation under copyright regime. While NSE may have a case on the securities front as the value of the points is determined by underlying securities hence qualifying as derivatives as the same can only be traded in recognized stock exchanges, the IPR stars do not seem to be in their favour.