The recent decade has proven to be greatly successful for the media and entertainment sector, in India due to the rise of video streaming platforms and the internet boom. The immense momentum that these platforms have gathered in the past decade has widened the scope and created newer ways to consume creative content. This revolutionary factor known as Over-The-Top (or ‘OTT’) is a form of media service that provides content over the internet. The moniker “Over-The-Top” reflects the attribute that content is provided over the top of another platform. OTT in today’s fast-paced digital age has opened doors to several opportunities, especially for creative content creators, and has provided a new dimension to what amounts to artistic and creative works in today’s day and age.
Through the course of the paper, it will be highlighted that among the numerous areas which have been impacted due to the rise in OTTs especially OTT TV, one such field that has received beneficial effects is the field of Intellectual Property Rights (or ‘IPR’). This paper aims to study the growth of OTTs, their regulations, and their impact on laws including those on IPRs such as Copyrights, specifically in India.
Discerning the extensive growth of digital media or OTTs it can be inferred that prima facie IPR is deeply interwoven with the concept of OTT. The act in and of itself to make available content on a digital platform requires certain permissions and licenses from its original creator. OTT, hence, cannot exist independent of IPR, since the crux of OTT as a conception is to provide digitally, content that is primarily a result of creators, or producers’ intellect and creativity. Therefore, it becomes imperative to understand the relationship and impact of OTT on IPR and also to further analyze whether the current IPR laws accommodate the new and fast-paced growth of digital media in India.
2. THE OTT TV REVOLUTION
Constant growth in internet penetration and easy access to various gadgets has been one of the rising factors for the growth of OTT platforms. There exist multiple forms of OTT platforms such as OTT messaging, OTT Voice and Video calling, and OTT TV. While multiple forms of OTT prevail, OTT TV has increasingly become popular due to the ease and convenience with which it offers content to the public. OTT TV is a platform that provides high-quality videos that are streamed directly from the provider onto the user’s screen through mobile phones, tablets, Smart TVs, etc. via the Internet. OTT democratizes content accessibility and empowers the consumer manifolds as it bypasses cable, broadcast, and satellite television platforms, the companies that traditionally act as a controller or distributors of such content.
With increased dependency on the internet and its boom more specifically due to the COVID-19 pandemic , online digital entertainment has also increased two-fold owing to this internet regime. During the pandemic, when the public was restricted from traditional modes of offline entertainment, the entertainment offered by OTTs revolutionized the entire media, entertainment sector.
The Boston Consulting Group (BCG) , a credible and global marketing research firm, submitted a report stating that the OTT market in India is expected to become a $5 Billion worth market by 2023. Several reasons and factors are cited for the accelerated growth of OTT in India today. Some mitigating factors include an increase in international trends, ease of access to content, immunity from censorship laws and other media and entertainment regulations, etc. Although the emergence of the COVID-19 pandemic and the ensuing lockdowns negatively impacted several industries, it proved to be greatly beneficial to not only the OTT services provided by some of the mega-giant corporations but also to the telecommunication, media, and entertainment industry as a whole. It provided opportunities for several creators, artists, and producers to present content digitally. For instance, several homegrown video streaming services saw a significant 80% rise in subscriptions to these respective platforms. Further, owing to such a spike in audiences, various OTTs were expected to invest more than Rs.1,900 crore in 2021 on original content created for their OTT exclusively, a 17% rise compared to expenditures in 2019.
Essentially, overtime OTT is slowly taking over the existing television cable and direct broadcast satellite systems. One of the key qualities of OTT platforms is the convenient access to a plethora of content on one single platform at a reasonable price. Moreover, it also provides the consumer with the autonomy to control and manage the content they are viewing. For instance, with cable or direct broadcast satellite television, viewers cannot control and do not possess the freedom to choose the desired content they wish to view at their preferred time. It is all predetermined and scheduled. Furthermore, the array of content provided to them is very limited as compared to content provided on OTT platforms. Therefore, the OTT subscription system has provided consumers with the ease and convenience of watching content of their own free will.
India is a land of diversity and the same reflects in its dynamic OTT market space which includes – 40+ active video OTT players, 15+ active music streaming OTT players, 40+ active podcast players, and beyond. Bundled content refers to a targetable group of videos that can be assembled by use of filters or by selecting individual videos or both on video streaming platforms such as Zee5, Netflix, Voot Select, Disney+Hotstar, etc. Such content is the most preferred consumer choice through the subscription business model.
Owing to this extensive growth and consumer patterns, several businesses viewed this area to be of great economical value leading to an increase in investments and mergers and acquisition deals among media giants. In recent times, major M&A deals occurred solely to acquire the target company’s intangible assets in the form of IPR to increase its assets and value. One such instance, at the global level, could be pointed to the merger agreement entered into between the multinational conglomerate Amazon Inc. and the American media and television company Metro-Goldweyn-Mayer (“MGM”) worth $8.5 billion. This Merger allows Amazon (the acquirer) to merge all intangible assets along with tangible assets owned by MGM (the target company). Being a media and television company the target company holds major Copyright and Trademark assets among other intangibles. This merger allows Amazon to use its intangible assets to increase content on its own video streaming subsidiary called Amazon Prime Video by showcasing most of MGM studio’s content as well as creating newer content under the banner of this company. The aim of this merger is said to boost its existing video streaming services to compete with several video streaming giants such as Netflix and Disney+.
Further, in India, media giants such as Zee and Sony Entertainment are all set to merge to take on global OTT giants. Together, this Sony-Zee merger is expected to make them a formidable player in the OTT space in India. According to data, research, and analytics firm Ampere, SonyLIV and Zee5, the OTT platforms of companies Sony and Zee respectively, are expected to touch 26.2 million subscribers by 2024, once the merger concludes.
Given this major growth of OTT platforms, the rise in consumer preference towards the sector, and the consistent growth of investment in the sector, it is bound to impact existing laws IPR laws, and rules set in place to regulate OTT performance in the country.
3. IMPACT OF OTT ON IPR:
The rise in consumer attention towards OTT TV can be considered a major factor in the growth of the OTT market in India and Globally and as a direct consequence of the growth of IPR in India. The extensive growth and the absence of pre-screening of OTT content gave rise to a need for regulatory rules. In response, the Ministry of Electronics and Information Technology enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Guidelines”). As per this, OTT content must mandatorily comply with the guidelines laid down in the same. Further, if any content on OTT platforms contravenes or violates Article 19(2) of the Indian Constitution then, as per section 69A of the Information and Technology Act and the IT (Blocking Rules), 2009, the government can issue directions to block public access of content through any computer resource, including blocking any objectionable content on OTT platforms as well.
However, despite the existence of regulations, content on OTT platforms are a lot more diverse and is not subject to any strict or rigid censorship laws. OTT platforms, comparatively, provide creators with more freedom and wider creative expression. It is safe to say that it could be one of the major factors for its growth and development. There have been several High Court and Supreme Court Judgements that have supported the freedom of creators and have also supported the nature of fewer censorship requirements to be fulfilled by OTT platforms.
A recent landmark judgment passed by the Kerala High Court recognizes and values the artistic freedom of the filmmaker. It said, “Nobody can dictate a filmmaker to use only decent language in his film and it is his artistic discretion to choose the language within the reasonable restrictions as provided in Article 19(2)”. This established the principle that certain actions in a film will not mandatorily lead to restriction on public exhibition of the film as long as the same is used in the context of the film and each film has to be viewed in its entirety to understand this context. This case also recognizes that censorship requirements are fewer for OTT platforms possibly due to the very nature of this medium whereby content can be viewed only by subscribers, that are well aware of the nature of content they opt to view and make an informed decision based on the description of the content provided on the OTTs, thereby reducing the need for censorship.
At the same time, with the consistent growth of OTT and the exponential growth of the Internet and dependence of individuals on the Internet, Intellectual Property and its scope in India continue to widen and develop. IPR refers to rights provided for the protection of an individual’s intellect and creativity. The ever-adapting intellectual property rights have left a mark on the digital market businesses such as OTT platforms since they mainly deal with the exchange of intellect instead of any physical product. Therefore, due to the rise in Internet and OTT platforms, the growth of Intellectual Property and its laws have also been on the rise.
Although the basic nature of IPR remains the same i.e. protection of persons’ rights and controlling exploitation of innovation and creativity, how such rights are applied and exchanged on different technologies continues to adapt with changing times. With the introduction of OTT, it was noticed by most media companies that their online databases are majorly subject to IPR. IPR to most original works published by platforms are owned by themselves, thereby opening revenue-generating opportunities in the form of future licensing, sale of production rights, etc. However, infringements such as piracy or unlicensed imitation etc., can easily take place due to the absence of any boundaries and regulations on the internet. Since the main aim of IPR concepts, such as copyright and trademarks, is to essentially give the original creators credit for their work laws such as copyrights, trademarks, licenses, etc. are applicable to protect the content creator or owners’ rights. And since content through OTT platforms is bundled in nature and is produced in bulk, this widens the scope of applicability of IPR laws.
Since Copyright protection deals with the protection of the original works of a creator in a tangible medium and Trademarks protect the branding of a company, different OTT platforms might seek protection for several elements separately, thereby gaining wider protection of their works and platforms. These could include elements such as the text, music, video, publicity rights, etc. there would be a requirement for a new media license or a video syncing license and the right to the publicity of those who appear in the content. Furthermore, most OTT streaming platforms also use advertising as a mode for generating revenues and also to promote works that are published on their platforms. Since advertising and media streaming platforms work hand in hand the IP laws concerning advertisements have grown manifold with the growth of advertising adopted by OTT platforms.
It is also imperative to note that the rise in OTT has facilitated the rise in revenue-generating opportunities through IPR within the field. Although IPR has been ever-present in the past, it was also equally hard to keep track of the ownership of such rights. However, now broadcasters commission a show to be produced. When a contract is signed between the broadcaster and the producers, a definite fee is to be paid by the broadcaster and the platform owns IPR for the content, has the licensing right to broadcast it in different languages, and trade it off to any content acquiring platforms. Earlier, the producers failed in monetizing the increment in the reach and revenue offered and had a limited income. Moreover, no one used to own any IPR which further closed avenues for revenue.
In conclusion, since OTT platforms are a lot less regulated compared to offline mediums such as television and films, as mentioned before, OTT platforms find more creators preferring to deal with OTT platforms compared to offline mediums especially due to increased freedom of creative expression. Furthermore, the ease of accessibility of content by consumers has also contributed majorly to the success of such services. Due to the rise in OTT, there has been a significant increase in revenue-generating opportunities, especially through the simultaneous rise in IP laws and the deep involvement of IPR in these platforms.
Cooperation between the government and OTT companies is now important to strike a balance by evolving a system wherein creativity is promoted and yet regulated in a healthy manner. Wherein, the rules will help the OTT market grow steadily and simultaneously not bear off the autonomy of subscribers to make informed choices about the form of content they wish to be exposed to. Instead of creating more blocks, the rules must help facilitate the growth of OTT and along with it create more incentives for the creation of newer IP in the country, helping the nation develop intellectually.
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