This article is written by Charul Mishra, a student pursuing B.A.LLB from Symbiosis Law School, Hyderabad and edited by Shoronya Banerjee, from Amity University, Kolkata. In this article, the author has dealt with the need for the laws in regulating the content of online streaming and to prevent the piracy of the content from the online streaming platform.
Online streaming has become very popular nowadays. There are various platforms for online streaming available on the internet, also called video-on-demand streaming platforms, like Netflix, Amazon Prime, Hulu, and Hotstar, etc. These platforms offer online streaming services that enable people to watch a wide range of content such as TV shows, web series, sitcoms, films, documentaries, etc. What separates these live streams from a traditional TV channel or movie theatre is that they encourage the viewer to choose what, where, and when to watch the videos we want. Thus, one can enjoy unrestricted viewing of the content available on these online video sites without seeing a single advertisement. These platforms are subscription-based, to help audiences determine what they want to watch and what they don’t, a person can use the tools from these platforms that provide video content along with rating guides and episode synopsis. But, recently, there have been various discussions which direct that there is a need for laws to govern two elements of the online streaming platforms. First is the regulation of the content available in these inline streaming platforms and second is the protection of content from piracy and duplicity.
Easiest way of accessing content online: online streaming
The web platform has two major methods of accessing media: streaming and progressive downloading. Streaming is the easiest way to access content online, but it’s not the only process. The choice that was available for years before streaming became feasible is incremental uploading. The main distinctions between the two are when we start watching the video, and what happens to the content after we complete watching it. Online streaming can be defined as a method of viewing or watching a video or listening to audio content on an online platform without actually downloading the media files. Online streaming transmits data in a continuous flow which allows the viewers to watch or listen almost immediately without waiting for the download to complete.
Online streaming and its prevention from piracy
The internet and other digital forms of networking and publication have taken the greatest jump in all the technical advances that have been experienced over the past two decades. India has emerged as the world’s second-largest online market with nearly 566 million internet subscribers, 251 million of whom are in rural India. Cell phones with annual monthly data usage of 9.8 GB per user are used by 97 percent of the Indian population. The nation currently operates about 900 satellite TV stations, 6,000 multi-system operators, 60,000 local cable operators, and seven direct-to-home (DTH) service providers.
However, in parallel with the increase of the usage of new media and the development of associated industries, piracy has grown exponentially, resulting in diminishing the fruits of hard work of the copyright owners. Piracy relates to the copying, dissemination, and selling of copyrighted material without authorization of the real owners. Before online streaming services such as Netflix, Amazon Prime, Amazon Music, Hulu, etc. arrived in India, illegal websites and torrents were common among film and TV buffs who had the ‘no-cost’ option for downloading/streaming such content.
Not only has piracy impacted the due earnings of legitimate copyright owners, but it has also brought a huge blow to the general state of the economy, which has seen a lack of jobs and revenue. The lack of ability of copyright owners to recognize the individuals who are infringing their rights due to the omnipresent nature of digital media and the resulting exponential number of pirates is what makes digital piracy so risk-prone and difficult to curb. The Indian government (GOI) and its subsequent authorities have been aware of this technological danger, and numerous steps have been taken at the institutional and policy levels to tackle it. Continuous and relentless developments along with sweeping and far-sighted regulatory and institutional reforms have resulted in improving intellectual property rights (IPRs) regulation, management, and enforcement.
However, copyright infringement regulations tend to have been less successful from the very beginning due to the ease of sharing content over the Internet. For example, music streaming platforms which have boosted music viewing and total revenue from the industry, but have also decreased sales of records and track downloads. Single sales fell by 33 per cent in 2017-2018, while sales of albums dropped by 26 per cent from the previous year. This straight out various concerns which pose a need for enforcement of legislation to control content sharing networks to prevent piracy from happening.
Need for separate legislation for preventing piracy
Although there is copyright law in our country, they are not sufficient for preventing piracy as even after having copyright protection, due to online piracy, the deserving parties do not receive the actual shares of profit and in turn, these shares go to the other streamers who have just pirated the original work. Current copyright law does not even define interactive or online streaming. Also, they do not even share the duties of the online streamers on sharing any work.
As there are no definitive laws in India on online copyright infringement liability of the content of online streaming platforms, this has resulted in a safe harbour being given to internet service providers and in certain cases, absolving them from the liability in the times of infringement. This means that it cannot be held liable if a company were unaware of users downloading, saving, storing, or referencing copyright material on its web. Because of the lack of electronic copyright infringement liability law in India, internet service providers have been allowed to benefit from infringing materials. The supplier can plead confusion, and then delete the content after a lawsuit has been filed by a copyright holder.
Online streaming and morality of its content
Online based streaming has become famous for not only its user-friendly advantages but also for its content. But there have been times when the content of these online streaming platforms have faced controversies. Due to this, such online streaming platforms face several legal challenges in which claims regarding the content depicted by them being morally unacceptable to society. Before getting into the particulars of the topic, it is important to understand when such a problem first emerged. The worst part about this is that there are no laws to restrict such platforms on the contents which create moral controversy.
Numerous laws are covering different domains; but, since these online streaming platforms are a mixture of several domains, in reality, there is no single law that entirely protects them. For example, in various petitions filed against the content of these platforms, the content represented in these channels was claimed to violate the Information Technology Act, 2000 (hereinafter referred to as the ‘IT Act’). Section 79 of the IT Act imposes the burden on the intermediaries to exercise due diligence when conducting their duties under the act and to comply with guidelines as provided by the Central Government. Nevertheless, in the present case, Section 79 of the IT Act does not extend as a blanket rule to all online platforms, as these platforms stream content from third parties and also offer self-generated content.
Furthermore, the Cinematograph Act of 1952 does not refer to a web-based film streaming service because the same along with its laws regulate only the censorship of films in theatres and television, and material viewed online is not protected by the Cinematograph Act. Furthermore, Section 3 of the Cinematographic Act provides for the establishment of a Central Film Certification Board (CBFC) to certify films intended for ‘public exhibition.’ Therefore, the term “public exhibition” has not been specified anywhere in the act or its laws, there is a question of definition concerning whether public exhibition would only involve film available for viewing only in public places such as multiplexor whether it would also include publicly accessible video content for display in public or private.
The Cable Television Network (Regulation) Act, 1995 regulates cable network operators, and Rule 6(n) of the Cable Television Network (Regulation) Rules, 1994 allows them to ensure that CBFC certifies the films available to their viewers. Going by this comparison, it can be assumed that the word “exhibition” of films involves the “exhibition” of movies for public viewing.
Apart from this, the above laws cannot be applied to the online-based platforms. The question remains, however, as different media are governed by various legislative mechanisms, it is not possible to equate Netflix or Amazon Prime with a multiplex as Netflix offers private viewing. We also can not equate Netflix with a cable provider because they have a pre-fixed sequence of content and the user can not choose what and where and where he wants to watch the content, all he can do is to adjust the channel, so he has little control over the content series, while in the case of video-on-demand services the user has full control of what, where, where and when he chooses to see it.
Need for laws to regulate the content presentation by the Online Streaming Platforms
Such video-on-demand cannot be allowed to broadcast unlimited, uncontrolled content in the name of the right to freedom of speech and expression, as even the fundamental right to freedom of speech and expression granted according to Article 19(1)(a) of the Indian Constitution, 1950 is also subject to certain limitations, such as respect for the rights or dignity of others, protection of national security or maintaining foreign relations. The term ‘reasonable restriction’ refers to the standards of dignity within society. The content displayed on such online platforms is definitely in breach of Article 19 of the Indian Constitution, and the said platforms are therefore bound by reasonable restrictions guaranteed under Article 19(2). The constitutional right to trade or business does not apply to the trade or business of goods or equipment that may interfere with the citizens’ life, health, or peace. Also, the content listed on these online platforms shows women in a bad light and merely as an object that also violates their fundamental right to live with dignity as enshrined in Article 21.
In context to the morality of the content presented by the online steamers, it is high time that the government implements strict laws to put a check on the content of these online-based streaming platforms which is not morally acceptable to the society. In the present case, no attempts have been made to control the aforementioned online sites or delete such legally restricted material to end this concern. Currently, this policy indifference presents these forums with yet another chance to promote illegality. Owing to a lack of certifications or regulations, the aforementioned online sites go unregulated and are not adequately controlled due to a lack of rules or laws expressly dealing with these materials.
With context to the prevention of piracy of content of the online streaming platform, although there are various judgments like Star India Pvt. Ltd. v. Akuate Internet Services Pvt. Ltd and Others have provided significant guidelines to prevent privacy from happening, but still, there is a need for stringent legislation that would regulate and prevent such crimes from happening.
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