Intellectual property laws, OTT platforms, Amazon Prime, Netflix, Hotstar, IT law, S&A law firms

India’s media and entertainment industry is one of the fastest growing media industries in the world and is expected to reach $100 billion by 2030.”

– Mr. Apurva Chandra, Secretary, Ministry of Information and Broadcasting (MIB)

India’s entertainment industry is one of the largest in the world, producing around 1,500 to 2,000 movies every year in over 20 different languages. In March 2022, the Indian media and entertainment industry was valued at $28 billion and is expected to reach $100 billion by 2030, with a cumulative growth rate of 12%. With this phenomenal growth, the role of intellectual property laws has become more important than ever for the Indian entertainment industry.

Age of the NEW: Emergence of OTT platforms in India

An “over-the-top” (OTT) is a multimedia platform that provides videos, films, series, audios, etc. experienced a strong 30% increase in paid subscribers. Previously, OTT platforms streamed already released content, but lately the trend has changed. OTT platforms now produce their own content, which includes feature films, documentaries, web series, and more. such as Made In Heaven, Delhi Crime, Sacred Games, She, Leila, etc. In India, Amazon Prime Video, Disney+ Hotstar and Netflix dominate the OTT market followed by other competitors i.e. Sony Liv, Voot etc. an industry of Rs 21,031 crore over the next four years by 2026, in which Rs 19,973 crore would come from subscription services and Rs 1,058 crore from transactional VOD (video on demand). “Subscription services are driving this rapid growth, accounting for 90.5% of revenue in 2021 and expected to account for 95% in 2026.” With the exponential growth of the Internet and the ease of accessing, storing and transferring data, it has become imperative for content creators as well as consumers to be aware of the intellectual property rights on these new- age like OTT. OTT content and consumption (to know, user creation, authentication and data storage/use) leads to the convergence of intellectual property laws and information technology laws.

Intellectual Property Regulation on OTT Platforms

In accordance with current business practices, OTT platforms such as Netflix, Amazon Prime, etc. enter into agreements with production houses for the creation of content with exclusive hosting, broadcast and distribution rights on the Internet or on digital media. There are two types of intellectual property agreements with respect to the content so created and produced by these production houses: (a) licensing agreements – where the production houses license their intellectual property to the broadcaster or a advertising to create the finished product and (b) co-production agreements – where production houses work with broadcasters who control what kind of content they want to produce and when they want it produced. In recent times, many Indian production houses have also entered the OTT landscape, such as Red Chillies Entertainment and Dharmatic (i.e. Digital Wing of Dharma Productions) who entered into a long-term deal with Netflix to major production projects.

Violation of OTT content and relevant intellectual property laws in India

Direct infringement of OTT content falls within the jurisdiction of the Copyright Act 1957, which amounts to copyright infringement. Section 2(m) of the Copyright Act defines “infringing copy”. Articles 26, 27 and 29 of the law are applicable to define the duration of copyright, in particular on films, sound recordings and works of international organizations, which also apply to content published on OTT platforms. . A direct infringement by an OTT service provider is when content is offered on a platform which could give rise to civil and/or criminal liability as enshrined in Section 51 of the Copyright Act – which considers unauthorized reproduction or deliberate storage of the work as offenses.

Another important law regulating the content and operation of OTT platforms is the Information Technology Act 2000 (the “IT lawIT law considers unauthorized distribution of copyrighted content to be an offense and makes intermediaries (including OTT content platforms) liable for infringing content. Intermediaries/platforms OTT are required to have established procedures to remedy the copyright infringement.After receiving the notice of infringement, intermediaries must ensure that no infringing content remains published on OTT platforms as under the 2011 interim rules.

New guidelines regarding OTT platforms came into effect from May 26, 2021 through the Information Technology Rules 2021. The said rules impose a strict grievance mechanism whereby each publisher must appoint a grievance officer based in India to receive and redress grievances and this officer must respond to the complaint within 24 hours. and place an order or resolve the complaint within 15 days of receipt.

Way to fight against infringements on OTT platforms

What can you do once you find a counterfeit copy of your work on an OTT platform?

  • Notice of Cease and Desist / Complaint: In addition to the cease and desist notice to the opposing/infringing party, the copyright owner may also issue the notice to intermediaries informing them of the infringing content on their OTT platform and requesting them to immediately remove infringing content from their platform.
  • John Doe orders: In cases where the origin of infringing content is not known, injunctive relief against unknown/anonymous persons may be obtained by moving a claim in the form of John Doe injunctions to honorable courts.
  • Dynamic injunctions: injunction orders that allow the addition of respondents through an administrative process, which provides more flexibility and speed.

Liability of intermediaries for intellectual property infringement

In terms of Sun TV Network Limited v Amazon[1], Sun TV has requested a permanent injunction regarding its 28 films (copyrighted content) released by Amazon on its OTT platform. The Hon’bel Madras High Court observed that- It is pertinent to point out that the producer must be the first copyright holder of a cinematographic film and that the plaintiff (Sun TV) had acquired the rights from this competent person. Naturally, they expect to be able to exploit the rights without any infringement.” An interim injunction order was therefore granted by the Court.

In another case of Jagran Prakashan Limited v Telegram FZ LLC[2], The Honorable Delhi High Court ordered the defendants (Telegram) to remove within forty-eight (48) hours certain channels in which users reproduced and distributed the copyrighted content of the plaintiff company which provides an e -digital paper to its subscribers.

The increase in the number of streaming services available on the Internet and the resulting increase in content will lead to more occurrences of piracy/counterfeiting on/by these video streaming services. While it is true that there are some laws that deal with such offenses and define the responsibilities of OTT platforms, it is necessary to further detail the provisions dealing in particular with digital content made available on several OTT platforms at times unknown to the rightful owner of the subject matter protected by copyright. question. Clarity in particular in the procedure is required and also with regard to the liability and the extent thereof on the respective parties involved in such cases of infringement. Such measures in the future will ensure the protection of the rights of creators of copyrighted works, which will subsequently lead to a decrease in OTT video piracy/infringement. Additionally, OTT platforms need to be more proactive in determining whether certain content should be blocked or removed from their channel or not.

Authors: Shrimant Singh, Partner and Samridh Ahuja, Senior Partner, S&A Law Offices. Views are personal.

[1] OANo.110 of 2021 in CSNo.69 of 2021.

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