The Indian Entertainment Industry
"The Indian media and entertainment industry is one of the fastest growing media industries in the world and is projected to reach USD 100 billion by 2030."
- Mr. Apurva Chandra, Secretary, Ministry of Information and Broadcasting (MIB)
The entertainment industry in India is one of the largest in the world producing approximately 1,500 to 2,000 films each year in over 20 different languages. As of March 2022, the Indian media and entertainment industry is valued at USD 28 billion and it is projected to reach USD 100 billion by the year 2030, growing at a cumulative growth rate of 12 per cent. With this phenomenal growth, the role of Intellectual Property Laws has become more than ever important for the Indian Entertainment Industry.
Age of the NEW: Emergence of OTT platforms in India
An 'over-the-top' (OTT) is a media platform that provides video, movies, series, audios, etc. With theatres being shut due to Covid 19 led Lockdown, OTT platforms like Amazon Prime, Netflix, Hotstar and many others saw a stark rise of 30% in the number of paid subscribers. Earlier, OTT platforms were streaming content which was already released, however in the recent times there is shift in the trend. The OTT platforms are now producing their own content, which includes feature films, documentaries, web series, etc. such as- Made In Heaven, Delhi Crime, Sacred Games, She, Leila, and the like. In India, Amazon Prime Video, Disney+ Hotstar and Netflix dominate the OTT market, followed by other competitors namely, Sony Liv, Voot, etc. As per the PwC's Global Entertainment & Media Outlook 2022-2026, India's OTT Video services are expected to become a Rs 21,031 crore industry in the next four years by 2026, in which Rs 19,973 crore would come from subscription-based services and Rs 1,058 crore from Transactional VOD (video on demand). "It is subscription services that are driving this rapid growth, accounting for 90.5 per cent of revenue in 2021 and set to account for 95 per cent in 2026." With exponential growth of internet and ease of data access, storage and transfer, it has become imperative for the content creators as well as consumers to know about intellectual property rights on such new-age platforms like OTT. OTT content and consumption (viz., user creation, authentication and data storage/usage) leads to convergence of intellectual property laws and information technology laws.
IP Regulation in OTT Platforms
As per prevailing commercial practices, the OTT Platforms like Netflix, Amazon Prime, etc. enter into agreements with production houses for creation of content with exclusive rights to host, broadcast, and distribute over internet or digital media such content. There are two types of intellectual property deals with respect to the content so created and produced through such production houses: (a) licensing deals – where the production houses license out their IP to the broadcaster or an advertising agency to create the finished product and (b) co-production deals - where the production houses work with broadcasters who control what type of content they want to produce and when they want it produced. In the recent times, many of the Indian production houses as well have entered the OTT landscape such as- Red Chillies Entertainment and Dharmatic (i.e. Digital Wing of Dharma Productions) which have struck a long term deal with Netflix for big production projects.
Infringement of OTT content and relevant IP laws in India
A direct infringement of OTT content comes under the purview of Copyright Act, 1957, amounting to Copyright Infringement. Section 2(m) of the Copyright Act defines 'infringing copy'. Sections 26, 27 and 29 of the Act are applicable to define term of copyrights, namely in films, sound recordings, and works of international organization, which are also applicable to the contents posted on OTT platforms. A direct infringement by an OTT service provider is when the content is offered over a platform that could lead to civil and/or criminal liability as enshrined under Section 51 of the Copyright Act- which considers the unauthorized reproduction or deliberate storing of the work as infringements.
Another important statue regulating the content over and functioning of OTT platforms is Information Technology Act, 2000 (the "IT Act"). The IT Act takes into consideration unauthorized distribution of copyrighted content as an offense and makes the intermediaries (including OTT content platforms) responsible with respect to infringing content. The intermediaries/ OTT platforms are required to have set procedures for attending to copyright infringement notices form the right holder and making sure to act as per the guidelines to safeguard, where required, the rights of the copyright holder. After receiving the notice of infringement, the intermediaries are to ensure that no infringing contents remain posted on the OTT platforms as per the Intermediary Rules of 2011.
New guidelines concerning OTT Platforms came into effect from 26-May-2021 by way of Information Technology Rules 2021. Said Rules mandate strict Grievance Redressal Mechanism whereby every Publisher must appoint a Grievance Officer based in India for receiving and redressing grievances and such Officer shall respond to the complaint within 24 hrs. and pass an order or resolve the complaint within 15 days from its receipt.
Way to tackle infringements over OTT Platforms
What can be done once you find an infringing copy of your work on an OTT Platform?
- Cease & Desist Notice / Complaint: In addition to cease and desist notice to opposite/infringing party, the owner of copyright can also address the notice to intermediaries notifying them about infringing content on their OTT platform and asking them to immediately pull down the infringing content from their platform.
- John Doe orders: In cases where the origin of the infringing content is not known, an injunction against unknown/unnamed persons can be obtained by moving a request in form of John Doe Orders from the Hon'ble Courts.
- Dynamic injunctions: injunction orders which allow addition of respondents through administrative process thereby giving more flexibility and speed.
Liability of the Intermediaries in IP Infringement Matters
In matter of Sun TV Network Limited v. Amazon[1], Sun TV sought permanent injunction with respect to its 28 movies (copyrighted content) exhibited by Amazon in its OTT platform. The Hon'bel Madras High Court observed that- "It is germane to point out that the producer shall be the first copyright owner of a cinematography film and the plaintiff (Sun TV) had acquired the rights from such competent person. Naturally they expect they can exploit the rights without any infringement." Order of Interim Injunction was accordingly granted by the Court.
In another case of Jagran Prakashan Limited v. Telegram FZ LLC[2], the Hon'ble Delhi High Court directed the defendants (Telegram) to take down within forty-eight (48) hours certain channels in which the users were reproducing and distributing the copyrighted content of the plaintiff corporation which provides a digital e-paper to its subscribers.
The rise in number of streaming services available on the internet and resultant increase in the content will lead to more occurrences of piracy/ infringement at/by such video streaming services. While it is true that there are certain laws that tackle such infringement and define responsibilities of OTT platforms, it is necessary to detail further the provisions dealing particularly with digital content made available over multiple OTT platforms at times unknown to the rightful owner of the copyrighted subject matter. Clarity specifically in procedure is required and also regarding liability and extent thereof on respective parties involved in such infringement cases. Such steps going forward will ensure that the rights of creators of copyrighted work are protected which will subsequently lead to a decrease in OTT video piracy/infringement. Further, OTT platforms need to be more proactive in identifying whether certain content should be blocked or removed from its channel or not.