By, Prabhdeep Kaur
With the advent of Internet treaties and subsequent incorporation of Digital Rights Management (DRM) provisions in the Indian copyright regime, the challenges faced by digital entertainment sector due to global dissemination of protected works are to be addressed. The support of Indian judiciary in the form of John Doe or Ashok Thakur orders[i] proves that the entertainment industry has been successful in preventing access to websites hosting pirated material. Illegal use of platforms such as Netflix, Amazon Prime, Hotstar etc., has resulted in an increasing number of litigations these days. Nowadays, mainly due to illegal streaming of content at a massive scale, the total market size of pirated content is growing at a rate faster than the entire entertainment sector. It shows that the existing laws fail to appreciate the relation between the availability of curated content through legitimate means and the lack of regulatory means to control the same.
The Push-Based and Pull-Based Services
In India, the spirit of self-regulation can be seen from the recent initiative of the digital entertainment sector in adopting a Code on “Self-Regulation for Online Curated Content Providers” (“OCCP Code”), later renamed as “Digital Curated Content Complaint Council” (“DCCCC”),[ii] having five signatories, namely, Hotstar, Voot, Jio, SonyLiv and Eros. The Code, which is yet to be notified, aims to establish a regime of “self-censorship” of streaming services i.e. curated content, video-on-demand etc. It is of no doubt that the idea of ‘self-regulation’ or ‘self-censorship’ is new to the digital landscape of India where the difference between traditional and modern forms of broadcasting is conveniently forgotten when the question of self-regulation comes into the picture.
It must be noted that there is a difference between “Push” and “Pull” based services of broadcasting. The former describes the traditional method of making the content available to the consumers via cable TV network where the consumer has no choice except to watch the available content. On the other hand, latter depicts the modern way of broadcast ensuring freedom of choice to the consumers to watch the content at such time and place as they want to. The push-based services are termed as “Broadcast”, whereas the pull-based services can be categorised as “Narrowcast”.
Is Self-Regulation Possible: A Comparative Analysis
The fight against piracy is as old as the law of copyright itself. The prevailing laws such as The Copyright Act, 1957, The Information Technology Act, 2000, The Indian Penal Code, 1860 etc., are proof that the Government is not silent about the crimes taking place through online medium. But nowadays, the emerging technology demands much more than the existing laws, like self-regulation in first-world countries. For instance, in Singapore, the laws[iii] on curated content requires the classification of content like offline films prescribing the do’s and don’ts for the service provider, along with the display and ratings of elements in the content.
Similarly, in Australia, the law[iv] governing the OTT sector provides a complaint-based mechanism for its regulation. The Act classifies the content into various categories and thereby restricting access to certain types of content. Even though countries like Indonesia, Kenya, Turkey and Saudi Arabia, have no specific law regulating the online curated content, these platforms are regulated under the existing legal framework therein. In Indonesia, the Ministry of Communication and Information Technology and the Indonesian Broadcasting Corporation deal with such matters. In Kenya, the film certification body[v] ensures that any content which is against the public interest, national security and integrity of the country is not broadcasted to the viewers. In Saudi Arabia, their cyber law is responsible for taking out the online content which is responsible for creating any form of hatred in the country by censoring the internet activities that are prohibited under the law. Similarly, Turkey has a Supreme Council which regulates Video-on-Demand (VOD) services mandating license for broadcasting all forms of on-demand media services in the country.
The Past Experience: BCCC and the Typical Indian Scenario
To regulate broadcasting, the Broadcasting Content Complaints Council (BCCC) was established by the Indian Broadcasting Foundation as a self-regulatory body recognised by the Ministry of Information & Broadcasting for non-news general entertainment channels. So far, BCCC has acted on 8573 complaints related to the content of television programmes and 7156 complaints of a generic nature.[vi] Apart from this, various orders and advisories are issued by BCCC from time to time.
Recently, a petition was filed by Justice for Rights Foundation[vii] for seeking guidelines to regulate the uncertified and restricted content. The main allegation was that the content shown on platforms such as Netflix, Amazon Prime, Hotstar etc., violate the provisions of the Indian Penal Code, 1860, Information Technology Act, 2000 and the Indecent Representation of Women (Prohibition) Act, 1986 etc., contending that Section 79 of the Information Technology Act, 2000 cannot be applied to all forms of content available online. The Apex Court issued notices to the respondents and the matter is sub judice before the Hon’ble Supreme Court of India.
The self-regulatory Code or the DCCCC has only five signatories until now, despite multiple rounds of deliberations between them. OTT players including Amazon, Zee, MX Player, Netflix, Alt Balaji and Arre are of the view that there is no need to have DCCCC as it is quite similar to BCCC. They argue that the present dispute redressal mechanism is adequate and the same cannot be adopted by the OTT players due to the existing inherent differences between the two. Thus, the failure to arrive at a consensus might lead the Government to step into the online domain of content regulation. But the question is whether there is a need for the Government to interfere when the five major players with 70% of market share in the OTT sector are volunteering to self-regulate?
[i] The John Doe orders are used as a tool for insisting the ISPs to block entire websites suspected to be providing access to pirated content online, which many times, affects the legitimate internet users.
[ii] The DCCCC was signed on 5th February 2020 during India Digital Summit held at The Lalit, New Delhi.
[iii] Infocomm Media Development Authority issued a Code of Practices for OTT and Video-on-Demand services.
[iv] The Broadcasting Services Act, 1992.
[v] Kenya Film Certification Body.
[vi] As per the data available on https://www.ibfindia.com/bccc-decisions, visited on 14.04.2020 at 22:05 pm. This is the summary of total complaints received by BCCC from 1 September 207 to 31 October 2019. The total number of complaints being 28,303 out of which 11917 were out of scope and 657 were incomplete complaints.
[vii] Justice for Rights Foundation v. Union of India, Special Leave Petition (Civil) No. 10937/2019.