Internet Broadcasting: Section 31D of the Copyright Act, 1957

Posted on December 11, 2019November 1, 2020 by Tech Law Forum @ NALSAR

This post has been authored by Anamika Kundu, a fourth year student at West Bengal University of Juridical Sciences (WBNUJS), Kolkata. It discusses Section 31D of the Copyright Act (put year), introduced in the 2012 Amendment.

With the advent of smartphones and numerous interactive mobile applications, listening to music through apps have become a common phenomenon across the world. However, this has created a number of issues pertaining to intellectual property in various jurisdictions including India. Section 31D of the Copyright Act was inserted through the Amendment of 2012. The provision essentially deals with statutory licensing for radio and television broadcasting of literary and musical works as well as sound recordings. Broadcasters are required to pay royalties to the copyright owner, at a rate fixed by the Copyright Board. A broadcaster wishing to communicate published work should do so by notifying copyright holders in advance. This notice includes information such as the broadcast content’s length and coverage region. Because of the restrictions placed on parties from entering into commercial negotiations to determine royalty rates, there has been huge criticism of this provision. Moreover, the owners of copyrights too are not given any mechanism to negotiate the terms of royalty with broadcasting agencies, which appears to be in violation of Article 19(1)(g) of the Indian Constitution.

Emergence of OTT Market in India: Regulatory and Censorship Issues

Posted on September 27, 2019 by Tech Law Forum NALSAR

This post has been authored by Gaurav Kumar, a 3rd year student at Dr. Ram Manhar Lohiya National Law University (RMLNLU), Lucknow. He is also a Contributing Editor at the RMLNLU Arbitration Law Blog.

The media industry in recent times is witnessing a revolution when it comes to censorship of streaming content. As compared to theatres it has become comparatively much easier for the web industry to dodge any moral scrutiny when releasing its work. While the release of the Narendra Modi biopic during the 2019 Lok Sabha Elections caused significant controversy, a web series on the same subject was allowed to air without any issues, though it was later removed by the Election Commission for having violated the Model Code of Conduct.

There have been many instances where the content of a web series has been objected to for promoting vulgarity, violence and attacking political and religious sentiments. The Delhi HC recently witnessed a PIL filed by an NGO called Justice for Rights Foundation seeking framing of guidelines to regulate the functioning of online media streaming platforms such as Netflix, Amazon and others alleging that they show unregulated, uncertified, and inappropriate content. However, the current situation indicates that content produced by such platforms continues to be outside the purview of censorship laws, thereby requiring a regulatory mechanism to balance out the conflicting views of the government, attempting to play a watchkeeping role and the advocates of creative and artistic freedom.

What are OTT platforms?

“Over-the-top (OTT)” is the buzz-word for services carried over networks that deliver value to customers without the involvement of a carrier service provider in the planning, selling, provisioning and servicing aspects. Essentially, the term refers to providing content over the internet unlike traditional media such as radio and cable TV.

The entertainment industry in recent times has gradually moved towards releasing content on streaming platforms such as Netflix and Amazon Prime. This is due to consumer preferences as expressed in a survey report by Mint and YouGov, which reveals millennials’ preference for online streaming as against cable TV. Another finding by Velocity MR expects the audience movement to reach 80% following the implementation of the new tariff regime for pay-television by TRAI, and the positive responses to series like Sacred Games and Mirzapur from critics and audience shows that quality of content is the key factor influencing the move to streaming services.

Considering its increasing popularity it becomes important to understand OTT with an Indian perspective. In 2015, amid the burning debates of net neutrality, TRAI floated a Consultation Paper On Regulatory Framework for Over-the-top (OTT) services to “analyze the implications of the growth of OTTs”. In this paper it defined the term “OTT provider” as a “service provider which offers Information and Communication Technology (ICT) services but does not operate a network or lease capacity from a network operator.”. Instead, such providers rely on global internet and access network speeds ( to reach the user, thereby going “over-the-top” of a service provider’s network. Based on the kind of service they provide, there are three types of OTT apps:

Messaging and voice services;
Application ecosystems, linked to social networks, e-commerce; and
Video/audio content.

In November, 2018, TRAI came out with another consultation paper considering a “significant increase in adoption and usage” since its last paper. In order to bring clarity with regard to the understanding of OTT, chapter 2 of this Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services discussed the definitions adopted for OTT in various jurisdictions. However, it failed to formulate a definition due to the lack of consensus at the global level. Moreover, the earlier definition of the 2015-Consultation paper, which has been reiterated in 2018, also appears to lose context because it was more oriented towards the telecom service providers.

TRAI’s approach while discussing OTT services has been to restrict itself to the telecom industry so as to address their complaints regarding interference by OTT services in the domain traditionally reserved for telecom service providers. Even though it includes “video content” as its third category, a lack of clarity for defining web series within the ambit of OTT in India is evident which explains the absence of a regulatory mechanism for the same.

Differences between OTT platforms and conventional media

Conventional media vests the broadcaster with the discretion to air particular content. The viewer in this case involves all age groups and classes who have no control over the content being broadcasted, as a result of which governmental authorities are in charge of determining whether particular content is suitable for being shown to the public. However, the emergence of streaming has enabled a switch to a more personalized platform that caters to individual consumers enabling them to decide for themselves own what they wish to watch, which completely removes the role of government discretion and intervention.

Although there exist rules and restrictions to regulate pay-television operators, they fail to put any checks and balances on the newly emerged online streaming platforms for the significant differences in their structure and technology. The individualized viewing experience that has come up with the OTT media channels has clearly reduced the amount of surveillance, any existing regulatory bodies could have, over these platforms.

Can OTT platforms be regulated using existing laws?

The censorship of films in India is governed by the Cinematograph Act of 1952, which lays down certain categories in order to certify the films which are to be exhibited. Cable Broadcast is governed by the Cable Television Networks (Regulation) Act, 1995 and Cable Television Networks Rules, 1994. The Cable TV rules explicitly lays down the program and advertising codes that need to be followed in every broadcast.

Although it can be argued that that online streaming of content can be treated like cable broadcast, this would fail to comply with the legal test when it comes to application of the statute to streaming platforms. Certification for cable television does not require a separate mechanism but rather is done by the Central Board of Film Certification itself, and the cable TV rules restrict any program from being carried over cable if it is in contravention of the provisions – specifically Rule 6(n) of the Cable TV Rules – of the Cinematograph Act.

The problem here arises when defining the category within which web series will fall under the existing laws. Under the Cable TV Act, cable service means “the transmission by cables of programs including re-transmission by cables of any broadcast television signals.”[1] Cable television network is defined as “any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers.”[2] However, the mode of transmission for OTT platforms is substantially different insofar as the content travels through Internet service providers which are difficult to regulate given their expanding nature. This makes the existing broadcasting laws inapplicable to OTT services.

The future of the OTT market

Censorship has always prevailed in the Indian television and cinema industry. Despite accusation of moral policing the CBFC has continued to censor moves to bring them in line with its understanding of public morality. This involves issues of free speech and expression which has seen the courts get involved in these matters, adjudicating upon directions issued by the CBFC in various instances.

TRAI is presently assessing a consultation process to construct a framework to regulate online video streaming platforms like Netflix, Amazon Prime and Hotstar, etc. on requests made by some of the stakeholders of the film industry. Some major tycoons of the industry such as Netflix, Hotstar, Jio, Voot, Zee5, Arre, SonyLIV, ALT Balaji and Eros Now signed a self-censorship code that prohibits the over-the top (OTT) online video platforms from showing certain kinds of content and sets up a redressal mechanism for customer complaints. However, Amazon declined to sign this code, along with Facebook and Google, stating that the current rules are adequate.

Considering the fact that the OTT media industry is increasing rapidly, sooner or later it will require a regulatory body. Portals like Netflix are not even India-run, which furthers the socio-political pressure to scrutinize western content on the government. Moreover, the spread of this industry to the vulnerable group will always remain a concern. Another problem that might come up with time could be of regulating the prices of the services as seen recently with the Cable TV. This may, in fact, lead to conflicts between this emerging online streaming industry and the pre-existing cable TV industry. The courts are already being approached, against the violent and obscene content of some of the series, indicating the need of immediate attention of the legislature to take appropriate steps. The OTT-boom in the Indian entertainment market has certainly revolutionized the viewing experience but it has posed many questions and loopholes that need to be addressed in the near future.

[1] Section 2(b), Cable Television Networks (Regulation) Act, 1995.

[2] Section 2(c), Cable Television Networks (Regulation) Act, 1995.

Is Embedding a YouTube Video Legal?

Posted on August 17, 2019August 15, 2019 by Tech Law Forum @ NALSAR

This piece has been authored by Jubin Jay, a final year student at National Law University, Odisha (NLUO).

A lot of people use YouTube videos to enhance their online articles or webpages. Some provide a regular link to the YouTube video while some provide with an embedded link of the same. While embedding, the video itself appears on the webpage and the user is not redirected to YouTube, in contrast to the previous case, where it only appeared as a link. Now, this is problematic because someone else’s video appears on one’s own webpage. A lot of people argue that this is similar to using someone else’s work for your gain without their permission, amounting to a copyright violation. However, there is ambiguity and a lot of questions are yet to be answered in such cases to prove an infringement. So, the broader question remains, is embedding a YouTube video legal?

Section 6 (c) of YouTube’s official terms of service reads:

“by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the service and YouTube’s (and it’s successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the service and under these Terms of Service.”

The most significant part in the aforementioned terms is that the owner of the video grants every YouTube user a license to access his content, and to use, reproduce, distribute, display, and perform such content as permitted through the functionality of YouTube and its terms of service. In other words, when any owner uploads his video, he has an option to either enable or disable embedding, and since by choosing to leave it enabled, he grants the user a limited license to embed the video.

Based on the Terms of Service as discussed above, one can ideally conclude that if there is an option in the video to embed, then there is nothing illegal in embedding such a video. However, the phenomena of embedding too comes with some conditions and restrictions attached to it. Section 4 (f) of the Terms of Service states, “If you use the Embeddable Player on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the YouTube website.”

Put simply, an embeddable player is made available on one’s webpage by inserting a code to a website, linking to a video that’s hosted at another location, and surfacing a video player without using any resources from the website itself. However, post this if there is any modification made to the embeddable player as had been generated, Section 4 (f) of the Terms of Service will be attracted. Such conditions and restrictions attached to embedding, can be better understood in light of the observations made by the courts of U.S. and EU in the cases discussed below.

In Flava Works, Inc. v. Gunter the Seventh Circuit Appellate District faced a situation where members of an adult site were listing videos from the paid area of the site on a separate social media bookmarking site. The bookmarking site would then create a video preview with the embedded code. The Court however found that no copy was being made by the social media bookmarking site, thereby resulting in the termination of the infringement claim. Put more succinctly; merely embedding the video on your site does not give rise to liability.

Further, in Perfect 10 v. Amazon the Ninth Circuit made it clear that in situations where just in-line links are concerned, there is absolutely no direct copyright infringement liability.

The ECJ however brought a new dimension to the question of infringement. In BestWater International GmbH v Michael Mebes it was held that that as long as the embedding doesn’t make the video available to new audiences, there is no infringement. In this case, the water filter ad in question had already been available to the entire internet on YouTube, so the court observed that merely embedding it didn’t make it available to any new audiences that previously didn’t have access to it. In conclusion, it does not constitute a public communication within the meaning of Article 3 (1) of the Information Society Directive as it does not appeal to a new public.

However, all of the above cases fail to address a situation when there is embedding of a video which is already infringing. Could this amount to contributory infringement by aiding and abetting?

Judge Posner in the Flava Works Case observes, “myVidster (the defendant) is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer. If myVidster encouraged or induced that party to upload the infringing video, it would be a contributory infringer to that infringement. But users of myVidster who thereafter merely stream that infringing video are not infringers of the reproduction or distribution rights since they have made no copies.”

The observation made above does seem satisfactory to an extent, however, is very situational in nature as there was no evidence that someone actually made a copy using the link provided. Had users copied the infringing video using the link, the observation made by Judge Posner could have been different. To conclude, proving infringement in cases where a YouTube video has been embedded will depend, for the most part, on the factual situation concerned and will vary from case to case. As technology keeps evolving with time, there can never be a strait jacket formula for proving infringement. In any event, with regard to the question we have raised presently, yes, embedding a YouTube video is legal, as long as the video being embedded is not an infringing video in itself.

Article 13 of the EU Copyright Directive: A license to gag freedom of expression globally?

Posted on August 9, 2019August 4, 2019 by Tech Law Forum @ NALSAR

The following post has been authored by Bhavik Shukla, a fifth year student at National Law Institute University (NLIU) Bhopal. He is deeply interested in Intellectual Property Rights (IPR) law and Technology law. In this post, he examines the potential chilling effect of the EU Copyright Directive.

Freedom of speech and expression is the bellwether of the European Union (“EU”) Member States; so much so that its censorship will be the death of the most coveted human right. Europe possesses the strongest and the most institutionally developed structure of freedom of expression through the European Convention on Human Rights (“ECHR”). In 1976, the ECHR had observed in Handyside v. United Kingdom that a “democratic society” could not exist without pluralism, tolerance and broadmindedness. However, the recently adopted EU Copyright Directive in the Digital Single Market (“Copyright Directive”) seeks to alter this fundamental postulate of the European society by introducing Article 13 to the fore. Through this post, I intend to deal with the contentious aspect of Article 13 of the Copyright Directive, limited merely to its chilling impact on the freedom of expression. Subsequently, I shall elaborate on how the Copyright Directive possesses the ability to affect censorship globally.

Collateral censorship: Panacea for internet-related issues in the EU

The adoption of Article 13 of the Copyright Directive hints towards the EU’s implementation of a collateral censorship-based model. Collateral censorship occurs when a state holds one private party, “A” liable for the speech of another private party, “B”. The problem with such model is that it vests the power to censor content primarily in a private party, namely “A” in this case. The implementation of this model is known to have an adverse effect on the freedom of speech, and the adoption of the Copyright Directive has contributed towards producing such an effect.

The Copyright Directive envisages a new concept of online content sharing service providers (“service providers”), which refers to a “provider… whose main purpose is to store and give access to the public to significant amount of protected subject-matter uploaded by its users…” Article 13(1) of the Copyright Directive states that such service providers shall perform an act of “communication to the public” as per the provisions of the Infosoc Directive. Further, Article 13(2a) provides that service providers shall ensure that “unauthorized protected works” shall not be made available. However, this Article also places service providers under an obligation to provide access to “non-infringing works” or “other protected subject matter”, including those covered by exceptions or limitations to copyright. The Copyright Directive’s scheme of collateral censorship is evident from the functions entrusted to the service providers, wherein they are expected to purge their networks and websites of unauthorized content transmitted or uploaded by third parties. A failure to do so would expose service providers to liability for infringement of the content owner’s right to communication to the public, as provided in the Infosoc Directive.

The implementation of a collateral censorship model will serve as a conduit to crackdown on the freedom of expression. The reason for the same emanates from the existence of certain content which necessarily falls within the grey area between legality and illegality. Stellar examples of this content are memes and parodies. It is primarily in respect of such content that the problems related to censorship may arise. To bolster this argument, consider Facebook, the social media website which boasts 1.49 billion daily active users. As per an official report in 2013, users were uploading 350 million photos a day, the number has risen exponentially today. When intermediaries like Facebook are faced with implementation of the Copyright Directive, it will necessarily require them to employ automated detecting mechanisms for flagging or detecting infringing material, due to the sheer volume of data being uploaded or transmitted. The accuracy of such software in detecting infringing content has been the major point of contention towards its implementation. Even though content like memes and parodies may be flagged as infringing by such software, automated blocking of content is prohibited under Article 13(3) of the Copyright Directive. This brings up the question of human review of such purportedly infringing content. In this regard, first, it is impossible for any human agency to review large tracts of data even after filtration by an automatic system. Second, in case such content is successfully reviewed somehow, a human agent may not be able to correctly decide the nature of such content with respect to its legality.

This scenario shall compel the service providers to resort to taking down the scapegoats of content, memes and parodies, which may even remotely expose them to liability. Such actions of the service providers will certainly censor freedom of expression. Another problem arising from this framework is that of adversely affecting net neutrality. Entrusting service providers with blocking access to content may lead to indiscriminate blocking of certain type of content.

Though the Copyright Directive provides certain safeguards in this regard, they are latent and ineffective. For example, consider access to a “complaints and redress mechanism” provided by Article 13(2b) of the Copyright Directive. This mechanism offers a latent recourse after the actual takedown or blocking of access to certain content. This is problematic because the users are either oblivious to/ unaware of such mechanisms being in place, do not have the requisite time and resources to prove the legality of content or are just fed up of such repeated takedowns. An easy way to understand these concerns is through YouTube’s current unjustified takedown of content, which puts the content owners under the same burdens as expressed above. Regardless of the reason for inaction by the content owners, censorship is the effect.

The EU Copyright Directive’s tryst with the world

John Perry Barlow had stated in his Declaration of the Independence of Cyberspace that “Cyberspace does not lie within your borders”. This statement is true to a large extent. Cyberspace and the internet does not lie in any country’s border, rather its existence is cross-border. Does this mean that the law in the EU affects the content we view in India? It certainly does!

The General Data Protection Regulation (“GDPR”) applies to countries beyond the EU. The global effect of the Copyright Directive is similar, as service providers do not distinguish European services from those of the rest of the world. It only makes sense for the websites in this situation to adopt a mechanism which applies unconditionally to each user regardless of his/ her location. This is the same line of reasoning which was adopted by service providers in order to review user and privacy policies in every country on the introduction of the GDPR. Thus, the adoption of these stringent norms by service providers in all countries alike due to the omnipresence of internet-based applications may lead to a global censorship motivated by European norms.

The UN Special Rapporteur had envisaged that Article 13 would have a chilling effect on the freedom of expression globally. Subsequent to the Directive’s adoption, the Polish government protested against its applicability before the CJEU on the ground that it would lead to unwarranted censorship. Such action is likely to be followed by dissenters of the Copyright Directive, namely Italy, Finland, Luxembourg and the Netherlands. In light of this fierce united front, hope hinges on these countries to prevent the implementation of censoring laws across the world.

Law Commission Media Law Consultation – Panel V, Social Media

Posted on October 1, 2014February 21, 2023 by Tech Law Forum @ NALSAR

(Image Source: https://flic.kr/p/e5wZ3t)

The following is a post by Aman Gupta, a fourth year student at NUJS, covering the fifth panel of the Law Commission’s Media Law Consultation. Aman is currently the Director of the NUJS Society of International Law and Policy, and his areas of interest include Sports Law and Media Law. This post brings forward some very interesting ideas about Social Media Regulation in India, which we will be following up on in future posts.

The Law Commission of India hosted a two day consultation process on issues concerning Media Law in New Delhi on the 27^th and 28^th of September. The fifth panel of the event dealt with the controversial topic of ‘Social Media’ with regard to Section 66A of the Information and Technology Act (IT Act). The consultation was attended by journalists, academics and students, along with the owners of various websites that have been affected by the application of the provisions of the IT Act.

Law Commission Media Law Consultation – Panel I, Self Regulation v. Statutory Regulation

Posted on September 28, 2014 by Tech Law Forum @ NALSAR

(Image Source: https://flic.kr/p/hzrA2W)

The following is a post by Shashank Singh, a third year student at NUJS, covering the first panel of the Law Commission’s ongoing Media Law Consultation, Self-Regulation v. Structural Regulation. Shashank currently serves as Associate Editor for the NUJS Law Review, and his areas of interest include Constitutional Law, Media Law and IPR.

The Law Commission of India is currently hosting a two day consultation process on issues concerning media law. This comes in the backdrop of the TRAI’s Recommendations on Ownership of Media released on August 12, 2014. The first panel looked at the much debated topic of Self Regulation v. Structural Regulation. The consultation was attended by journalists, academics and students. Ironically, the notable absence in the entire consultation process were the ‘owners’ who would be most effected from the outcome of any future binding regulation.

This panel consisted of Justice R.V. Raveendran, N. Ram, Ravish Kumar and Vanita Kohli-Khandekar. The panel was moderated by S. Varadrajan.