[This post is authored by Tanishka Goswami. Tanishka is an advocate at the High Court of MP. She graduated from National Law University, Delhi in 2023 & enjoys reading and writing on copyright laws. Her previous posts can be accessed here.]
Though a recipient of widespread international popularity for its cost-effectiveness in accessing varied entertainment, news and sports content, the use of IPTV technology has always been clouded by legal challenges. One of these challenges pertain to piracy and illegal transmission that infringe the copyright held by an author or reproduction rights of a broadcaster. Such a factual matrix was addressed by the Delhi HC earlier this month in Star India Pvt. Ltd. v IPTV Smarter Pro & Ors.
Herein, Star India alleged that rogue streaming apps such as IPTV Smarters Pro undermine the value of its intellectual property in the original entertainment, sports content, etc. that is broadcasted on its OTT platforms, Disney+ Hotstar and JioCinema. The latter can be accessed through iOS and Android devices, and make use of Star India’s works and logo to attract audience. Hence, through their operational frameworks, the platforms complained of were alleged to infringe the copyright, and broadcasting rights held by Star India. In this light, I focus on: one, the relevance of copyright law for live broadcasting and streaming platforms; and two, the utility of digital rights management (“DRM”) and strong policy frameworks in safeguarding broadcasters and copyright owners.
Copyright Infringement by Streaming Platforms: How does IPTV Smarters work?
IPTV Smarters Pro is a media streaming application that supports smart TVs, Android, iOS, Windows, and other platforms in providing consumers/end-users the ability to stream live TV, entertainment and sports content, etc. Users may download the IPTV Smarters Pro application (also referred to as a media/video player in the judgement) and register their accounts for availing the service. The application relies on the IPTV technology (Internet Protocol over Television) which provides delivery of audio/visual/graphic/textual data over IP-based networks. Legal IPTV platforms in India include Airtel Xstream, JioTV, and Tata Sky Binge.
In this backdrop, how did IPTV Smarters Pro land into trouble? What are the copyright concerns associated with IPTV technology? Firstly, appropriate licensing is the foremost requirement for IPTV applications to operate legally. In India, guidelines for IPTV services date back to 2008. Apart from the obligation on telecom/internet service providers to pay the requisite license fees, they have to furnish complete details of their net worth and value addition (if any) to the content streamed through the IPTV platform.
Secondly, the relevance of copyright law stems from the right of reproduction held by broadcasters and copyright owners in relation to their works. Broadcast reproduction rights are covered under section 37 of the Copyright Act, 1957. In Star India Pvt. Ltd. v Department of Industrial Policy and Promotion (“TRAI case”, 2019), while attempting to harmoniously interpret the TRAI’s regulatory power w.r.t. pricing of TV channels/promotional schemes alongside the Copyright Act’s protection to broadcasters, the Supreme Court deemed the TRAI Act a legislation in public interest in contrast to the copyright statute that only concerned itself with the proprietary interests of copyright owners. Although the dismissal of the public interest credentials associated with copyright law was highly erroneous, the Court recognized the proprietary interest of broadcasters in communication of their content through grant of licenses to DTH operators or IPTV service providers. Hence, unlicensed broadcasting of copyrighted content to the public on payment of certain charges not only amounts to an infringement under section 39, but further discourages investment in production of audiovisual works. This hampers the creative ecosystem as a whole.
Thirdly, consumers who voluntarily stream such infringing content by paying illegal IPTV platforms place themselves in a precarious position. Although viewing pirated content is not considered copyright infringement in India unless there is sale/hire, distribution or exhibition to public by way of trade, paid users of illegal IPTV content may be sued for copyright infringement in several jurisdictions. For instance, as noted by the European Union Intellectual Property Office (“EUIPO”), receiving unauthorized IPTV signals on their set top boxes/acquiring illegal IPTV services may render consumers liable for aiding and abetting infringement in certain cases.
Digital Rights Management & the Challenges of the IPTV Ecosystem
The abovementioned EUIPO report highlighted the following pertinent points: firstly, illegal IPTV players use a range of methods such as hyperlinking, framing the copyrighted content on different websites, selling fully-loaded STBs that violate rights of broadcasters; secondly, the approaches adopted to deal with these infringements such as blocking and dynamic injunctions, administrative measures, and even criminal sanctions are unable to regulate the mushrooming of illegal IPTV activity. DRM becomes relevant in this context.
DRM refers to strategies and tools employed to safeguard copyrighted digital content from being shared, sold, accessed illegally. These include restrictions on the number of copies that can be made by a legitimate user, specification of particular softwares/devices that may be used to access the content, encryption, etc. In the context of IPTV technology, the TRAI issued regulations in 2023 prescribing DRM requirements to safeguard against copyright infringement. As per these regulations, the DRM features of IPTV systems must restrict users from sharing/mirroring content from their set top boxes (“STBs”) or unique consumer subscriptions. Further, editing, taking of screenshots/screen-grabs must be restricted. In addition, Section 65A of the Copyright Act provides for imprisonment of persons convicted for intentionally circumventing effective technological measures intended to protect rights safeguarded in the statute.
However, as discussed by Swaraj and Simrat on the blog, the efficacy of DRM measures is highly questionable. Concerns range from stifling of legitimate access to convenient dislodging of sophisticated DRM strategies by pirates. In effect, since DRM impacts the very design of the content, access for legitimate/fair use such as criticism, parody, educational purposes, etc. becomes difficult as well. Furthermore, Section 65A has been subject to intense scrutiny for its disproportionate impact on public interest.
Concluding Remarks: Legislative & Policy Response to IPTV Piracy in India
In this light, it becomes critical for policymakers to examine and address how copyright-infringing IPTV business models may be tackled by design. Robust licensing and vigilance by the TRAI coupled with timely blocking/removal of infringing websites strikes the balance between public interest in accessing content and broadcasters’ rights in regulating reproduction. In November 2024, European law enforcement agencies collaborated to identify 270 IPTV devices that live-streamed more than 2,500 TV channels illegally making more than €250 million a month. Hence, given the multi-jurisdictional nature of impact caused by such platforms (including the revenue loss), it becomes imperative for their detection and subsequent judicial action in terms of injunctions or take down orders to be time-sensitive.
However, it is imperative for such action to be reasonable. As witnessed in the instant case, the Court resorted to giving specific directions, listing the websites to be blocked, instead of issuing overbroad injunctions which often become disproportional measures. To safeguard the plaintiff against any more infringing domains, it directed that the same be notified to the Court in due course. The illegal IPTV players were also instructed to disclose compliance with the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which obligate intermediaries to ensure due diligence against infringement of any copyright by themselves or users of their computer resources. Such an institutional approach may be bolstered by investment in dynamic and forensic watermarking, increasingly being adopted by digital entertainment and sports platforms.