As we continue to reel under the pandemic, stuck at our homes owing to rapid virus spread or lockdowns, the only source of solace may be binge-watching your favourite TV series on Netflix. However, most of us might be guilty of downloading the series from a Telegram bot, Google Drive links, or alternative websites which offer these episodes free of cost, knowing very well that they might be infringing copies of the series irrespective of the OTT platform it came from. With technological progress and the advent of the internet, the problem of copyright infringement has multiplied. High demand for such free content has led to an increase in the opportunities for online viewers to access pirated versions of content originally owned by OTT media services. This article will examine the potential for copyright infringement caused by the use of free video content on premium video services such as Netflix, Hulu and Amazon Prime.

The OTT Revolution: Keeping the Industry Going as COVID Continues

Platforms like Netflix and Amazon Prime have revolutionised the entertainment industry, especially during the pandemic as people are shut out from traditional modes of access to entertainment such as theatres, live concerts and so on. OTT platforms have been a growing trend in the entertainment industry in recent years. OTT, or over-the-top, refers to any content distributed via the Internet that is not from a traditional television (cable) or satellite distributor.

Oftentimes, cable and satellite providers offer bundled packages of channels and then charge consumers for these packages. With an OTT service, users can subscribe to individual channels that they want to watch as well as pay for those channels on an individual basis. This would mean that with an OTT service, the consumer could get rid of all of their cable or satellite provider's channels if they wanted to do so. This kind of content gives OTT platforms more visibility and information, allowing them to reap greater economic benefits from content and negotiate better prices. Securing the OTT content is a top priority for platform providers to ensure that their users have a safe and enjoyable experience. Much work is involved in creating video content, and exposure to piracy or abuse of video content can contravene licensing agreements and have a devastating impact on revenue derived from Intellectual Property.

The model of most streaming platforms requires consumers to pay to view content, and as a result, there is a way to provide pirated content on the Internet for free. This has led to peer-to-peer piracy, which allows users to distribute and share digital media acquired illegally. In some cases, software applications that are primarily used for other purposes are used to share and distribute copyrighted material from various OTT platforms. The concept of copyright and intellectual property rights is somewhat abstract for laymen or content providers.

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.

Furthermore, it has to be noted that the Information Technology Act, 2000 considers the unauthorized distribution of copyrighted content as an offence, and adds responsibility on the intermediaries as well, when read with the Intermediary Rules of 2011, to make sure that no infringing content gets posted on their platforms. The draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018, calls upon these platforms to come up with technology-based solutions to identify and stop infringements.

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.