What are the Rules for OTT Platforms in India? || Copyright Infringement ||

How Do OTT Production Deals Work: Impact of IPR :

Entities like Netflix and Amazon Prime enter into agreements with production houses for the production of content, which would ultimately release under the banner of the OTT Platform. A production house is a company that produces audio-visual content for television, radio, film, video games and other multimedia. Production houses do not produce the finished product. They are usually hired by the broadcasting or production company in charge of the project.

There are two types of intellectual property deals with respect to content produced by production houses: licensing and co-production deals. In licensing deals, production houses license out their intellectual property to a broadcaster or an advertising agency to create the finished product. In co-production deals, production houses work with broadcasters who control what type of content they want to produce and when they want it produced. Recently, many Indian production houses have entered the OTT landscape. For instance, Shah Rukh Khan's Red Chillies struck a long term deal with Netflix, producing multiple projects. Dharmatic, the digital wing of Dharma Productions have struck a deal with Netflix as well.

IPR and Enforcement :

A direct infringement of OTT content is considered a copyright infringement pursuant to the Copyright Act. The Act defines an infringing copy under Section 2 (m) and elucidates on the meaning of the right and vests exclusive rights on the creator of the work. Sections 26, 27 and 29 of the Copyright Act, 1957, which defines the term to which such copyright persists to be 60 years for almost all applicable content on OTT platforms. A direct infringement by an OTT service provider is when the content is offered on a platform that could result in civil and criminal liability under Section 51 of the Act, which considers the unauthorized reproduction or deliberate storing of the work as infringements. Moreover, the Act even provides for technological measures for copyright protection.

However, what has to be done once an infringing copy is found on any platform? Often, Cease and Desist notices do the job, making the intermediaries themselves stop posting the concerned content on their or related websites. However, often, platforms like Telegram make it extra difficult to identify infringements in the first place. To identify such websites and prevent them from offering or making available pirated copies, courts have developed effective mechanisms by issuing dynamic injunctions or John Doe orders that prohibit not only the identified websites, unidentified infringers, and also the intermediaries. A John Doe order was issued in the case of, for instance, Taj Television & Anr v Rajan Mandal & Ors, for the protection of Intellectual Property. The Civil Procedure Code read with the Specific Reliefs Act, allows courts to grant such temporary injunctions.

In this respect, the media and broadcasting industries and rights holders have been granted significant relief through dynamic orders to combat infringements. The criteria established by courts to identify rogue websites must be prevented by dynamic, legitimate online platforms that fall under the definition of intermediates and enjoy legal immunity. A ‘Doctrine of Inducement’ was once used against a platform by the US Supreme Court, holding the platform liable for enabling the peer-to-peer transfer of infringing data. However, the bottom line is that India needs to modernize its IP Laws to adapt to these new forms of infringement, since there is no definitive law on online copyright infringements yet, which affects OTT platforms' incentives and revenue derived out of their work, as their labour continues to get stolen.


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