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    Content regulation is outside TRAI’s jurisdiction: Broadcast Industry Associations respond to TRAI’s Broadcast Policy consultation

    A vast majority of the issues raised under the National Broadcasting Policy consultation go beyond the scope of the Telecom Regulatory Authority of India (TRAI), the Indian Broadcasting and Digital Foundation (IBDF) pointed out in its comments responding to the consultation. IBDF’s submission states that content is beyond the scope of TRAI’s jurisdiction and TRAI has itself acknowledged this in various explanatory memoranda to its regulations and consultation papers.

    Similarly, over-the-top (OTT) services (which include streaming services like Netflix and JioCinema) are also outside TRAI’s scope. While the TRAI Act allows the regulator to make recommendations on the introduction of a new service provider (either by itself or on request by the government), the term service provider has been defined as — “the Government as a service provider and includes a licensee.” OTTs do not require a license, IBDF argues, adding that the “meaning of the term ‘service provider’ cannot be enlarged to include services that are not envisioned within the scope of the TRAI Act.” It also argues against the inclusion of OTTs under the definition of broadcasting, saying that OTTs are distinctly different from broadcasting because of differences in: the timing of content availability; the varied settings in which consumers engage with content; and the distinct methods of content delivery.

    Other broadcast industry associations, namely, the Producers Guild of India, the Asia Video Industry Association (AVIA), and the News Broadcasters and Digital Association (NBDA) all agree that OTT platforms should not be included in the policy.

    Key concerns raised by industry bodies:

    What about other consultations that haven’t yielded any results?

    NBDA argues that it has dedicated substantial resources and time to respond to several previous consultations such as the ones on regulatory convergence, regulation of OTT services and selective banning, and the consultation on the draft Broadcasting Services Regulation Bill, 2023. However, none of these have resulted in any recommendations. “It would be pertinent that the intellectual capital invested to respond to the aforesaid consultations must also be taken into account and factored in while formulating/recommending upon the NBP [National Broadcasting Policy],” it says, adding that without this, the consultation process would become a shallow exercise. The association requests TRAI to consider the submissions made in response to the other consultations as well.

    What did TRAI do with inputs from the pre-consultation stage?

    IBDF makes a similar point arguing that it participated in the pre-consultation process for the Broadcasting Policy. TRAI has, however, not considered nor dealt with stakeholder inputs from the earlier pre-consultation stage. It also emphasizes that TRAI has not disclosed the reference letter received by the regulator, which forms the basis of the paper. “This is in stark contrast to a longstanding practice of the TRAI disclosing the reference letters of the MIB or other Ministries in relevant annexures to the CP,” IBDF says, pointing out that the reference letter was also absent from the pre-consultation paper.

    The policy is being made to align with the draft broadcast bill:

    IBDF argues that usually, the process of framing the policy has to be completed before introducing legislation. This is because the policy lays the foundation for the legislation. “However, in this case, the Draft Bill was brought out before the consultation process on the NBP is complete, and it appears that the NBP is being framed in a manner to align it to the Draft Bill [emphasis ours],” it explains.

    Don’t prescribe any Indian content quotas on OTTs:

    The consultation paper asks how India should be turned into a global content hub and what should be done to promote Indian content on OTT platforms. Responding to this, AVIA argues that it would be a bad idea to set any content quotas for a certain percentage of content being displayed on OTT platforms to be Indian. It argues that research has shown that content quotas can “work against the goal of increasing investment as it can instead lead to local content industries that are less innovative, producing lower-quality content.” Research has also shown that the more stringent the protectionist policy is, there may be a parallel reduction in the export of audio-visual products. It says that in countries where local content has successfully been developed and exported, the government makes substantial investments in the industry.

    Broadcasting and telecom regulations should not be converged:

    Convergence is a technological construct, NBDA explains, but telecom, information technology, and broadcasting are not similarly placed services and cannot be regulated through a converged framework. It points to the Ministry of Information and Broadcasting (MIB) has in the past recognized that “regulation of content requires separate skill sets of creative and artistic persons than that of technocrats or economists who can factor the impact of content on sensibilities, morals, and the value system of the society.”

    AVIA argues that if the content and carriage regulations were converged, it could bring about complex issues for consumers. “This could include issues such as a limitation of choice as services become more bundled and thus limited; a lack of pricing transparency; downgraded service quality; and concerns around data privacy as companies may have increased access to information about consumer usage patterns and preferences,” it explains.

    The government should champion the unfettered creation of content for OTTs:

    Allowing unfettered creation of OTT content, the Producers Guild of India says, would allow a wide array of Indian shows and stories to attract audiences across the world. “This is particularly important given the highly competitive global environment where we are competing with Korean, Spanish, Turkish, and a host of other content providers for the audiences’ attention,” it explains. It adds that in its submission to the MIB, it had pointed out the necessity of “a balanced approach while framing any legislations especially which grant the power to prohibit the dissemination of content over OTT platforms.” It briefly mentions some of the issues it highlighted in its submission to the MIB which include—

    • The ambit of freedom of speech and expression is ever-evolving with technological advancements and includes all modes/mediums of communication including broadcasting as well as streaming services.
    • Restrictive provisions of the bill that have been left open-ended (to be prescribed later) will hinder the ease of conducting business and reduce the opportunities and scale of operations for streaming services in the Indian content market. This is worrisome for producers since it can lead to OTTs pulling away from the Indian content space due to censorship issues. It could also result in the OTT platforms becoming more restrictive in nature, which can result in a substantial reduction in the volume of content being created, thus disincentivizing the producers from exploring a lot of creative topics and concepts.

    There is no need for a government-prescribed audience measurement mechanism:

    The paper proposes an expansion of the scope of TV audience measurement mechanisms to cross-platform audience measurement that also includes OTTs. AVIA argues that the government’s existing guidelines substantively address audience measurement for TV broadcasts. For other services (like OTTs), there are already a variety of methods used for audience measurement like cost per view, monthly active users, and cost per minute. Given that a range of these methods are already being used, there is no need for homogenization or cross-referencing audience measurement techniques with TV.

    The policy should not prescribe any public service obligations on private broadcasters and OTTs:

    AVIA explains that content producers respond to consumer demand for plural and diverse content. It explains that there should not be an inorganic requirement to mandatorily allocate and invest resources toward meeting the public broadcaster’s objectives. Such a mandate can diminish the creative autonomy of private broadcasters and also limit their ability to cater to the diverse needs of consumers.

    The consultation proposes that OTTs could be asked to carry DD channels to promote Indian content. The MIB has also sought to introduce a similar obligation under the draft bill. These mandates violate the fundamental rights of these platforms as present under 19(1)(a) of the Indian Constitution, IBDF explains. Carrying DD channels would constitute ‘compelled speech’ which is an infringement of the right to freedom of speech and expression, given its interference with their editorial discretion. It also violates their fundamental rights under 19(1)(g) of the constitution since this requirement to telecast specified content “would amount to the TV channel cutting into its business time and the OTT platforms cutting into its business space.”

    The consultation paper references Prasar Bharati’s MoU to carry DD channels abroad as an instance of a voluntary licensing agreement. In line with this, IBDF argues that “any agreement between private services and the public broadcaster should be negotiated on terms that are fair, reasonable, and non-discriminatory, consistent with global practices.”

    How can content piracy online be reduced?

    Producers Guild of India suggests the following steps—

    • Implementing digital rights management (DRM) technologies to protect content from unauthorized access and distribution.
    • Using content monitoring systems like Markscan and VdoCipher to track instances of piracy across digital platforms. However, given the sheer volume of online content, pirated Indian films and shows often end up on social media platforms. India can explore partnerships with global providers of content monitoring solutions (like Friend MTS which allows for real-time monitoring to identify pirated content online) to enhance anti-piracy efforts.


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    The post Content regulation is outside TRAI’s jurisdiction: Broadcast Industry Associations respond to TRAI’s Broadcast Policy consultation appeared first on MediaNama.

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