This article has been written by Shubham Jadia, a student of Indore Institute of Law

ABSTRACT

The global media and entertainment industry is currently undergoing rapid changes, largely driven by new technologies like the internet, digital broadcasting and online publishing. The convergence of market forces is increasingly escalating the complexity of managing intellectual property core of an enterprise’s revenue engine. To remain competitive and profitable in this digital age, media companies need to cope with intensifying technical complexities while efficiently managing their intellectual property rights. 

During the last decade, the Indian entertainment industry has come a long way ranging from new avenues of content commercialization, to sophistication in licensing content. In today’s digital and information age, it is well understood and accepted that content owner is supreme. While a plethora of business opportunities are available to content owners and creators, capitalizing on the said opportunities require an insight into entertainment business, expertise in copyright and several other laws, knowledge of modern technology and awareness of transactions in the industry.

Further, digital media and contents are frequently pirated in India. Cases pertaining to these digital contents of entertainment industry are also rising in India. This has posed many novel technical and legal challenges before the entertainment and media industry of India. A very strange trend in the Asian countries, especially India, regarding entertainment, media and film industry related disputes is that they are essentially resolved through traditional litigation methods. There is hardly any use of alternative dispute resolution (ADR) or online dispute resolution (ODR) methods to resolve such disputes.

Keywords:

Intellectual Property Rights (IPR), Alternate Dispute Resolution (ADR), Online Dispute Resolution (ODR), Copyright and Digital Broadcasting.

Entertainment and Media Industry Growth and Challenges in India

Entertainment and media industries are growing at a fast rate. India’s media and entertainment industry is projected to grow by 18 per cent over the next five years and is expected to become a1.157 trillion industry by 2012. With this growth there are also increasing cases of disputes aswell. A majority of these disputes pertain to intellectual property rights (IPRs) issues. Similarly, online entertainment is the next big thing for studios and broadcasters. The biggest changes are expected in the Internet, television distribution, video games and casinos sectors. Although this growth and development is happening in many countries yet a majority of this growth is expected from “BRIC” countries, i.e. Brazil, Russia, India and China. Undoubtedly, the huge markets of China and India are leading that growth. We need to consider the legal challenges, with reference to IPRs, to fully benefit it from the growth of entertainment and film /media industry. Indian media and entertainment industry may face the legal challenges of IPRs laws and cyber law of India. IPRs laws like copyright, trademark, etc. may be frequently violated and occasionally invoked to redress IPRs violations of media and entertainment industry in India. Similarly, online IPRs issues like domain name disputes may also be agitated in the future.

Similarly, media and entertainment industry must keep in mind the mandates like “due diligence” and other provisions of Information Technology Act, 2000.

 Media and entertainment industry will also face technological challenges in future. For instance, the issues pertaining to digital preservation of entertainment industry products may assume significance in future. This requires a domain specific and techno-legal expertise that India may not currently possess. This situation requires a shift in the academic and professional education in India that needs to be suitably adopted keeping in mind the contemporary needs.

Dispute Prevention and Resolution in The Film And Media Industry

Film and Media Industry of India is heading towards a great growth. At the same time Film and Media Industry is also facing issues of Piracy, Copyright Violations, etc. New Digital and Technological Measures have been adopted to prevent unauthorized and illegal use of works of Film and Media Industry. In fact, India has been planning to formulate laws on the line of Digital Millennium Copyright Act (DMCA). However, Film and Media Industry of India cannot be protected unless we adopt Techno Legal Measures to prevent unauthorized use and distribution of their works.

Film and Media Industry of India is also frequently found in disputes with other for violation of its Legal and Intellectual Property Rights (IPRs). The traditional methods of Litigation in India are not very encouraging. We have to device methods like Alternative Dispute resolution (ADR)and Online Dispute Resolution (ODR).At the International level, the World Intellectual Property Organisation (WIPO) has been providing world class Dispute Resolution Services for long. One such Service is known as WIPO Mediation and Expedited Arbitration for Film and Media. Surprisingly, Asian Film and Media Industry are not considering utilising the Services of WIPO in this regard. They are still taking their disputes before traditional Courts.

A great deal of ADR and ODR Disputes are “Referred” by Law Firms and Practicing Legal Professionals. They incorporate suitable “ADR and ODR Clauses” in the Technology Agreements, Film and entertainment r 

elated  Agreements, etc. If these Firms and Professionals do not incorporate proper Arbitration Clause, a Dispute can never reach to International Organizations and would land up in a Court of Law.

However, WIPO’s Mediation and Expedited Arbitration for Film and Media initiative cannot succeed till it is a part of “Holistic Effort” comprising of Law Firms and Professionals spread all over the globe.

Legal Issues of Entertainment and Media Industry In India

Media and entertainment industry of India is heading towards a big growth rate. Entertainment and media industry growth and challenges in India are also well known. Legal frameworks in this regard are in the process of improvement and modification in India. Legal issues of media and entertainment industry of India are too diverse and wide to be discussed in a single article. This piece is covering some of the basic level legal issues of media and entertainment industry of India. Indian media and entertainment industry may face the legal challenges of Intellectual Property rights (IPRs) laws and cyber law of India. IPRs laws like copyright, trademark, etc may be frequently violated and occasionally invoked to redress IPRs violations of media and entertainment industry in India. Similarly, online IPRs issues like domain name disputes may also be agitated in the future. Similarly, media and entertainment industry must keep in mind the mandates like “cyber due diligence” and other provisions of Information Technology Act, 2000.

Media and entertainment industry will also face technological challenges in future. For instance, the issues pertaining to digital preservation of entertainment industry products may assume significance in future.

Surprisingly, Asian Film and Media Industry are not considering utilising the Services of WIPO in this regard. Asian companies prefer to utilise tradition litigations methods instead of alternative dispute resolution (ADR) or online dispute resolution (ODR).

The Entertainment Law or Media Law is a set of relevant laws, rules, policies, and regulations, formed for provided necessary legal services to people, agencies, companies, institutions, and organizations of the entertainment industry on the whole. It applies to the entertainment media of all types including Film Industry, Television, Music, Advertisement, Internet, Publishing, and other industries in connection with these. 

The ambit of Entertainment Law is quite extensive, and encompasses the fields of Intellectual Property Law; Corporate Law; Project Finance; Labour and Employment Law; Bankruptcy Law; Immigration Law; Taxation Law; Insurance Law; Securities Law; Civil and Criminal Laws; Business and Commercial Law; and Real Estate Law. However, in real practice, it is observed that majority of the legal services for media and entertainment fall under the two categories -Transactional services, and Litigation services. Our full-fledged globally famous legal organization, Global Jurix, provides entertainment media law services for matters, disputes, and litigations relating to all these fields of entertainment law, in India and abroad.

Entertainment Media Law Services

Many media law services across the world provide entertainment media law services, for the following categories:

• Intellectual Property matters, disputes, and litigations (arising out of Copyright, Trademark, or Infringement on these)
• Real Estate and Corporate Issues
• Labour and Employment
• Contracts and Agreements
• Compliance under all Governmental and Regulatory Authorities
• Advertisement and Publicity
• Broadcasting
• Corporate Finance
• Privacy
• Defamation and Contempt
• Confidentiality or Breach in it
• Taxation
• Insurance 
• Negotiations, Mediations, and Litigations
• Establishment of Production House, Film Studio, or TV Channel

Other Important Regulatory Changes Impacting The Media And Entertainment Sector

1. The Copyright Office allows online submission of the literary, artistic and dramatic work-related document 

The Copyright Office vide an Order dated January 17, 2019 has allowed applicants to upload soft copies of literary, artistic and dramatic work related documents on its online portal. This move has been initiated to facilitate seamless registration of works. In addition, a manual explaining the process to upload an applicant’s documents has been showcased on the website of Copyright Office. The documents can be uploaded in their original colour scheme after paying the requisite fees. 

2. MIB constitutes three member committee for implementation of Supreme Court guidelines on content regulation of government advertising 

The MIB in compliance with the Supreme Court of India’s directions dated May 13, 2015 has constituted a three member committee to address the issues related to content regulation in government advertising. As per the terms of reference, the committee would address complaints from the general public of violation on the implementation of the guidelines set out by Supreme Court. The committee would also take suo motu cognizance of any violation / deviation of the guidelines of Supreme Court and recommend corrective action to the Ministry / Department. 

3. The Delhi High Court passes an Order on global take-down orders 

The Delhi High Court in an Order dated October 23, 2019 in “Swami Ramdev & Anr v. Facebook & Ors” affirmed that Indian Courts can issue global take-down orders to internet intermediaries like Facebook, Google and Twitter for illegal content published by users of their platforms. The Court held that once content was uploaded ‘from India’ and was made available globally, the removal of such content shall also be world-wide and not just restricted to India. The Court ordered the intermediaries to take down the content globally, provided they were uploaded from India. For contents that are uploaded from outside India, the Court ordered platforms to ensure that they use appropriate geo-blocking measures, so that users having Indian IP addresses were unable to access the content. 

4. TRAI issued a Consultation Paper on Cloud Services 

In response to a request by the Department of Telecommunication, TRAI has issued a Consultation Paper on Cloud Services dated October 23, 2019 to seek comments on the terms and conditions of industry body, eligibility, entry fee, period of registration and governance structure. This comes subsequent to recommendations issued by TRAI on ‘Cloud Services’ in August 2017 which covered the legal and regulatory framework for the services, provided a comprehensive framework for data protection, interoperability and portability etc.

CONCLUSION

By carefully crafting the personal service agreements and distribution agreements to provide for careful exploitation of the intellectual property rights and clearly aggregating the power to exploit the rights in the production company, a producer can develop projects that can transcend their initial medium to enter the audience’s collective consciousness around the globe. Through the careful construction of the contracts with the creative parties, the production company can develop projects that have potential to last for decades, engendering works in many media and creating series that delight audiences over and over again. Effective use of trademarks, trade secrets, publicity rights, patents and copyright will provide the infrastructure for the various entertainment industries. These legal protections do not define the success or failure of a project but they play a key role in monetizing the success of the projects and developing revenue streams from projects that last from production to production and turn books into the series. The projects that grow exponentially from a single book to a juggernaut of film, music, books and games, often best reflect what the audiences want– an opportunity to be entertained and delighted by characters, stories and artistry, both familiar and new. Only artists make this possible but the legal techniques empower them to achieve these dreams.

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