This piece has been authored by Isha Jagetiya , Institute of Law Nirma University

INTRODUCTION:

In the aftermath of the pandemic and the arrival of a Telecom Network like Jio, a massive chunk of the Indian population has found its way online. The number of people who avail of online video or music streaming services has suddenly increased manifold. The issue of protecting one’s creation or work in this Digital or virtual era has become much more complex with a slurry of new challenges that  existing laws are incapable of dealing with.

The law remains static while the technology has evolved and most of the traditional methods of entertainment are on the verge of extinction today.

We have entered into an era of Digital streaming which is a much faster way to access such content  on one’s  PC (Personal Computer), Laptop, smartphone or Tablets and Kindles. The concept of Streaming allows you to play your file before it even completes downloading and such downloads are stored for a very brief period of time on your device saving much of your storage space as well.

I.  CONTENT DISSEMINATION – THEN AND NOW:

The industry of entertainment has changed drastically over the years. Particularly the Audio-visual fields.

The films began from being shown on  projector screens of white cloths and then transitioned to big cinemas and movie halls. The release of a big film saw hordes of people rushing to buy the ticket on the first day to enjoy watching the movie with hundreds of others. In the past years, films have faced intense competition from online streaming platforms such as  OTT (Over the top) platforms like Netflix, Hotstar, Hulu, Zee5, etc. that saves  the hassle of going outside to buy tickets. Further, these sites provide original movies and series so that there is no scope   for boredom. In case of India, platforms like TVF and Dice Media have become particularly popular by creating  popular web series like Permanent Roommates and What the Folks that are available for free on YouTube. This has resulted in pulling a large part of the erstwhile Cinema going audience away from the movie halls to their smartphones or tablets.

The television industry has also suffered a similar fate. We have almost forgotten the Idiotboxes and switched to lean Smart TVs on which we do not have cable or DTH Cables but subscription of Netflix or Amazon Prime Video. Further, web series have also become  more  Preferable among viewers.

The music Industry has also not remained unaffected as we have switched from the old methods of tape recorders, record players to online platforms like Wynk and Spotify. Nowadays, we hardly see anyone buying a vinyl record or a cassette other than as a hobby or want of collection for vintage items. We also do not sit in front of our computers downloading MP3 files that took painfully long to download. The transition from that wait for download to just a click on the phone for listening music has been very fast.

All these changes have left not just users and creators disoriented but also the lawmakers

II. CURRENT LAW AND ISSUES ASSOSCIATED:

Provisions:

In the Current IP law framework in India the major section that deals with Online platforms is Section 31D of Copyright Act, 1957 along with the Copyright Rules, 2013.  Under this section, any broadcasting organisation that wants to communicate through broadcast or performance of a literary or musical work and sound recording that has already been published must get a statutory licence from the IPAB (Intellectual Property Appellate Board) and pay the copyright owner royalties in advance. These royalties are set by the IPAB and are paid in advance to the owner.

The rules only stipulate that the broadcasting organisations send a notice to the copyright owner stating their intention to broadcast their work, the notice’s only purpose is to inform, not ask for permission. You only need permission from the owner of the copyright to make technical changes to the material.

After the Copyright (Amendment)Act was passed, the Department of Industrial Policy and Promotion (DIPP) responded to concerns raised by industry groups by releasing an Office Memorandum in September 2016. The memo asked if internet broadcasting companies could get statutory licences under S.31 D of the Copyright (Amendment) Act.

The memo urged for a liberal construction of the said section. It was not just meant to include TV and radio stations, but also internet broadcasting agencies. This brought the internet agencies under the purview of section 31D even though there were no express words of “Internet broadcasting” were present in the alleged section itself. [1]

Issues:

1. Licensing Requirements:  Due to lack of being a centralised licensing regime, these platforms often face issues in purchasing the rights of original copyrighted work. Often platforms like Spotify and Wynk seek refuge of section 31D which is a hotly debated section as its intention is only to inform the creator or owner of the use of their work and not permission to use the same. There is a serious lack of rules and regulations for such platforms leaving everything ambiguous and prone to exploitation by these companies.
2. Liability of Platforms: There are no express laws for any infringement of violations done by users while using such platforms. Like on YouTube, the creators upload their own content and may infringe laws in this course. There is no provision for determining the liability as these online platforms have safe harbour under which they are exempt of liability if they are not aware of the users’ actions. Though the new Information Technology Rules of 2021 do put some liability on social media platforms, there is no such rules of like nature for video and music streaming platforms.
3. Illegal Sites: While there are many legitimate online streaming platforms, there are an equal amount, if not more ,of illegal streaming platforms or platforms that conduct piracy and infringement in a daily manner. A very big example of this is a platform like Telegram. Presence of a large number of illegal streaming sites also creates problems for the legitimate streaming platforms.

III. POSSIBLE SOLUTIONS:

1. Immediate change in Laws and Rules:

. We need a concrete and solid legal framework to govern such platforms that does away with such ambiguities. For this purpose, just Rules would not be enough, we will have to bring changes to the Parent Act that is the Copyright Act, 1957 itself.

The law should very clearly define such platforms, make procedure and rules for licensing for them and also determine provisions for imposing liability in case of infringement and violation of laws.

2. Centralised Licensing Regime:

There is a lot of confusion when it comes to licensing requirements of copyrighted work in India. Many countries have Copyright Societies that help in obtaining licenses thus providing a good and simple regime. In India, for obtaining licenses one has to approach several persons or organisations. We propose for a centralised Society that can control all kinds of licenses. Under this central society there can be smaller branches, each of which grants licenses for a particular type of content such as there can be one for music, there can be one for video, etc.

3. A special Body for Inspection and Regulation:

Other than a licensing body we also need a Specialised body that can inspect and regulate such platforms thoroughly. Goven the massive reach of such platforms, it is imminent for Specialised Regulatory bodies to regulate so that the infringement of anyone’s copyright can be minimised and people may take benefit of such platforms without infringing or violating someone’s right over their work.

IV. CONCLUSION:

Through this blog we have looked at what is streaming, how things have changed, issues faced by law and what can be the possible solutions. We can observe that there is a serious lack of legal and procedural framework for these types of platforms in India. While we wish and hope for the law to change, it is also our duty to respect the intellectual rights of artists, musicians, filmmakers, and everyone else who adds to the rich tapestry of online material, whether we are users, creators, or legal enthusiasts. We can help build a digital world where creativity is valued, originality is protected, and artists are properly acknowledged for their work by staying informed, speaking out for moral behaviour, and spreading knowledge about copyright laws. In this digital age where everything moves and evolves very quickly and new ideas keep pushing the limits, how we all understand and implement copyright rules will determine the future of India’s online streaming services.

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[1] Nathishia Rebecca Chandy, ‘Recognition of Online Streaming Platforms as ‘Broadcasting Organisation’ under Section 31d of the Copyright Act, 1957: An Analytical Study’ (2021) 4 Int’l JL Mgmt & Human 1525