OTT AND COPYRIGHT INFRINGEMENT: IN REFERENCE TO INFORMATION TECHNOLOGY RULES 2021

Over-the-top (OTT) platforms have become the preferred choice for entertainment for millions worldwide. These streaming services have revolutionised the entertainment industry by offering a vast array of content, such as movies, series, documentaries, and original productions, at the viewer's convenience. However, the rapid expansion of OTTs has created new challenges, especially concerning copyright infringement and regulatory guidelines, as outlined in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in India.

OTT platforms act as intermediaries that deliver content provided by various creators, hence, they bear significant responsibility for copyright compliance. Copyright infringement occurs when someone uses copyrighted material without authorisation, violating the exclusive rights of the content creator or owner. This issue is more sensitive in the digital realm, where content can be easily duplicated, shared, and exploited without proper authorisation.

PROTECTION UNDER THE COPYRIGHT ACT AND THE IT ACT

While traditional media formats such as film and television have well-defined rules and regulations, Over-The-Top (OTT) content is not subject to any specific legislation or oversight. To remove any OTT content from a platform, one has to rely on already-existing legal mechanisms provided by other laws since there are no regulatory bodies or specific regulations that apply to OTT content. The OTT content, that is targeted for removal, must be deemed unlawful and conform to the relevant law's requirements to be legally deleted or withdrawn from an OTT platform. Moreover, the actions taken must be appropriate and substantially feasible to delist an OTT service provider.

Some of the laws that apply to OTT content include the Information Technology Act of 2002 and the Copyright Act of 1957. Both these laws offer protection against the risk of piracy, which is defined as copyright infringement when someone copies or reproduces another person’s work without that person's consent. Section 2(m) of the Copyright Act of 1957 defines "making an infringing copy" as the act of doing so, while Section 14 of the Copyright Act defines copyright and discusses the exclusive rights that a copyright owner has, such as the ability to reproduce, reproduce, and store works.

The Information Technology Act of 2000, which makes it illegal to transmit copyrighted content online, defines the extent of piracy under Sections 43 and 66. Under Section 79 of the Information Technology Act, intermediaries must uphold their legal responsibilities and ensure that they do not host or publish any content that violates the intellectual property rights of individuals or businesses.

The Rules require OTT platforms to comply with certain obligations, including the following:

As per the Rules, OTT providers must appoint a chief compliance officer who will be held accountable for ensuring compliance with the Guidelines. Having a head of compliance (CCO) is crucial for businesses that aim to create and maintain a robust safety initiative. The CCO will oversee and manage the company's compliance initiatives and ensure that they adhere to all relevant laws, restrictions, and internal guidelines. They may also establish and implement safety guidelines and processes, conduct risk evaluations, monitor compliance with legislation and regulations, provide training, and advise employees on compliance-related matters. Additionally, the CCO may serve as a link between the organization and regulatory authorities to ensure that the organization complies with all regulatory requirements. The appointment of a CCO demonstrates an organization's commitment to compliance and helps establish a culture of compliance within the organization. It also ensures that the organization is proactive in identifying and addressing compliance risks before they become serious issues.

• Compliance with the Code of Ethics: Over-the-top (OTT) platforms must follow the Rules of Engagement, which includes adhering to a moral code of conduct. This code outlines instructions on prohibited material, material classification, and access controls. Ethics are the moral and value-based principles that govern actions and behaviour. For a business to function truthfully, it is required to have a documented set of expectations for its workers to follow. This instils a sense of fairness and justice among the employees, creating an aura of trust and confidence in everyone associated with the company. Stakeholders, including individuals and organizations with an interest in the business, benefit from this code of conduct as it protects the company from legal action and negative media coverage. It also ensures that the company engages in ethical business practices, which upholds the integrity of its interactions with society and preserves its brand.

•  Grievance Redressal Mechanism: The Rules of Engagement require OTT platforms to establish a system for resolving complaints related to content issues. Having a dispute resolution system is a crucial aspect of any administration. An effective and productive grievance redressal process shows that the government is responsible, responsive, and intuitive. For instance, the Ministry of Finance gives priority to resolving public complaints promptly and improving public service productivity in areas such as insurance, financial services, and salaries.

• Compliance with Indian Laws: They mandate that OTT services adhere to all Indian laws, such as the Indian Civil Procedure and the Information Technology Act of 2002, Following its labour laws, India has a stringent framework for ensuring legal fulfilment. Therefore, the Indian authority has merged nineteen labour laws into four Wage Acts (yet to be implemented) and implemented steps that will streamline the submission of returns with regulatory organizations beneath labour laws.

Challenges Faced by OTT Platforms while performing their rights:

The mobile industry faces numerous legal and financial obstacles that give an edge to its competitors. The competition amongst streaming platforms is fierce, with each one striving to earn adequate profits.

IP Rights and Enforcement:

It's common to see people refusing to pay a fee to acquire the rights to view content ethically, especially when they can get the same content for free through illegal channels like uTorrent, which is likely the world's largest app for obtaining copyrighted content illegally, is an example of such a platform. The app enables users to acquire unauthorized content, which is against the law. It's difficult for the authorities to monitor every device in their jurisdiction that's used to access, retain, and distribute such content, and to prosecute violators. Moreover, it's impossible to obtain someone's personal information without sufficient proof or by simply observing their device usage, as this is a basic right that all people possess.

Statutory Contestations:

The purpose of the Information Technology Rules was to establish a fair and progressive institution with equal opportunities, based on moral principles, and a three-tier complaints remedy structure for newspapers and OTT services. However, the IT Rules have created obstacles for digital media and online video platforms in India.

1. Financial and Legal Compliance: Compliance is a major issue for both Over-the-Top (OTT) companies and digital content producers. As content producers have a responsibility to evaluate their content and ensure that it does not violate any laws related to the sovereignty of the Indian subcontinent or the safety of the state, they may pass the burden of ensuring compliance onto those who created the content. This means that creators have to consider each of the enumerated factors of the Code to ensure that their content complies. However, the formulation of issue resolution, the system, the right to file complaints by anyone who believes something defies the Code, and the obligation to maintain frequent legal conformity impose unnecessary compliance costs on OTT providers.
2. Innovative Inspiration: The criteria for assessing messages have become broad and ambiguous, which may stifle free speech and opinion, negatively impact the State's interests, jeopardize India's liberty, and disrupt public safety.
3. Administrative Interdepartmental Group- Rule 14 of the IT Rules grants broad authority to interdepartmental boards, which serve as adjudicatory bodies.
4. Issue Officer- The Commissioner (tier 1) has a limited time to decide the grievance, and an appeal can be made to the interdepartmental panel.
5. Competitive Obstacles- Currently, there are more than 12 streaming websites in India that require a subscription. These websites offer a variety of television shows and movies to viewers. However, viewers have limited availability and funds to subscribe and watch their favourite programs. There are a few challenges that arise with the OTT platforms, which include:

• Many consumers subscribe to several OTT platforms to access a wide range of content. To save money, some consumers are willing to create their own OTT platforms and share them with family and friends on a mutual sharing and receiving basis.
• The viewer's motivation to watch a program is influenced by its content's relevance and historical context.
• OTT services often act as a central hub for content releases, but the high costs associated with maintaining the platform can outweigh the earnings. Collaboration arrangements with content producers can be a way to address this issue and generate more revenue.

Conclusion

In this article, we will discuss how OTT platforms are protected under the Copyright Act and Information Technology Act. We will also mention the IT rules of 2021 and how they have changed the act to regulate the OTT platform. Furthermore, we will discuss the challenges they are facing while implementing these rules. By applying changes to the use of the OTT platform, the owner's rights related to the content they are posting will be protected, and they will also have the protection to license the content.