By Sidharth Chopra and Nandita Saikia

The practice of determining the legality of a publication based on its ownership and on the nature of its contents has existed for almost as long as recordable communication has existed. We are, of course, no longer confined to the basic forms of communication such as the written word, and content laws, once unabashedly censorship laws, now govern everything from books to videos and gifs.

Most of these laws are not of recent vintage and, so, old laws have often been forced to contend with new technologies and modes of ownership which are alien to them.

Solutions have, from time to time, been proposed to make laws, evolving social norms, and advancing technologies compatible with each other but these solutions have tended to refer to specific factual matrices instead of requiring that the structure of the law itself be changed to deal with changing times. Due to this, whether or not a video is legally accessible in India depends on a complex web of legal regulation.

The Nature of Content and Rights-Owner Consent for Publication

Recent discussions about banning specific video-sharing apps highlight the tension between technology, our social values, and the law. There have been fears about the proliferation of pornography, and the effects of apps.

Amongst the questions which video-sharing apps raise are: Who should be protected from specific content? On what basis should that determination be made? What standards and nature of evidence are required to establish the propensity for harm? What makes one manifestation of technology (or app) liable to be made inaccessible but not another? Does the socio-economic class of users play a role in the perception of potential harm which an app could cause?

In the context of music, Napster once allowed downloading of music through the use of peer-to-peer file sharing technology. In a very short span of time, it not only became extremely popular amongst consumers and but also a headache for music rights companies. The service was finally shut down pursuant to a court order which held that its predominant purpose was to enable the unauthorised downloading of music which made it liable for contributory copyright infringement.

A similar line of thought was echoed in a recent judgment of the Delhi High Court which held that primarily-infringing websites, including those which are hydra-headed (popping up with minor alphanumeric variations that could circumvent initial blocking orders), may be blocked. “In the opinion of this Court, while blocking is antithetical to efforts to preserve a ― free and open Internet, it does not mean that every website should be freely accessible,” Manmohan, J wrote, continuing, “Even the most vocal supporters of Internet freedom recognize that it is legitimate to remove or limit access to some materials online, such as sites that facilitate child pornography and terrorism. Undoubtedly, there is a serious concern associated with blocking orders that it may prevent access to legitimate content. There is need for a balance in approach and policies to avoid unnecessary cost or impact on other interests and rights. Consequently, the onus is on the right holders to prove to the satisfaction of the Court that each website they want to block is primarily  facilitating wide spread copyright infringement.”

In the context of the ownership-related issue of copyright infringement, the answer to challenges posed by new technologies lies in determining their predominant purpose. The situation is not as clear-cut when it comes to content-related issues independent of ownership which new technologies pose, and we are still grappling with the issues involved in such cases.

The spectres of child pornography, as indecent images of children are referred to, and terrorism have often been invoked but it is not entirely clear how to deal with them. There is no convincing legal or moral defence of such content which is possible. Nonetheless, we do not appear to have the evidence to be able to conclusively determine the effect of banning platforms on which such content proliferates.

Is it preferable to ban the platform itself and possibly push indefensible content into the dark recesses of the Web where victims would be less visible and more difficult to aid, or is it preferable to focus on cleaning up the content when it becomes visible on accessible platforms? These are not easy questions to answer and research suggests that the answers could sometimes be counter-intuitive.

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Protecting National Interests

When one focuses on ownership-related issues, there are signs that even if the copyright title chain (as it is called) is clear, the law may at some point be supplemented by additional requirements beyond the current broadcast licensing regime. The publication of videos could be restricted not only at the discretion of rights-owners but also depending on whether or not the owners can be classed as being Indian in the eyes of the State.

Concerns have been raised about the possibility of video streaming services becoming unable to make content available to consumers in India on account of a loophole in India’s proposed eCommerce policy which was made available on 23 February 2019 coupled with a clarification to the country’s FDI policy issued on 26 December 2018. These two policies could essentially turn companies into platforms for sale of others’ products and prevent them from selling their own products or content on their own platforms. And that could give rise to a legal glitch in the provision of streaming services since a great deal of the content they make available is owned by themselves.

The concern, however, seems misplaced and based on a combination of a rather superficial reading of the law and a fundamental misunderstanding of how streaming services tend to operate. The draft eCommerce policy does not explicitly deal with streaming services while the FDI Policy Circular defines eCommerce, right at the outset, to mean ‘buying and selling of goods and services including digital products over digital & electronic network’ alone.

As a general rule, in practice, streaming services do not sell digital products to end users. Instead, they licence them through the mechanisms of copyright law for specific purposes, and users — the final audience — can only legally access and enjoy content by adhering to the terms of the relevant licence.

Under copyright law, a sale is in no way comparable to a licence. Sales are referred to as assignments, and result in the transfer of ownership to the buyer. Licences, on the other hand, do not vest ownership in the buyer, and the buyer may only enjoy the licenced content in a manner permitted by the licensor. This mode of dealing with digital products through licences does not fall within the scope of the Consolidated FDI Policy due to its limited definition of eCommerce.

As such, there is probably no well-founded fear that streaming services would become unavailable in the near future. Nonetheless, there remain questions worth engaging with about whether licensing digital content instead of selling it is fair, what the rights of users are, what would happen if the various licensors were to shut down, and whether protectionism is appropriate.

Addressing Legitimate Concerns

The conflict between technology and social values of the society is not new. The march of technology has consistently challenged the status quo. Every technology is capable of being used in a manner that is either benign or toxic. Email gave rise to spam, credit cards to credit-card fraud, photocopiers to large-scale copyright infringement, and social media to unrestrained trolling. That hardly means that email, credit cards, photocopiers, or SocMed should be disposed of in their entirety. On the contrary, it means that new technologies require the law to adapt to deal with the new problems they give rise to.

The issues which most insistently demand our attention at the moment seem to have at their heart preserving our moral compass (by doing such things as eradicating child pornography) and protecting our national identity (by putting Indians first). Inane law is not much more than a cover under which issues which we have strong feelings about are being dealt with.

In the circumstances, issues of data protection and the algorithmic suppression of speech are pressing concerns which, if handled badly, have the potential to significantly disadvantage all of us. There are concerns about free speech possibly being curtailed, how suggested data localisation would affect the field, whether consumer data can legitimately be treated as a national resource given the likely co-option of individual consent, and how using artificial intelligence to crack down on illegal content is workable given the current state of technology.

A society’s understandable eagerness to preserve its social values and culture should not come in the way of technological advancement although it is equally true that there are facets of culture that should not be sidelined by technology. Just because the technology to enable child pornography to proliferate exists, for example, there is absolutely no case for allowing it to do so. However, not all issues are as black and white as those which involve child pornography especially when it features real children, and there remain a multitude of other issues we must engage with.

While fashioning a response to challenges posed by technological advancement, the response has to be proportionate allowing what is necessary to create a balance between advancement of technology without diluting our social values. The balancing act is of utmost importance to ensure that we do not end up compromising the interests of future generations or, for that matter, ourselves!

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About the authors: Sidharth Chopra and Nandita Saikia, have advised a number of companies in the eCommerce and media realm on issues of law and legal policy. The opinions contained in this article are their own.

Note: This article also appeared in LiveLaw, here.