Royalties for Recordings  are a Live Issue

Royalties for Recordings are a Live Issue

Songs are made of multiple layers, from music composition, lyrics, and vocal performances to audio production, mixing, and mastering. While this seems simple, complications arise in determining the royalties owed to the contributors to each of these layers. The complications are increased because of the lack of legal clarity over the rights of owners, such as music labels and publishers, authors, composers, and singers to receive royalties.

Many will be familiar with the issue of royalties payable to the authors of lyrics and composers of music, but another debate surrounds singers receiving royalties from the use of their vocal performances. The first and basic question is what are the rights that singers and other performers have in their performances. This arises because a recorded or live performance is not a work enjoying copyright protection. Sections 2(q), 2(qq), and 2(z) of the Copyright Act, 1957 (act), as read with section 14 of the act are clear. A singer is entitled to performers’ rights and moral rights instead of copyright. Under sections 38, 38A and 38B of the act, performers’ rights mirror the protection afforded by copyright, but enjoy only weaker neighboring rights of copyright.

By definition (under the act), performers’ rights apply only to live performances. Once the performance is incorporated into a sound recording or an audio-visual work, it is no longer a live performance. It is clear, therefore, that a performer is entitled to any fee agreed for their performance but not to royalties for the playing of any recording of that performance. However, in Neha Bhasin v Anand Raj Anand, the High Court of Delhi stated that “Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer then the performer’s right is infringed.” This opinion did not determine the outcome of the case, although singers are relying on it in cases currently before the Delhi High Court.

Even if performers are entitled to royalties, how they may receive such payments is also unclear. Section 38A of the act provides that once a performer has consented to incorporating their performance in a film, they cannot object to the use, by a producer, of their performer’s rights. This is consistent with the definition of a performance being limited to a live performance.

The proviso to section 38A of the act states that a performer shall be entitled to receive royalties where performances are made for commercial use. Commercial use is undefined. This gap is argued to be rectified through the Copyright Rules, 2013, despite rule-making power not extending to inserting interpretations into the act itself. Whether this proviso merely saves a commercial use of the live performance outside the film may perhaps only be determined by cases currently before the Delhi High Court.

Section 39A of the act extends certain provisions of the act that typically apply to copyright “with necessary adaptations”, to performers’ rights. These provisions include the right of the authors of literary and musical works to receive royalties under sections 18 and 19 of the act. It is not settled whether and to what extent necessary adaptation should be stretched to afford performers the same rights.

India is a signatory and has acceded to the Agreement on Trade-Related Aspects of Intellectual Property Rights as well as the WIPO (World Intellectual Property Organization) Performances and Phonograms Treaty (WPPT), neither of which requires the sharing of royalties between sound recording owners and performers. WPPT does provide that owners and performers have the right to a single equitable remuneration for the use of phonograms, as enacted by national legislation, but India has entered a reservation that it will not apply this provision.

This leaves many unanswered questions, including what are performances and are they limited to live performances? If yes, who is responsible to pay performers royalties for live performances in concerts? If not, are recorded studio performances excluded? Are there exceptions to the exercise of rights by performers? What channels will be required to pay performers royalties and who will be liable to pay?

These questions have been unanswered since at least the amendments in 2012. Only the future knows when the answers will finally arrive.

The Big “Monster”: User Generated Content in the Indian Landscape

The Big “Monster”: User Generated Content in the Indian Landscape

Introduction

The most popular way of finding a new song, or discovering a show or movie, is by hearing it or about it, relentlessly, on Instagram ‘Reels’, or other social media platforms and short form video applications. In fact, if a song is ‘trending’ on such platforms, it is likely to be streamed on audio streaming platforms, multiple times, by millions of users, or even heard on the radio, enabling it to be a sure shot ‘hit’ . However, the flipside of the song becoming so popular, for the owners of songs, is that all such uses may not have been done with the owner’s permission. In fact, most uses of songs and other content (audio, visual, and audio-visual) on the internet, have likely been done without appropriate permissions.

Many users creating content for use on the internet, whether in the form of images as memes, videos of performances hopping on to the latest dance trend, end up using songs and other content owned by someone else, under the incorrect assumption that small or insignificant uses of third-party content on the internet will not amount to infringement or that they fall under “fair-use”. In fact, many users also incorrectly believe that providing appropriate credit or adding a ‘disclaimer’ would be sufficient to avoid receiving any copyright infringement claims from the owners of the ‘used content’. Another common misconception is that use of the ‘used content’, without permissions, as long as it doesn’t generate any revenues, is permissible. These wrong assumptions, and perhaps a lack of awareness of the rights being utilized or that such utilization requires authorization from the owner of the content, has led to the creation of the monster that is ‘user generated content’.

It can, however, be a friendly monster, and can work in the favour of both – the owner of the content, and the creators/users of the content. The creators and users of the user generated content – social media influencers and content creators, have made lucrative careers out of their presence on the internet and have amassed a huge number of ‘followers’. Whereas, for owners of the content, the favourable by-products of the use of their content by such users to create the user generated content, are large scale promotion and visibility of their content, to millions, on the eternal endless internet. That being said, unless the term of copyright has expired, or the use is deemed to be ‘fair use’ under the applicable laws, the content owner’s rights, such as copyright and other neighbouring rights, like moral rights and performer’s rights, in both – the existing audio and audio-visual content (“Third-Party Content”) are being utilized, without the owner’s authorization, by the creators/users in the creation of the content that they ultimately create using such Third-Party Content (“User Generated Content”).

As seen above, User Generated Content is currently a fairly confused jumble of good and bad, for users/creators of User Generated Content (“Creators”) and owners of Third-Party Content (“Owners”) alike. There are pros and cons to User Generated Content, and it is the cons that must be ‘caged’, and the pros are the reason they have to be ‘befriended’.

Caging the Monster

Beginning with the cons of User Generated Content, probably the biggest and foremost negative aspect is the uncontrolled and unauthorised usage of the Third-Party Content, because of which an Owner stands to lose significantly. There could be considerable loss of revenues, whether from the lack of license fees or royalties, or from consumer preference of User Generated Content over Third-Party Content. There is also a high risk of content piracy from unchecked use and availability of Third-Party Content as a part of User Generated Content. Further, unauthorised use of Third-Party Content by a Creator could be in a manner that is not appreciated by the Owner, or in a manner that the Owner could consider to be damaging to their reputation or goodwill and/or as distortion or mutilation of their content. An Owner is left with having to make a choice between having their content become wildly popular by means of its unauthorised use by Creators at the risk of losing out on their economic benefits, or effectively, stifling its success by taking an adversarial position against unauthorised User Generated Content. While the biggest and foremost negative aspect likely affects only Owners, it will be in the best interest, and for the most part, under the

  1. https://www.hindustantimes.com/entertainment/music/surreal-for-chaand-baaliyan-to-go-viral-after-two-years-of-release-aditya-a-101646393968095.html

control of the Creators to not let such cons get in the way of their creativity. Let’s look at how, a little closely.

Beginning with the basics, the Copyright Act, 1957, the law governing copyright in India, bestows certain exclusive rights to the owners/controllers and authors/creators of content – films and shows, songs, music, lyrics, photographs or stills from films and shows, dialogues, etc. There are also certain rights available to the actors, singers, and other visual and vocal performers, in their performances, as rendered for the audio/audio-visual content. These rights, for the purposes of understanding the rights used or exercised by a Creator in User Generated Content, can be broadly classified as under:

  1. Reproduction – taking a piece of content, and ‘reproducing’ it, as it is or with modifications, on identical or other mediums, or in the same or other formats. Reproduction is ‘copy and pasting’ of sorts. For e.g., taking a still from a movie and uploading it on the user’s social media account, with an unrelated caption, pasting other images, emojis, etc. over it, would amount to reproduction.
  2. Performance/communication to the public – any display or playing of Third-Party Content, as a part of User Generated Content (or otherwise), where it can be generally viewed by the public, is known as ‘performance’ of the Third-Party Content. Therefore, for example, where a Creator ‘acts’ out a popular movie scene in their User Generated Content, it will amount to performance of the dialogues acted out, or where a Creator dances to a song in their User Generated Content, it will amount to performance of the song.
  3. Adaptation – adaptation is where one type of Third-Party Content is ‘adapted’ into another. For e.g., where a Creator creates a remix of a song, or creates a mash-up of two or more songs, the Creator has created an adaptation of the original song(s).

It is important to remember that there are several other rights that are available to a copyright owner/controller, and/or author of a copyrighted content, and in most User Generated Content, more than one right necessarily gets used or exercised. For example, a right in the copyright family known as ‘personality rights’ gets exploited by a Creator who is miming an actor. In fact, a choreographer of a dance routine has certain rights in the routine that get exploited by Creators performing the routine.

In most cases, it is not possible to neatly classify the use of a Third-Party Content as having exercised any one particular right, and it is usually a combination of two or more rights that get exploited. What is more important to remember that if these rights in a Third-Party Content are used or exercised by a Creator in their User Generated Content, without appropriate permissions, then the rights of the Owner of the Third-Party Content are, necessarily, infringed. The owners, authors, artists, creators, etc. of the Third-Party Content, having spent considerable time and effort in its creation, would, naturally, like to reap its benefits. Such benefits are what is known as copyright – the intangible right to decide how the works gets used, and how to earn from it.

As elaborated by our colleagues in another article earlier this year , the principle of de minimis (i.e., a legal principle which allows for matters that are small scale or of insufficient importance to be exempted from a rule or requirement) does not find statutory backing in India. It is left to the Courts to determine, on a case-by-case basis, whether a use of copyrighted content is small enough to not be considered as infringement. Therefore, it must be borne in mind that all unauthorised uses of copyrighted content, in any form or manner, in any quantity, or to any extent, will be infringement. This throws the question of ‘small’ or ‘insignificant’ or ‘harmless’ uses of Third-Party Content out the window, as there exists no such possibility.

In this digital era, especially with the advent of the pandemic, when life, as we know it, became almost entirely virtual, User Generated Content has taken a fairly uncontrollable and unchecked form. Many social media platforms and short-form video applications, such as Josh, Moj, ShareChat, MX Takatak, etc., in addition to the most popular, YouTube, Instagram, and Facebook, offer people many ways to create, upload, and consume Third-Party Content and User Generated Content. These platforms, though they partake in the performance of the Third-Party Content (as a part of User Generated Content or otherwise) by literally providing a platform for communication of the User Generated Content, have legitimate shelter under the statutory protection granted to ‘intermediaries’ under the Information Technology Act, 2000 (as amended from time to time).

  1. https://tmtlaw.co.in/doctrine-of-de-minimis-vis-a-vis-copyright-infringement/

For the unacquainted, an intermediary is a platform that merely receives, stores, or transmits any content on behalf of another. The Indian legal framework provides that an intermediary shall not be liable for any content made available or hosted by it, provided that the function of such intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted, and provided further that an intermediary does not: (a) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission.

More recently, though, popular audio clips and songs/song clips are made available by the platform itself, under a ‘library’ feature of the application, for use by the users of the platform in their User Generated Content. Such making available of audio clips to users of the platform, by the platform, if done without appropriate licenses, will disentitle them from seeking the statutory protection available to intermediaries, as it goes against the conditions mentioned above.

The Indian statutory and judicial landscape impose certain due diligence obligations on an intermediary, with respect to the content it hosts. An intermediary has the right, and in certain instances, an obligation, to ensure content on its platform does not infringe any rights of any third-parties. In particular, when an intermediary has received notification of infringement of rights in the content on its platform, it must take necessary action to take it down and prevent such infringement. Practically speaking, however, it is not manually possible or feasible for an Owner of the Third-Party Content to comb these platforms, extract details of infringing content, and notify the platform of the same, mainly because these platforms boast of millions of daily active users .

Needless to say, the task of caging the monster appears to be a tedious task. As putting a complete end to User Generated Content, or even controlling it on a largescale level, may not be possible, the question that remains is if some kind of a work around is possible, even if only for the obvious reason of preserving the freedom of speech and expression of the Creators of User Generated Content. It would definitely be easier for Creators of User Generated Content, if they do not have to fear and/or respond to copyright infringement claims, and for Owners of Third-Party Content to not have their content be unfairly used without permissions.

There are a few ways in which Third-Party Content may be used by Creators in order co-exist without disputes, and/or infringing rights of any person or entities, while also protecting freedom of speech and expression, for the most part, as indicated below:

  1. By using content available in the licensed content library of social media platforms only. As tempting or convenient as it may be to use (or reproduce) a song directly, the same may get picked up in fingerprinting (explained below), and be subject to unpleasant claims or blocks.
  2. There are certain uses which are statutorily deemed to not be infringement. The Indian copyright law provides a detailed list of uses of Third-Party Content, such as criticism, review, reporting, use in the course of education, etc., which are considered as ‘fair-use’ and are exempted from the exclusive rights available to the owner of copyright, and thus, will not be deemed to be infringement. Creators of User Generated Content must stay within the bounds of these exceptions to avoid infringement claims.
  3. Approaching the Owners for permissions to legitimately use such Third-Party Content to create the User Generated Content.

Befriending the Monster

Recognising that User Generated Content, with its many pros, is here to stay, will be the first step to dealing with it in an effective manner. As already mentioned above, there is a new category of professionals in this digital day and age – the influencers, bloggers/vloggers, and content creators, and they have become important tools to having countless entertainment content, brands/products/services, advertisements, information, news, etc. reach a consumer in the palm of their hands. What Owners are also coming to realise is that Creators are instrumental in the increase in popularity of their content without spending what

  1. https://indianexpress.com/article/technology/social/josh-the-short-video-app-born-after-indias-tiktok-ban-gets-805-million-7854930/
  2. Section 52 – Copyright Act, 1957

otherwise would have been a hefty marketing budget to undertake traditional ways of promoting their content, with lesser reach.

Platforms like YouTube and Meta (for Facebook and Instagram) have led the way in this endeavour of befriending the monster. Presently, they have obtained blanket licenses from owners of music content for use of music on their platforms, perhaps pre-empting that they could be subject to copyright infringement claims and notices, due the acts of the Creators on their platforms. Such licenses typically allow the platform to offer songs from their licensed music catalogue, as a part of the aforementioned ‘library’ feature, and in a sense, legitimise the use by the Creators of the Third-Party Content in the User Generated Content, on the licensee platforms. Some platforms are also actively working with Owners of the Third-Party Content, to develop efficient technologies, specifically, ‘finger-printing’ technologies . Without going into the technical details, this technology identifies Third-Party Content (both audio and audio-visual), that has been used in User Generated Content. It then deals with the unauthorised usage of the Third-Party Content automatically, whether by way of placing automatic claims and redirecting revenue (if any) to the original owner, blocking, muting, etc., but all of this, while giving sufficient opportunity to the users to respond to the claims.

Further, the last few years have shown us that Owners and Creators can, in fact, co-exist. The most heart-warming story is of a young singer, all the way across the globe in the U.S.A., creating and uploading a cover version of a popular song on the internet, the cover version becoming popular on social media and finding its way to the producer, and the producers loving the version so much that they collaborated with the singer to create an official acoustic version of the song, which is also extremely popular. The singer, needless to say, is now hugely successful . The cover version, though an infringement when first uploaded, opened up beneficial avenues, to both the parties. Similarly, a content creator and singer based in Mumbai, who regularly creates and uploads different versions of popular Indian and international songs on her social media accounts was also discovered based on a Hindi version of an English song that she created. What is notable about this instance is that the English song, which wasn’t so popular when released in the early 2000s was ‘trending’ on the User Generated Content circles, and as a consequence, on streaming platforms. The Creator’s song was also highly appreciated on social media, ultimately reaching the original singer, who sincerely appreciated it .

Conclusion

Copyright is a personal right, in that, if Third-Party Content is used in User Generated Content, the same is infringement de facto, but that infringement becomes an issue, if the Owner of the Third-Party Content decides to treat it as an issue. An Owner of Third-Party Content, legally has, and should have, the right to decide how their content is used. As we have seen, a few instances of use of User Generated Content have led to tremendous success and recognition for some Creators, as in these instances, the Owners chose to appreciate the User Generated Content. However, the possibility than an Owner may not appreciate the User Generated Content and may instead choose to assert their rights always exists. It is evident that the law needs to adapt to recognise the boom in the development of User Generated Content and make provisions to address this, while ensuring that Owners don’t lose out on the economic benefits of being copyright owners, so that their rights aren’t rendered meaningless, and nor do the Creators lose out on their creative freedom and growth. Until this happens, it will be in the best interest of a Creator of User Generated Content, to be cognizant of an Owner’s copyright while using Third Party Content.

  1. ‘Fingerprinting’ is identifying a piece of content by its unique characteristics. It is typically accompanied by an unique alpha-numeric ID given to a piece of content, by the platform on which the content is uploaded. The ‘fingerprint’ of the content is then used to track similar or substantially similar content on the platform, and tackle infringement, by placing claims / blocks / strikes, etc. Google first developed this technology, known as ‘Content ID’ for YouTube, which is now adopted or developed by other platforms. There are also service providers such as ‘Audible Magic’ that provide content infringement tracking via fingerprinting as a service to other platforms. It is pertinent to note that each platform has different terms and conditions for upload of content and use of fingerprinting technology. Further reading:
    https://support.google.com/youtube/answer/2797370?hl=en; https://www.audiblemagic.com/technology/.
  2. https://rollingstoneindia.com/the-extraordinary-rise-of-lisa-mishra
  3. https://support.google.com/youtube/answer/2797370?hl=en; https://www.audiblemagic.com/technology/.

Meghana Chandorkar, Partner

An Alumnus of ILS Law College, Pune, Meghana has 12 years of experience as an Intellectual Property and Media & Entertainment lawyer. After graduating in 2009, she has worked with the intellectual property teams of leading law firms, with a strong focus on trademark and copyright law, as an in-house counsel for a music company, and for a broadcast, media, and entertainment company.

Urjitah Srikanth, Senior Associate

Urjitah is a Senior Associate at TMT Law Practice. She graduated in 2018, and enrolled with the Bar Council of Maharashtra and Goa. Since her graduation, she has worked with boutique IP law firms, servicing media and trademark (prosecution) clients, and has also worked in-house for a music label and publisher.

Virtual Spaces and the Metaverse:The ‘Next Big Thing’

Virtual Spaces and the Metaverse:The ‘Next Big Thing’

At the cusp of the new year, we have almost passed these past two years locked away from the real world and have spent a significant time in the digital space. Schools, offices, court hearings, shopping, social ‘hang-outs’, are now all majorlyoperating through the internet, if not entirely. Speaking strictly of the persons and entities who have had the option and ability to run their lives, digitally, in a pandemic, is eerily reminiscent of a time in early 2000s when chat rooms, multi-player video games played a major role in our lives. Tech companies have taken note of this, and we are now presented with a rebranded, virtual living experience, the “metaverse”.

Metaverse may lead to concerns around data privacy and protection, security andprotection of other third-party rights, including intellectual property rights, and health . On the surface, and with a basic understanding of the ‘metaverse’, these concerns seem legitimate. So here is looking at the ‘Next Big Thing’ a little closely.

What is ‘Metaverse’?

If you do remember ever possessing or having been in the vicinity of a Tamagotchi, then you have already experienced the blurring lines between the digital world and the real world, or virtual reality . Metaverse, is nothing, but a parallel to the physical world that we live in. It is a decentralized virtual world. Online communities have long existed, and people who ever logged into AOL instant messengers, online chat rooms, or played World of Warcraft, or Fortnite, or Roblox are already interacting in some version of this “Next Big Thing”. This enables the participants to create their own virtual avatars, participate in activities, and hang out in virtual spaces, much like how they interact in the “offline” world.

Virtual Reality and Augmented Reality

Virtual reality (VR) signifies computer generated set-up of familiar surroundings which allows the users to undergo the immersive experience, by the use of VR headsets, helmets, and the likes. It is a completely virtual experience, as opposed to augmented reality (AR),which isan interactive experience which uses a real-world setting, allowing the users to enhance their experience, and may be accessed via a smartphone as well. For instance, an empty room can appear to be filled with objects, characters, when looked through a lens, which is supported by AR. Remember the game ‘PokemonGo’, where using the PokemonGo application on your phone, you could catch Pokemonhanging around your room? You could catch the Pokemon outside your house, on roads, parks, cafes, etc., but pointing the camera in different directions, and locating Pokemon in these locations, using augmented reality.
In all seriousness, it has the scope of improving the experience of working and studying from home. It provides a platform for a people to meet, virtually, in a more immersive manner, without having the constraints of sitting before a screen.

Privacy and Data Protection

With Metaverse becoming a reality, several entities are willing to catch this bus. In doing so, entities like Meta (erstwhile Facebook) are willing to rollout devices (hardware) and software alike, to be used for the purposes of people participating in this ecosystem. This in turn is going to allow the entities to place an absurd number of devices acting as sensors, and consuming high volumes of personal data

https://www.cpomagazine.com/data-privacy/rollout-of-facebook-metaverse-plans-greeted-with-privacy-concerns/

https://blog.malwarebytes.com/privacy-2/2021/11/zuckerbergs-metaverse-and-the-possible-privacy-and-security-concerns/

https://www.wired.com/story/tamagotchi-25-year-anniversary-impact/

for enabling services.The heart of the problem is the lack of regulation, or the lack of adequate and uniform regulation, in any case. Till such regulatory gaps are filled to govern the types of data that can be collected and how they can be used, users will need to be mindful and remember that the data provided on the metaverse is not limited to data that is input by the usersor that is compiled from activities on the social networks. It can also be biometric data – the way that the user moves,the user’s facial gestures, body language, etc.Companies and advertising agencies use this type of user data to deliver targeted ads. It is in this way, social media shapes everything – what we buy, what content we consume, what we believe, how we think. The biggest companies have adopted an ad-supported model for their platform offerings. It is data that enables companies to make profits by selling effective ads, but consequently, influence several aspects of our lives, without our knowledge.

Content Control and Monitoring

‘Trolling’, harassment, hate, and cybercrime and cyber bulling on one hand, and ‘deepfakes’, synthetic media, and fake news on the other hand, these words have come to define a major part of internet experiences of most people. Once again, lack of adequate and uniform regulation, and in this case, combined, ironically, with a lack of adequate technological measures to counter these ills, make the metaverse not seem very user friendly, literally. Imagine walking the streets of Paris, while another user is hurling abuses at you or where the streets of Paris are covered with your private information. From what seemed to be a leisurely walk, in your private world, you move on to being subject to abuses, may be caused by a stalker, or a hacker who chanced upon you.

There exists technology today, that that brings to life prominent personalities from history (not literally), make them give speeches that look very real and authentic, but are in fact, computer generated[1]. This is known as deepfakes. Regular users of the internet are probably familiar with the comparatively harmless versions of the same technology – know what you would look like 30 years from now, 30 kgs heavier, with longer hair, etc. These computer-generated images look very realistic and can fool anyone. There are myriad ways in which, this technology, in the wrong hands could have disastrous consequences, especially in the real-time metaverse interactions.

The legal framework is usually slow to catch-up to technological development.It is in 2021 that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in India made it an obligation on social media platforms having more than 5 million registered users in India to employ technology-based measures such as automated tools and other mechanisms to proactively identify and remove information that depict rape, child sexual abuse or conduct, whether explicit or implicit[2]. It is a limited, and probably insufficient, obligation, placed on a limited class of entities, and similar obligations should necessarily be placed on all types of misinformation, and on a broader category of entities, but it is a step in the right direction.

While the law makers navigate the line between freedom of speech and expression and stifling of unwarranted content, it is entirely upto these companies toapply an ethics-based model to address and removecontent that is insulting and hateful, or false and inaccurate from their platforms. The algorithms being controlled by the companies need to necessarily, be built to effectively counter the evils of hate speech and misinformation.

Economic Impact

This socialisation aspect may be the most appealing, especially in times when internet personalities are hugely important, there are other likely uses of metaverse. For example, e-commerce platforms [1]https://www.scientificamerican.com/article/a-nixon-deepfake-a-moon-disaster-speech-and-an-information-ecosystem-at-risk1/, https://medium.com/@CathyHackl/now-is-the-time-to-talk-about-ethics-and-privacy-in-the-metaverse-f7bcd68f0a88 [1]Rule 4(4) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

will have the ability to compete with physical stores on all the aspects which were previously points of differences between online shops and brick and mortar shops. Businesses can provide their consumers tutorials / demonstrations and trials of products, virtual stores can be constructed such that instead of scrolling on a page, a buyer can walk through its virtual counterpart, and so on, with endless opportunities for innovation.

Essentially, the metaverse provides newer channels for advertising, newer mediums for providing goods and services, both old and new, newer methods of exploiting exiting and known entertainment and technology, in seemingly limitless real estate.  There is a lot of money to be made – and spent – in the metaverse, as evidenced by the progression to this next big thing. First came blockchain technology, a secure database to store information, used widely to store cryptocurrency assets. Then came the ‘non-fungible tokens’ (NFTs), which, in simple words, is digital art with attached value, like an antique painting of Monet, fluctuating each day. With the currency and assets taken care of, now comes metaverse, where a user can own a digital space, wherein to display this art, and spend this currency.

Intellectual Property

The metaverse is, in itself, comprised of large proprietary spaces of programmes and software, owned and controlled by the developers. There are also smaller portions of intellectual property embedded into such spaces. In recent developments, brands like Nike and Gucci have invested in creating products for the digital world, selling them for an actual monetary value. In fact, Nike has constructed a whole store within Roblox[1]. Soon, users will be able to wear all their favourite clothes in the metaverse programme, and also digital clothes over their regular clothes in the physical world, visible only through augmented reality glasses. A website called ‘DressX’ is already selling digital clothes, in an augmented reality delivery[2].

It all boils down to how these brands, i.e., the creators and owners of intellectual property structure the licensing deal with metaverse programme(s). Similar to, say, a music licensing deal, if an artist has licensed his song for streaming only on Spotify, but a pirated version or a user generate cover or other version recording pops up on YouTube or on Apple Music, the recourse is within the latter, for redressal and take downs. Such mechanisms will necessarily have to be part of all metaverse applications, to prevent infringement and unauthorised uses. In short, fakes and dupes will likely be as much a problem in the metaverse as they are in the real world. Fingerprinting and blockchain technology, however, will certainly have the ability of countering infringement in the metaverse more effectively, than the physical world. Embedding information such as history of creation, ownership, and tokenising a digital asset as an NFT, will likely be the answer to protect IP in the metaverse.

There is also the intellectual property which the users will generate on the metaverse programmes. Such as the layout of their house, an item of clothing designed by them, etc. The users, naturally, would seek to monetise and protect these as their IP. However, considering the creations of a user on the metaverse programme will not be entirely theirs, in that the medium (i.e., the underlying code and programming) in which their designs will be created, is vested with the developer. In this scenario, where will the demarcation lie, and in what proportion will rights, title, and interest be shared between the users and the owners of the medium?

End Note: While this article has discussed the metaverse from two limited angles, the metaverse will likely impact many other areas as well, such as the environment, a user’s health and psychology, etc.,

 

[1]https://www.pymnts.com/news/retail/2021/brands-bet-big-on-sales-in-the-metaverse/

[2]https://dressx.com/pages/about

and more generally speaking, technological developments – such as the artificial intelligence and mainstream robotics, which could, at this rate, be the next ‘next big thing’.

Social media in its present form is known to have caused depression, eating disorders, and other psychological issues related to self-esteem. There is no real way to ‘clean-up’ these platforms of these issues, other than by users being more conscious about their activities on such platforms, or by regulations imposing age based, or other restrictions on such platforms. Naturally, the metaverse will be no different, in fact, it has the potential of being addictive and add to such problems, as predicted by scientists and psychologists, add to a wave of psychoses and schizotypy (think The Matrix). Most of us have seen enough and more science fiction movies and shows (Ready Player One, certain episodes of Black Mirror) to know exactly what not to do and ensure that we do not end up living in a simulated dystopia. Let’s not let that preparation go to waste.

The healthcare industryalso, in all likelihood,stands to gain the most from the metaverse. The healthcare sector can explore virtual care, remote patient care and monitoring, data-driven care, etc.

The long and short of it is that the metaverse is here to stay, and with that reality, it is entirely up to us, the human-kind collectively, to make the best, most ethical, user friendly, and environment friendly use of it.

Urjitah Srikanth, Senior Associate

Urjitah is a Senior Associate at TMT Law Practice. She graduated in 2018, and enrolled with the Bar Council of Maharashtra and Goa. Since her graduation, she has worked with boutique IP law firms, servicing media and trademark (prosecution) clients, and has also worked in-house for a music label and publisher. She has had the opportunity to work with production houses, talent managers, OTT and audio streaming platforms, artists – actors, singers, performers, songwriters (authors and composers), writers, etc., and music labels and publishers. Her expertise lies in deal structuring and contract drafting and negotiating, specifically pertaining to the media industry, having dealt with transactions involving content creation and exploitation across various modes, media, and formats, brand deals for content creation and distribution, endorsements, services agreements, and marketing agreements. Urjitah caters to the requirements of clients in the media and entertainment sector, by providing advisory and consultancy services in all aspects of clients’ businesses, with a keen focus on intellectual property (copyright and trademarks).

Cable Television Networks (Amendment) Rules, 2021

Cable Television Networks (Amendment) Rules, 2021

The Government of Indiahas, recently, focusedconsiderable attention increating and laying outmechanisms to preventany unfavourable contentfrom slipping through the cracks, andseeing the light of day. It started withthe controversial Information Technology(Intermediary Guidelines And DigitalMedia Ethics Code) Rules, 2021 (“IT Rules2021”) notified earlier this year by theMinistry of Electronics and InformationTechnology and was followed by theMinistry of Information and Broadcasting(“MIB”) publishing the proposed theCinematograph (Amendment) Bill,2021, followed shortly thereafter, bythe notification of the Cable TelevisionNetworks (Amendment) Rules, 2021(“Cable Rules 2021”) on June 17, 2021.

The Cable Television Networks(Regulation) Act, 1995 (“Act”), asthe name suggests, is the law whichgoverns the operation of cable televisionnetworks in India. At present there areover 900 television channels which havebeen granted permission by the MIB allof which are required to comply with theProgramme Code and Advertising Codelaid down under the Cable TelevisionNetworks Rules, 1994 (“Rules”). TheCable Rules 2021adds certain provisionsto these Rules.

At first look, it may appear that theCentral Government is attempting tobring the grievance redressal regulationsfor content on television at the samelevel as what has been introduced forcontent on digital / OTT platforms videthe IT Rules 2021, however, the CableRules 2021 finds its roots in CommonCause Vs Union of India & Others1,wherein the Hon’ble Supreme Court inits order advised the Central Governmentto frame appropriate rules to formalizethe complaint redressal mechanism.Accordingly, the changes introducedby the Cable Rules 2021 attempt tooverlay a robust institutional systemfor redressing grievances ensuringthat broadcasters follow the multilevelself-regulation mechanism andare responsible and accountable forthe content that is exhibited on theirchannels. The key changes brought aboutthrough the Cable Rules 2021 are set outbelow:

A. It sets out the procedure for thefiling and processing of a grievance orcomplaint received by a broadcaster.2

B. It sets up a 3-tier complaintredressal structure3, similar to theredressal mechanism in the IT Rules2021, to ensure observance andadherence to the Programme Code andthe Advertising Code laid out in theRules, and to address any grievanceor complaint on the content of anyprogramme or advertisement of anychannel. The 3 tiers are:

a) self-regulation by broadcasters,i.e., the internal-check mechanism foreach broadcaster.
b) self-regulation by the self-regulatingbodies of the broadcasters,i.e., a regulatory body to be formed by atleast 40 broadcasters.
c) oversight mechanism by theCentral Government, i.e., the government‘watch-dog’ for adherence to theProgramme Code and the AdvertisingCode, with the power to hear and take upsuo moto cognizance of any grievance /non-compliance.

C. It empowers the CentralGovernment to prohibit the transmissionor re-transmission of any channel,programme, or advertisement which isnot in conformity with the ProgrammeCode and/or the Advertising Code.4

D. It empowers the CentralGovernment to set up an ‘Inter-Departmental Committee’ to carry outcertain functions of the OversightMechanism and other functions.5

The Act, read with the Rules, providedfor a dispute resolution mechanism6,which required every broadcaster to setup arrangements for handling complaintsand redressal of grievances of thesubscribers, as may be prescribed by theCentral Government or by an order of theTelecom Regulatory Authority of India.The Cable Rules 2021 has filled thisgap with newly inserted Rule 167. Rule16 provides that any person aggrievedby the content of a programme /advertisement, or a channel as being notin conformity with the Programme Codeor the Advertising Code may file theircomplaint in writing to the broadcaster.The Cable Rules 2021 provides for timelyacknowledgement and disposal of thegrievances.

It is pertinent to note that there arealready certain independent bodies suchas the Broadcasting Content ComplaintsCouncil (“BCCC”) set up by the IndianBroadcasting Foundation (“IBF”) and theNews Broadcasting Standards Authorityset up by the News BroadcastersAssociation, which have been recognisedby the MIB, and have been receiving andadjudicating on complaints in relationto content on television. Further, theBroadcasting Wing of the MIB has alsoset up an Inter-Ministerial Committeeand an Electronic Media MonitoringCentre to address any grievances ofthe general public on the content ontelevision, and to ensure complianceand issue advisory in relation to theProgramme Code and the AdvertisingCode.8 All of these bodies, that werefunctioning independently till now, willnow take on a statutory form underthe Cable Rules 2021 and it remainsto be seen whether the impact of suchstatutory recognition would alter thedynamics of their functioning.

While the Cable Rules 2021 attempt toarticulate the procedure to be followedby anyone aggrieved by the content ontelevision, one foreseeable consequenceof this could be that there is scope forconfusion on where a complaint is tobe taken. There are several avenuesnow, starting with ASCI and theCentral Consumer Protection Authorityestablished under the ConsumerProtection Act, 2019 for advertisements,the redressal mechanism laid out in theCable Rules 2021 for films and shows onTV, and the redressal mechanism laidout in the IT Rules 2021 for films andshows that are also available on OTTplatforms. Further, a broadcaster willalso be receiving complaints and relatedcommunications from several avenues,causing further confusion on responses.

The introduction of self-regulatingbodies is another aspect of theCable Rules 2021 which is similar tothe requirements to be followed bypublishers of news and current affairscontent and OTT platforms under theIT Rules 2021. Like the IT Rules 2021,the Cable Rules 2021 require everybroadcaster to establish a grievanceor complaint redressal mechanism,and appoint an officer to deal withthe complaints received by it, displayall the relevant details related to itsgrievance redressal mechanism, includingthe name and contact details of theappointed officer on its website orother appropriate place, ensure that theappointed officer takes a decision onevery grievance or complaint receivedby it within the prescribed period, andbe a member of a self-regulating bodyand abide by its terms and conditions.The Cable Rules 2021 go on to prescribethat the appointed officer shall be thecontact point for receiving any grievanceor complaint and shall be required to actas the nodal point for interaction withthe complainant, the self-regulatingbody, and the Central Government.Needless to say, the broadcaster ismandated to comply with every advisory,guidance, order, or direction issuedby the self-regulating body or by theCentral Government.

One difference between the self-regulationto be conducted under the ITRules 2021 and the Cable Rules 2021, isthat under the former, an OTT platform isrequired to classify the content availableon the platform into the categoriesprescribed under the IT Rules 2021,having regard to the context, theme,tone, impact, and target audience ofeach content, with the relevant ratingbased on an assessment of the contentdescriptors, and also display the same,in the manner required under the ITRules 2021. As mentioned above, nosuch classification or certificationrequirement has been introduced forcompliance by broadcasters. However,the Programme Code acts as a guidancedocument for broadcasters to adhere tothe requirements.

Additionally, content on televisionis subject to the time-slots dictated bythe Self-Regulatory Content Guidelinesof the IBF9. These guidelines alreadyprescribe rating requirements, basiswhich content can be categorised as‘Generally Accessible Programmes’ or‘G’ programmes, for broadcast at alltimes in the day, and ‘Restricted AccessProgrammes’ or ‘R’ programmes whichmay not be suitable for young viewers,for broadcast only between 11 PM to5 AM. This could be another reasonwhy the certification is not felt to be arequirement when it comes to televisionprogramming.

In addition to self-regulation by eachbroadcaster, independent body(ies) areto be constituted by the broadcasters, orits association, comprising a minimumof 40 broadcasters as the second levelself-regulation in accordance with theCable Rules 2021. The self-regulatingbody is to be headed by a retired judgeof the Supreme Court or of a High Court,or an independent eminent personfrom the field of media, broadcasting,entertainment, child rights, humanrights, or such other relevant fields, andshall have maximum 6 other memberswith similar background.

The BCCC has been registered as aself-regulatory body under the IBF forredressal of grievances against the non-newstelevision channels shortly afternotification of the Cable Rules 202110.Prior to the Cable Rules 2021, the BCCChas been sincere in their efforts toregulate content on television, and have,in more than one instance, taken actionagainst broadcasters for non-compliancewith its guidelines, as well as with theProgramme Code and Advertising Code,and bringing any problematic content tothe attention of the MIB.

With the ongoing trend, any contentregulation would be incomplete withoutthe Centre having the final word. Thethird and final level of self-regulationcomes in form of the ‘over-sightmechanism’, to catch any oversightat the broadcaster or self-regulationbody level, and to set things straight.The Cable Rules 2021 mandates theCentral Government to constitute anInter-Departmental Committee, tohear complaints regarding violationor contravention of the ProgrammeCode and the Advertising Code thatmay: (i) arise out of appeal againstthe decisions taken at the broadcasteror self-regulatory body level, orwhere no decision is taken within theprescribed time, or (ii) be referredto it by the Central Government andmake recommendations to the CentralGovernment, after examining thecomplaints.

This Inter-Departmental Committeewill comprise of the Additional Secretaryin the Ministry of Information andBroadcasting, representatives fromthe Ministry of Women and ChildDevelopment, Ministry of Home Affairs,Ministry of Electronics and InformationTechnology, Ministry of External Affairs,Ministry of Defence, and experts andrepresentatives of other Ministries andOrganisations, and is authorised todevise its own procedure for hearinggrievances or complaints.

The Central Government’s oversightis also the subject matter of theCinematograph (Amendment) Bill, 2021(“Bill”) to amend the Cinematograph Act,1952. The Bill primarily introduces thefollowing: (a) age-based sub-categories ofthe ‘U/A’ certification granted to films,i.e., U/A 7+, U/A 13+ and U/A 16+, (b)prohibits and penalizes unauthorizedrecording or transmission of a copy ofa film, (c) and grants revisional powersto the Central Government over a filmcertification granted by the CentralBoard of Film Certification (“CBFC”). Theclause regarding revisional powers is mostapprehensive, especially since this powerhas already been held by the Supreme Court to be an exercise in excessive delegation of the statutory safeguards.

The most immediate and pressingconcern arises that now, the CentralGovernment is empowered to, in a ratherindefinite fashion, to issue appropriatedirectives in relation to content exhibitedacross platforms. The general underlyingtheme of the Cable Rules 2021, the ITRules 2021, and the Bill seems to bethat the Central Government is keenon stepping in, and passing orders forcompliance with vague and subjectivecodes and guidelines. The CentralGovernment may take refuge underArticle 19(2) of the Constitution of Indiawhich permits the Government to imposereasonable restrictions upon the freedomof speech and expression however theCable Rules 2021, the IT Rules 2021, andthe Bill seems to be an attempt to controlwhat the content that is produced andavailable for consumption, but also tomonitor what is being consumed onseveral media, and seems to be violativeof the principle of separation of powers.

It has not been much time since theCable Rules 2021 were notified and theBill is yet to become the law of the land,but if history provides any indicationas to what is to come, the IT Rules 2021have not been received very well andhave been heavily criticised. While theIT Rules 2021 have prepared the majorbroadcasters which have their own OTTplatforms to comply the multi-levelgrievance redressal mechanism set out inthe Cable Rules 2021, certain provisionsof IT Rules 2021 have been challengedfor being violative of fundamental rightto freedom of speech and expressionand the outcome of these petitionsremains to be seen. Only time will tellif the Cable Rules 2021 is intended forgrievance redressal or censorship.

Nandini Kumar, Associate Partner, TMT Law Practice

Nandini Kumar is an Associate Partner in TMT Law Practice with over 6 years of demonstrated history of working in the Indian media and entertainment industry. Before joining TMT Law, she was working with one of the leading television broadcasting companies and a boutique Intellectual Property law firm. She has provided transactional and advisory support for content creation and content exploitation across various modes, media and formats.

Urjitah Srikanth, Senior Associate, TMT Law Practice

Urjitah Srikanth is a Senior Associate at TMT Law Practice. She graduated in 2018, and enrolled with the Bar Council of Maharashtra and Goa. Since her graduation, she has worked with boutique IP law firms, servicing media and trademark (prosecution) clients, and has also worked in-house for a music label and publisher. She has had the opportunity to work with production houses, talent managers, OTT and audio streaming platforms, artists – actors, singers, performers, songwriters (authors and composers), writers, etc.

1(2018) 13 SCC 440
2Rule 4 of the Cable Rules 2021
3Rule 4 of the Cable Rules 2021, newly inserted Rule 15
4Rule 2 and Rule 3 of the Cable Rules 2021, newly inserted Rule 6(7) and Rule 7(12)
5Rule 4 of the Cable Rules 2021, newly inserted Rule 20
5Rule 14 of the Rules, and Section 4A(5) of the Act
7Rule 4 of the Cable Rules 2021
8https://mib.gov.in/about-broadcasting
9http://www.ibfindia.com/sites/default/files/IBF%27s%20Self%20Regulatory%20 Guidelines%20 % 28updated%20version%29.pdf
10https://www.news18.com/news/india/govt-registers-bccc-as-level-ii-self-regulatory-body-for-non-news-tv-channels-3942218.html

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