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    Convergence, Piracy and Content Regulation: Important Issues Discussed at TRAI Open House

    “The issue of online piracy is one of the key concerns that the recorded music industry is facing today,” said Jenil Shah, Assistant Manager (Legal) at the Indian Music Industry. He referred to the The Cinematograph (Amendment) Act, 2023 which gave power to specific nodal officers to enforce copyright protections online and recommended a similar administrative body to tackle online music piracy. He also criticised the principle of safe harbour for digital intermediaries, which protects them from being considered liable for the actions of users and stated, “Online piracy is shifting towards social media platforms and what we see is that various social media platforms claim intermediary liability protections although they perform functions beyond a mere intermediary.” He also asked the policy to restrict itself to traditional broadcasting, defined technically, and any other interpretation of broadcasting established under international copyright laws should be respected. 

    Conversely, Nikhil Pahwa, Editor of Medianama, stated that ISPs and online intermediaries being held liable for users uploading pirated content on their platforms was problematic. “It effectively destroys safe harbour for the internet and safe harbour is extremely critical for the healthy functioning of the internet. It protects telecom operators, ISPs and stakeholders for liability from the actions of users. There are already due diligence requirements under Sec 79A in place.” He urged the authorities to ignore any proposals to remove safe harbour for the internet.

    These comments were made during an Open House Discussion hosted by the Telecom Regulatory Authority of India (TRAI), discussing the regulatory body’s inputs for the National Broadcasting Policy (NBP). 

    Should OTTs be included in the NBP?

    TRAI in its consultation paper had defined broadcasting as, “any form of programmes like films, music and animated shows that are broadcast to a larger audience base simultaneously using different mediums/platforms and made available on various devices.” This broad definition would include OTT platforms, something they refer to multiple times throughout the paper.

    However, many stakeholders objected to the possible inclusion of OTT platforms in the NBP. Gururaja Rao, Principle Legal Counsel at Sony Pictures Network argued, “The inclusion of Online Curated Content Providers (OCCP) within the policy would not only result in immense confusion in a well settled environment but also make the entire ecosystem of digital media counterproductive.”

    “TV broadcasting is distinct from OCCPs, as it uses satellites and needs Distribution Platform Operators (DPOs) to transmit content,” he said. “We submit that OTT platforms should not be part of the policy. The MIB should let the MeitY take the first steps in setting out principles and a rule-based approach.”

    Similar objections were raised by Debashish Bhattacharya, senior Deputy Director General of the Broadband India Forum. “The authority should restrict the scope of the policy to the broadcasting segment alone. OTT services that are not part of the system should be kept separate from the broadcasting policy as they are functionally different,” he suggested. Other corporate advocacy groups like the Asia Video Industry Association (AVIA), FICCI, ASSOCHAM, NASSCOM and IAMAI have also adopted a similar stance.

    Convergence:

    The consultation paper also broached the topic of regulatory convergence. It stated – “The technological advancements, primarily the convergence of content and devices require attention of policy makers and regulatory regime. Today, the same content is available on television, smart connected screens as well as smartphones. Owing to the difference in the distribution mechanism on these platforms, they pose a regulatory challenge.” This issue was brought up last year as well, when the TRAI released a consultation paper on regulatory convergence, which discussed the possibility of a single regulatory framework being used for different services like telecom, broadband and the internet. Medianama has previously pointed out the issues with such a proposal, especially its potential to stifle online innovation.

    “We are living in a converged scenario,” said Rahul Vatts, the Chief Regulatory Officer of Bharti Airtel. “We need to understand that different technologies are delivering the same customer experience and the content consumption is also similar across devices.” He pointed out that a convergence of technologies was not accompanied by a convergence of regulations and alleged that this led to violations of must carry norms, downlinking policy and cross holding restrictions.

    Vatts argued for the inclusion of broadband delivered broadcast content and applications under DoT and TRAI regulations under the MIB. He also critiqued the traditional classification of DTH as a ‘push’ service and OTT as ‘pull’ as the content could be watched through different mediums today. He asked for regulatory parity across mediums regardless of underlying technology. 

    Mahesh Uppal, Director at Com First, a communications consulting organisation, had a different opinion. “While digital infrastructure today has the property of convergence in the sense that it is able to support telephony, internet and broadcasting,” said Mr. Uppal, “Just because the digital infrastructure is the same does not mean that the functions have converged. The functions that the infrastructure allows them to perform are very different. It does not follow from the fact that there is common infrastructure that there should be common regulation.”

    Nikhil Pahwa concurred. Stating that there was actually no convergence. He said, “Convergence is an idea that was being talked about in the early 2000s. Those of us who are building businesses on the internet do not see any convergence happening.” He also emphasised the TRAI’s historical role in unbundling the three services – digital, telecom and broadcasting. “It is this unbundling that has enabled growth. To treat three separate industries with the same regulatory framework is flawed,” he argued. “It is a fact that telecom is regulated separately from the internet, which enables the internet to flourish and not be bogged down by the regulatory considerations and limitations that telecom has.”

    “I would request that we put these ideas of convergence into the dustbin. It’s a historical conversation that never bore fruit,” he concluded.

    Regulating and Promoting Content:

    Pahwa criticised any attempt at regulating the content of online streaming services. “We should remember that streaming services are effectively one-to-one communication, not communication to the public. Content regulation should not come under the ambit of any regulator when it is private content” he explained. 

    He brought up the Kamlesh Vaswani case in the Supreme Court where Attorney General Mukul Rohatgi argued against banning pornography as it was being viewed privately and the government did not wish to control what people viewed in the privacy of their homes. Therefore, content on online streaming services, which was similarly viewed privately, should not be regulated. 

    “My suggestion is that online streaming services should not only be kept outside the ambit of the broadcast policy, they should also not be regulated under the IT Rules as they are unconstitutional as it stands today” he declared.

    The consultation paper had also asked for strategies on promoting Indian content, to which Mr. Pahwa argued that content creators required safe spaces and asked the government to “stop becoming a nanny state and give people the freedom to create the content they want.” He also asked for the rolling back of the broadcast court, reduction in the moral policing that happens in television and hoped that it does not extend to the internet. He also encouraged public broadcasters to take a copyleft approach towards their content and make it available for free online.

    Why were there no counter comments?

    TRAI had declined to accept counter-comments on the consultation paper, stating “It may be noted that no counter-comments are being invited in this Consultation Paper, as this paper intends formulation of inputs for the broadcasting policy.” This was a notable departure from TRAI’s regular practice. Pahwa stated that he hoped this would not become the norm. “Counter comments enable a public debate and researchers, alongside people who want to understand the ecosystem, can read both comments and counter-comments to understand the issues better.” He requested TRAI to resume their old practice.

    How can the industry provide for people with disabilities?

    Harish Kotian, representative of a disability rights organisation called Access India raised the issue of content accessibility. He asked for a separate channel with audio descriptions for the benefit of visually impaired people. “I also want manufacturers to manufacture equipment taking into consideration accessibility requirements and the needs of disabled persons,” he stated. 

    He also pointed out that most set top boxes could not be used easily by people with visual disabilities. “The Rights of Persons With Disabilities Act (2016) states that persons with disability also have the right to equal living and should be able to participate in the same affairs like entertainment or information. We are denied this aspect,” he said. 

    Most set-top boxes and apps are hardly accessible for people with disabilities and very few broadcasters and OTT platforms carry audio descriptions alongside their content. “It is very necessary that providers understand the need and also the legal mandates to make content accessible and friendly to consume. TRAI should play its role in enforcing these rules. The Rights of Persons With Disabilities Act came out in 2016 and three years time was given for its implementation – so it’s long overdue,” he said “I would urge very strongly that TRAI take it up.”

    Can DTH Operators Survive Into The Future?

    “The entire viability and financial health of DTH operators is a huge concern,” said Rahul Vatts, the Chief Regulatory Officer of Bharti Airtel “There is a decline in viewership – there has been a  fall of over 10 million connections for us from 2019 to 2023. We are facing difficult times – there are increased costs, constant declines in revenues, there is push from the government to have localised set-top boxes and we are being burdened with a lot of regulatory obligations.”

    A 2023 industry report from E&Y on the Indian Media and Entertainment sector revealed that linear television viewership declined by 7% in 2021, but rose by a measly 2% the following year. Meanwhile 19 to 20 million smart TVs connected to the internet each week in 2023, up from around 10 million in 2022.

    TRAI has extended the deadline for submission of additional comments until the 22nd of May.

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    The post Convergence, Piracy and Content Regulation: Important Issues Discussed at TRAI Open House appeared first on MEDIANAMA.

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