Copyrighting the Un-copyrightable – The NSE Saga

In the last week of October 2022, the NSE issued cease and desist notices to stock gaming apps, prohibiting them from using its data in their gaming apps that mimic real-time share trading. The legal notices, which were sent to approximately a half-dozen apps, also include monetary claims for infringement of NSE's intellectual property rights. This blog post will investigate the legal viability of this argument and determine whether NSE data is a protectable subject matter under the IP regime or not.

To delve into the matter further, this post will limit its analysis to the impugned data's copyright ability, as this is the most commonly used reserve to protect data, and NSE's officers' statement that they, in particular, do not have a problem with genuine educational platforms represents a deviation towards fair use exemption. (Although there are several other non-copyright related legal issues involved in this overall question, they will not be addressed in this blogpost.) The article will investigate I the relevant standards of originality in copyright law, as well as (ii) the applicability of the merger doctrine and the functionality doctrine. This will result in the legal inadequacy of NSE's copyright claims.

The theoretical edifice of the copyright regime is originality, and a few doctrinal approaches have been proposed to give it substance. The sweat of the brow and the modicum of creativity doctrine are two of them. DB Modak clarified the position on the appropriate standard in Indian copyright case law by finding a middle ground between both standards. Sweat of the brow was regarded as too low a standard, while 'creativity' was regarded as too high. To be copyrightable, the work must be the result of the author's skill and judgement, with a dash of creativity. It should not be merely a labor or capital exercise. This is consistent with both Canadian and international law.

CONCLUSION

We conclude from the preceding examination that, first and foremost, NSE's exchange generated data does not meet the ‘modicum of creativity' standard. Second, because the data and its graphical representation are inextricably linked, they are not copyrightable under the merger doctrine. Finally, the data in question serves a purely technical function, leaving no room for creative expression, which is a requirement under the copyright regime. While the NSE may have a case on the securities front because the value of the points is determined by underlying securities, making them derivatives that can only be traded on recognized stock exchanges, the IPR stars do not appear to be in their favor.