INTRODUCTION

Søren Aabye Kierkegaard was a 19th century Danish philosopher, theologian, and cultural critic. His writings are said to have had a major influence on existentialism and on Protestant theology in the 20th century and many consider him to be the first existentialist philosopher. An abridged excerpt from his philosophical writings translates as: "Life can only be understood backwards, but it must be lived forwards".1

We cannot agree more as we bring to you the fourth edition of The Recap and the first one of 2022. The first two months of the new year have elapsed but only by looking back, recapping and contemplating its events can we understand what lies ahead in 2022 for the gaming and media & entertainment ("M&E") industries in India.

This edition covers legal updates from the months of January and February 2022 and is similar in layout to the previous editions and yet different, too. Like its predecessors, this edition is also an eclectic mix of suits, complaints, affidavits, orders and judgments. However, this edition also contains a special Budget Capsule which provides a crisp note on some key developments from the ongoing Budget Session of Parliament.

MEDIA & ENTERTAINMENT

FIR filed against Google CEO Sundar Pichai and YouTube India MD Gautam Anand in a copyright infringement case

A First Information Report ("FIR") has been registered against Google's CEO Sundar Pichai and YouTube India's MD Gautam Anand by the Mumbai Police pursuant to a Magistrate's order on a private complaint filed by producer Suneel Darshan. The producer has alleged that his 2017 film Ek Haseena Thi Ek Deewana Tha has been illegally uploaded on YouTube and that Google has allowed unauthorized persons to do so. He contends that he has not assigned the rights in his movies to anyone, and that Google and YouTube were illegally generating millions of dollars in advertising revenue. The FIR has been registered under Section 63 and Section 69 of the Copyright Act, 1957. In his order, the Magistrate observed that commercial exploitation under the garb of fair use needs to be prevented. No statement has been made yet by Google or YouTube in the matter.

You can read more on this as reported by India Today here.

Live channels on OTT apps case: TRAI files reply to petitions questioning jurisdiction

[Readers of The Recap will recall that the IndusLaw TMT team is keenly following the developments in the broadcasters v/s TRAI standoff in relation to the availability of linear channels on OTT platforms. The Recap's previous edition (January 2022) carried this story as the lead media & entertainment update. You can access a copy of the said edition here]

The Telecom Regulatory Authority of India ("TRAI") has filed its affidavit in reply to the petitions filed by the broadcasters before the Telecom Disputes Settlement and Appellate Tribunal ("TDSAT") challenging TRAI's letter seeking information about the mode and infrastructure through which linear Television ("TV") channels are being offered to broadcasters' own as well as third-party over-the- top ("OTT") platforms.

TRAI's letter to all major broadcasters was issued after TRAI received complaints from Direct-to-Home companies ("DTH") and Multi-System Operators ("MSOs") that the availability of live TV channels on OTT is denting their paid subscriber base.

While TRAI is of the opinion that such availability is in violation of Clause 5.6 Policy Guidelines for Downlinking of Television Channels 2011,2 broadcasters contend that they are not employing infrastructure regulated by TRAI to deliver linear content on OTT platforms and hence TRAI lacks jurisdiction to make such an inquiry.

In its reply, TRAI has asserted that the information is being sought from the broadcasters which are regulated by TRAI and not from OTT platforms owned by these broadcasters and thus, the appeals should be dismissed as they lack merit.

You can read more on this as reported by E4M here.

Copyright societies: new application for registration and a new tie-up

Pahari Performing Rights Association ("PPRA") has filed an application with the Copyright Office under Section 33 of the Copyright Act, 1957 for registration as a copyright society for carrying out the business of issuing or granting licenses in respect of musical and literary works. The PPRA is an association registered in Solan, Himachal Pradesh. The Copyright Office has advertised for objections/ comments from the public to be submitted on or before March 20, 2022.

Presently, the Indian Performing Right Society ("IPRS") is the only registered copyright society in India involved in the business of issuing licenses in musical works and associated literary works. In a recent development, IPRS announced that they have entered into an agreement with Glance Digital Experience ("GDE") pursuant to which GDE's entertainment and short-form content platform 'Roposo' will gain access to publishing rights for IPRS' repertoire. The deal is expected to benefit composers, lyricists and owner publishers of music in terms of exposure and royalties because of Roposo's vast user volume.

You can access the Copyright Office's public notice regarding PPRA's application here.

You can read more on the IPRS-GDE deal as reported by Economic Times here.

SC dismisses plea seeking stay on release of Alia Bhatt-starrer 'Gangubai Kathiawadi'

On February 24, 2022, the Supreme Court of India ("SC") dismissed an appeal filed against the Bombay High Court ("Bombay HC") order refusing to stay the release of Sanjay Leela Bhansali's film titled 'Gangubai Kathiawadi' ("Film"). Earlier, the petitioner, Babuji Rawji Shah, claiming to be the adopted son of Gangubai (since deceased) had filed a suit and interim application before the Bombay HC for a temporary injunction against the makers of the film citing defamation of his family members and a violation of his right to privacy, self-respect, and liberty. By its order dated July 30, 2021, the Bombay HC had refused to stay the release of the Film stating that the principle of tort, "an action dies with the person" will apply to this defamation proceeding. Aggrieved by the Bombay HC order, the petitioner moved the SC in appeal. While deciding the appeal, the SC observed there is an absence of proof to support the petitioner's claim that he is the adoptive son of the deceased Gangubai. Upholding the Bombay HC's reliance on the principle of tort, the SC further observed that mere hurting of sensibilities, when the person's reputation has not been lowered in character or credit in eyes of others would not give rise to a case of defamation.

You can access an official copy of the Bombay HC Order here.

You can access an official copy of the SC Order here.

You may also read our update on the Bombay HC Order in our first volume of Recap here.

ASCI frames advertising guidelines for virtual digital assets and services

The Advertising Standards Council of India ("ASCI") has released a twelve-point guideline for the advertising and promotion of virtual digital assets ("VDAs") and related services ("ASCI VDA Guidelines"). Some of the notable points in the ASCI VDA Guidelines are:

  • All VDA products and related services on all mediums should carry the disclaimer, "Crypto products and NFTs are unregulated and can be highly risky. There may be no regulatory recourse for any loss from such transactions".
  • Advertisements should not carry words such as "currency", "securities", "custodians", and "depositories" as consumers tend to associate these terms with regulated products.
  • Advertisements must not make statements guaranteeing future increase in profits.
  • Advertisements should contain the name of the advertiser and their contact details (phone number or email) which should be presented in a manner easily understood by consumers.
  • Minors, or someone appearing to be in a minor must not appear in an advertisement directly dealing or talking about the product and celebrities/ prominent personalities who appear in such advertisements must conduct due diligence on the truthfulness of the claims made in such advertisements.

The Guidelines will apply to advertisements of all VDAs and related services starting from April 01, 2022. For advertisements already in circulation, advertisers and media owners are required to ensure compliance by April 15, 2022. It is pertinent to note that the ASCI VDA Guidelines only mention "Virtual Digital Assets" to mean digital assets commonly referred to as crypto or Non- Fungible Tokens products and do not explicitly extend the scope of the ASCI VDA Guidelines to any other digital assets.

Surprisingly, the ASCI VDA Guidelines do not refrain VDAs from being advertised as an income or alternative employment option on the lines of a similar mandate under the 'ASCI Guidelines for Online Gaming and Real-Money Winnings'.

You can access an official copy of the ASCI guidelines here.

Centre says search engines are not 'publishers' under IT Rules 2021

The central government, through its affidavit in reply filed through the Ministry of Information & Broadcasting ("MIB"), has informed the Delhi High Court in response to a writ petition3 that search engines like Google are not 'publishers' under Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021").

The writ petition in which this clarification came relates to an FIR filed by the Central Bureau of Investigation ("CBI") in 2017 after allegations of impropriety arose in the answer-sheet scanning process of the UGC-National Eligibility Test examination of that year. The petitioner, currently working as a Director (IT & Projects) with the Central Board of Secondary Education was one of the accused named in CBI's FIR. Subsequently, when the CBI concluded the investigation, it found no wrongdoing on the petitioner's part and the closure report filed by it was accepted by the CBI court.

The petitioner filed the present writ petition seeking a direction from the court to Google India to remove all links from its search results pertaining to the CBI FIR against him with immediate effect. The petitioner claimed that his reputation has been damaged due to these links appearing in the search results and that Google India has refused to remove the links without a court order to that effect. The Union of India through the MIB was also arrayed as a respondent in the writ petition.

Responding to the petition, the MIB submitted that search engines like Google are not publishers within the definition of 'publishers' appearing under Part III of the IT Rules 2021 and are not administered by the MIB. The MIB further stated that the petitioner should have instead arrayed the Ministry of Electronics and Information Technology ("MeitY") since search engines come within the purview of MeitY and are governed by the provisions of the Information and Technology Act, 2000 ("IT Act 2000") and Part II of the IT Rules 2021.4

Broadcasters and TRAI attempt to mitigate their differences over NTO 2.0

[The Recap's previous edition (September 2021) carried the story on the on-going litigation between TRAI and broadcasting houses regarding TRAI's Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff (Second Amendment) Order, 2020. You can access a copy of the said edition here]

The Indian Broadcasting and Digital Foundation ("IBDF") has withdrawn the petition it had filed before the SC challenging the New Tariff Order ("NTO 2.0") introduced by TRAI in January 2020. IBDF has reportedly withdrawn the appeals pursuant to TRAI's assurance that it will come out with a consultation paper on NTO 2.0 and address policy grievances of multiple stakeholders. While the withdrawal has come after consultations with TRAI, IBDF has done so without prejudice to its right to raise, in future proceedings, all issues, questions of law as well as the questions of interpretation of the constitutional/statutory provisions should TRAI fail to address their concerns surrounding the NTO 2.0. The NTO 2.0 has multiple provisions which the broadcasters have found to be problematic, especially those which relate to pricing of TV channels in bouquets and on an a-la-carte basis. The broadcasters also fear that adoption of NTO 2.0 would permit TRAI to micromanage the sector more minutely.

You can read more on this development in this report by The Hindu Business Line here.

You can access the copy of the Supreme Court order here.

Click here to continue reading . . .

Footnotes

1. Søren Kierkegaard, Journalen JJ:167 (1843), Søren Kierkegaard Research Center, Copenhagen, 1997, vol. 18, page 306

2. Policy Guidelines for Downlinking of Television Channels 2011, here

3. Antariksh Johri v Union of India & Anr. [Writ Petition (civil) No. 14360/2021]

4. Part II of the IT Rules, 2021 refers to 'Due Diligence by Intermediaries and Grievance Redressal Mechanism'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.