This article is written by Kritika Kumar, Bharati Vidyapeeth (Deemed to be University) Institute of Management and Research, BBA LL. B during her internship at Le Droit India.
ABSTRACT
In the present digital era, the growing popularity of OTT platforms such as Netflix and prime video has given rise to various legal challenges and particularly intellectual property rights. Issues raised such as copyright infringement, pirating, counterfeiting, freebooting and theft. It has also questioned about the originality and the protection of creative works. Nowadays copyright-related issues like piracy have become increasingly common and constitute a substantial legal problem in today’s time and these not only create problems and losses for the entertainment industry but also for the content creators. As these platforms are not restricted to borders and thus implementation of intellectual property laws has become a challenge. This article analyses challenges and issues of intellectual property right with respect to OTT platforms and online content and how the creators rights are affected in the absence of.
COMPREHENDING COPYRIGHT IN THE ERA OF DIGITAL AGE
Copyright represents a segment of intellectual property law that provides creators of original works with the exclusive rights to utilize, reproduce, and distribute their creations for a specified duration. These creations can encompass literary works, films, music, software, and various other forms of expression. The primary objective of copyright is to reward creative efforts by providing legal protection and promoting innovation, thereby ensuring that creators can derive economic benefits from their endeavors.
In the realm of digital media, especially with the rise of Over-the-Top (OTT) platforms like Netflix, Amazon Prime Video, Disney+ Hotstar, and others, the significance of copyright has increased substantially. These platforms depend heavily on licensing agreements and the production of original content, making the protection of intellectual property crucial for their business viability. As content becomes readily available on a global scale, the risks associated with unauthorized use, duplication, or redistribution have also escalated.
In India, copyright is regulated by the Copyright Act of 1957, which delineates the types of works that can be protected and the rights granted to authors and copyright owners. These rights encompass the ability to reproduce the work, distribute copies to the public, communicate the work publicly, and create adaptations or translations. Any violation of these rights without the owner’s consent is considered an infringement.
The digital age has expanded the scope of copyrightable material while simultaneously presenting difficulties for conventional enforcement strategies. In contrast to physical media, digital content can be reproduced and disseminated at a negligible cost and on an unlimited scale.
The emergence of platforms that host user-generated content (UGC), such as YouTube and various social media sites, has further complicated the enforcement of copyright. While the creation and sharing of content have become more accessible, they also pose risks of infringing legal boundaries if not properly regulated.
On a global scale, international agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the World Intellectual Property Organization (WIPO) treaties play a vital role in establishing copyright standards and protections across different jurisdictions.
TYPES OF INFRINGEMENT IN OTT PLATFORMS AND DIGITAL CONTENT
The internet has significantly simplified access to movies, shows, music, and videos. Nevertheless, this ease of access has also led to various forms of copyright infringement, particularly on OTT platforms and other online environments. Infringement occurs when an individual utilizes a copyrighted work—such as a film or series—without obtaining permission from the copyright holder. Below are some prevalent methods through which infringement occurs in the digital realm:
- Unauthorized Uploads on Illicit Platforms
One of the most apparent forms of copyright infringement is the unauthorized uploading of complete movies or shows on platforms like Telegram channels, torrent websites, or even social media. These platforms typically lack any distribution rights yet still host and disseminate copyrighted content, resulting in significant financial losses for OTT platforms and production companies. Despite the illegality of such actions, they persist due to inadequate enforcement and the easy accessibility of these pirated sources.
- Sharing Clips and Spoiler Culture
Extracting scenes or highlights from new shows and sharing them on Instagram reels, Twitter (now X), or YouTube Shorts without permission can also constitute infringement. While many users may not have the intention to break the law, sharing even minor portions of copyrighted content without authorization infringes upon the exclusive rights of the copyright owner, particularly when it affects the commercial value or experience of the original work.
- Memes, Edits, and Fan-Created Content
With the emergence of meme culture and remix videos, users often incorporate dialogues, audio, and visuals from OTT content to produce humorous or emotional posts. Although this may appear innocuous or even supportive of the original material, it still qualifies as infringement if conducted without appropriate licensing—especially when the content is monetized or widely shared.
- Screen Recording and Redistribution
Certain users unlawfully screen-record content from paid OTT subscriptions and distribute it through WhatsApp groups, Google Drive links, or pirated applications. This approach circumvents digital rights management and undermines the integrity of the original content.
- Legal Framework and Intermediary Liability
To tackle the problem of copyright infringement, both domestic legislation and international treaties establish a comprehensive legal framework. In India, the primary statute governing copyright is the copyright act of 1957, which has undergone multiple amendments to keep pace with technological advancements, particularly in the digital age. Furthermore, the Information Technology Act of 2000 plays a significant role concerning online content and intermediary platforms such as OTT services or user-generated content sites.
a. Legal Protection Under the Copyright Act
Under the Copyright Act, the proprietor of a copyrighted work possesses a set of exclusive rights, including the rights to reproduce, publish, perform, adapt, and communicate the work to the public. Any individual who exercises these rights without permission is considered to have infringed upon the copyright. The legislation permits the owner to pursue civil remedies such as injunctions, damages, and accounting of profits, and in specific instances, even criminal sanctions like imprisonment and fines.
This legislation is also applicable to content disseminated via OTT platforms. When a film or series is produced or acquired by an OTT service, it retains the copyright or license to stream that content. Any unauthorized reproduction or distribution such as screen recording, illegal streaming, or uploading to other websites constitutes a direct breach of this protection.
b. The Role of OTT Platforms and Intermediaries
A significant legal question arises in this context: Are OTT platforms classified as intermediaries under the law?
As per Section 2(w) of the IT Act of 2000, an “intermediary” encompasses any individual who receives, stores, or transmits content on behalf of another. This definition could apply to platforms like YouTube, Facebook, or even Telegram. For These platforms, as outlined in Section 79 of the IT Act, provide a “safe harbour”—signifying that they are not liable for third-party content, provided that they:
- Do not initiate the transmission,
- Do not select the receiver,
- Do not alter the content, and
- Respond to takedown requests when notified of illegal content.
Case Laws and Judicial Interpretation
Judicial rulings have significantly influenced the enforcement of copyright in the digital realm, particularly concerning online platforms and OTT services. Courts have frequently been tasked with determining the liability of these platforms for content infringement, the extent of ‘safe harbour’ protections, and the means by which copyright holders can assert their rights. Below are several landmark cases that elucidate these matters:
a. My Space Inc. v. Super Cassettes Industries Ltd. (2016)
This case stands as one of the most pivotal Indian cases related to online copyright infringement.
Background: Super Cassettes, the owner of T-Series music, initiated legal action against My Space, a user-generated content platform, for permitting users to upload copyrighted music and videos without authorization. My Space contended that it functioned solely as an intermediary and thus bore no liability for the actions of its users.
Court’s Observation: The Delhi High Court determined that while My Space qualified as an intermediary under the IT Act, it possessed knowledge of the infringing content and neglected to take appropriate measures. Consequently, it forfeited the safe harbour protection under Section 79.
Significance: This case established that intermediaries are required to act promptly and responsibly to eliminate infringing content upon notification. A failure to do so renders them liable for infringement.
b. Phonographic Performance Ltd. v. Look part Exhibitions and Events Pvt Ltd. (2021)
Background: Phonographic Performance Ltd. (PPL), a registered copyright society in India, manages and licenses music rights on behalf of music labels. In this case, PPL sued Look part Exhibitions, a company that organized events and allegedly played copyrighted songs at a commercial exhibition without obtaining a license.
Despite being served notices, the company neither responded nor took any formal permission to use the music tracks. This led PPL to initiate legal action on the grounds of copyright infringement.
Court’s Decision: The Delhi High Court ruled in favour of PPL and held that:
Playing copyrighted music publicly without proper licensing amounts to copyright infringement under Section 51 of the Copyright Act, 1957.
The defendant’s inaction, despite clear notices, indicated wilful violation of copyright laws.
A permanent injunction was granted, preventing the defendant from playing or communicating any copyrighted content in public without permission.
Although this case dealt with offline public performance, it draws a clear parallel to digital platforms. OTT platforms like Netflix or Amazon Prime must also ensure they have proper licenses for the music, background scores, and content they stream. Just like event organizers, OTT platforms can face legal action if they stream or allow use of copyrighted music or videos without authorization. This case reinforces the principle that lack of a proper license — even if unintentional — can lead to serious consequences.
c. Shreya Singhal v. Union of India (2015)
Background: This landmark case wasn’t directly about copyright but about online speech and intermediary liability. It challenged the constitutionality of Section 66A of the Information Technology Act, 2000, which allowed the government to arrest individuals for sending “offensive” messages online.
Two girls were arrested for a Facebook post questioning the shutdown of Mumbai after a public figure’s death. The arrest caused nationwide outrage and raised questions about the misuse of online regulations and free speech.
Court’s Decision: The Supreme Court struck down Section 66A entirely, calling it vague, overly broad, and unconstitutional. The court emphasized the importance of freedom of speech under Article 19(1)(a) and held that:
- Platforms and intermediaries (like Facebook, YouTube, etc.) cannot be forced to take down content arbitrarily.
- They are only obligated to act when there’s a court order or actual legal notice of illegal content.
This judgment is crucial for OTT platforms and content-sharing websites. It established that intermediaries (like YouTube, Netflix, or even Hotstar) aren’t automatically liable for what users upload or share. They’re protected under Section 79 of the IT Act, unless they knowingly allow illegal content to stay after receiving a valid complaint or order. This means platforms must act promptly upon receiving infringement notices, but they aren’t automatically at fault for content uploaded by others.
Challenges in Enforcement
Although copyright laws are well-defined, their enforcement in the digital realm particularly on OTT platforms and online content-sharing sites presents numerous practical difficulties.
1. Speed and Scale of Digital Infringement
Once content is uploaded to the internet, it can disseminate across multiple websites, cloud storage, and social media platforms within minutes. Even if the original content is taken down, copies frequently continue to circulate. This creates a scenario where enforcement becomes a race against time, with legal actions often trailing behind technological advancements.
2. Anonymity and Jurisdiction Issues
Infringers frequently utilize false identities, VPNs, and offshore servers to conceal their locations. This complicates the process of identifying the actual individuals or entities responsible for illegal uploads. Numerous piracy websites are managed from countries that lack robust copyright enforcement or collaboration with Indian authorities, which restricts the effectiveness of court orders.
3. Limited Technological Capability
While tools such as digital watermarking, content ID systems, and AI-driven tracking are available, many copyright holders, particularly smaller creators, do not have access to these technologies. Consequently, consistent monitoring becomes costly and impractical for many.
4. Lack of Awareness
A significant number of users, especially those sharing memes, reels, or edits, are often unaware that their actions could infringe upon copyright law. This leads to widespread unintentional violations, especially on platforms like YouTube, Instagram, and Telegram.
These challenges illustrate that although a legal framework exists, effective enforcement necessitates a blend of technology, international collaboration, and public awareness.
CONCLUSION
The rapid growth of OTT platforms and online content-sharing networks has transformed the way media is consumed; however, it has also heightened the risk of copyright violations. Although the legal framework established by the Indian Copyright Act of 1957 and the Information Technology Act of 2000 offers essential protections, enforcement in the digital landscape is still complicated. Courts have intervened to clarify intermediary liability and establish guidelines for content removal, yet the constantly changing nature of technology renders reactive enforcement inadequate. Addressing infringement on OTT platforms necessitates a comprehensive strategy enhancing legal frameworks, implementing digital tracking technologies, increasing user awareness, and promoting international collaboration. Platforms must fulfill their responsibilities as stakeholders by actively preventing misuse, while both creators and users need to comprehend their legal limits. As content continues to traverse borders and formats, the law must adapt to strike a balance between protection and innovation.
Ultimately, safeguarding intellectual property in the digital era is not merely a legal obligation but also a commitment to creativity and maintaining a fair, ethical digital environment. Future reforms both legal and technological should emphasize this balance to ensure that copyright law remains pertinent and strong in the streaming age.
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