MEDIA AND ENTERTAINMENT WEEKLY NEWSLETTER

DELHI HC DISMISSES PLEA SEEKING BAN ON ONLINE PLATFORMS INCLUDING NETFLIX, AMAZON PRIME

The Delhi High Court vide order dated February 8, 2019 dismissed a petition filed by NGO‘Justice for Rights’, which sought formulation of guidelines for regulation of content on online streaming platforms such as Netflix, Amazon Prime etc. The PIL, filed in October 2018, claimed that the content on such platforms was inappropriate, sexually explicit, religiously forbidden and legally restricted.

Chief Justice Rajendra Menon and Justice V Kameswar Rao passed the order after they were informed by the Central Government that a license from the Ministry of Information and Broadcasting was not required to be obtained by the online platforms and also that its content was not regulated by it. Further, the Ministry of Electronics and Information Technology clarified that content on the internet was subject to regulation as per Section 69A of the Information Technology Act, however, online platforms did not fall within the purview of this section.

While dismissing the plea, the Court observed that as such platforms did not necessarily need to acquire a license under law, it cannot direct them to get one. It also further directed the petitioner to pursue the FIR that it had filed on the issue instead.

UNION CABINET APPROVES AMENDMENTS TO CINEMATOGRAPH ACT TO COMBAT FILM PIRACY AND IMPOSE STRICT PENALTIES

On February 6, the Union Cabinet approved the proposal of the Ministry of Information and Broadcasting (I&B), to introduce the Cinematograph (Amendment) Bill, 2019, and amend the Cinematograph Act, 1952. The Bill aims to tackle film piracy by including penal provisions for unauthorised camcording and duplication of films by making it a legal offence.

The I&B Ministry, in order to check film piracy, proposed for the inclusion of a new Sub-Section (4) of Section 7 of the Cinematograph Act, 1952 which would provide for imprisonment up to three years and fines that may extend to Rs.10 lakhs or both for the offender. The proposed amendments also state that “any person, who without the written authorisation of the copyright owner, uses any recording device to make or transmit a copy of a film, or attempts to do so, or abet the making or transmission of such a copy, will be liable for such a punishment.”

A statement from the ministry said that the proposed amendments would help to increase industry revenues, boost job creation and give relief against piracy and infringing content online.

PIL FILED IN INDORE HC AGAINST THE USE OF WORD ‘ADHINAYAK’ IN NATIONAL ANTHEM

A Public Interest Litigation has been filed by one Indore resident Kanhaiya Bhawsar in the Indore bench of Madhya Pradesh High Court challenging the usage of word ‘Adhinayak’ appearing in the national anthem of India. The Petitioner contended that the time when Rabindranath Tagore wrote the national anthem in 1913 was different than what the free India stands for today. ‘Adhinayak’ means a supreme ruler or a dictator and Rabindranath Tagore had then dedicated the anthem to King Edward, who was India’s supreme ruler at that time. The petitioner also contends that Tagore had not planned Jana Gana Man to be the free India’s national anthem. Hence, when the free India decided to adopt Jan Gana Man as national anthem, the word ‘Adhinayak’ should have been changed or removed at that time itself.

The petition names Centre, Secretariat of the President, Prime Minister, Home Ministry and Department of Information and Broadcasting as the Respondents. The division bench of Justice SC Sharma and Justice Virendra Singh heard the preliminary arguments and asked the petitioner to suggest word that should have been there instead of ‘Adhinayak’. The petitioner replied that ‘any other word befitting the country’s spirit instead’ could be inserted. It is to note that the petitioner has been fighting the said cause for many years before filing this petition seeking relief from the court. 

CASE REGISTERED AGAINST KARAN JOHAR, HARDIK PANDYA AND KL RAHUL OVER MISOGYNISTIC COMMENTS

 A complaint has been filed against director-chat show host Karan Johar and Indian cricketers Hardik Pandya and KL Rahul in Jodhpur's Luni police station on February 5, 2019. The FIR was registered under Section 504 of the Indian Penal Code by one advocate Deva Ram Meghwal over Karan Johar and the cricketers' alleged misogynistic comments on Johar's chat show ‘Koffee with Karan’.

The petitioner, Meghwal, termed the remarks as being indecent and also alleged that they had been made to increase the popularity of the show. In his complaint, he blamed Johar for deliberately presenting content that would humiliate women and referred to it as being promiscuous and gender-biased in nature. Last year, another case had also been filed by Meghwal against Pandya with respect to the cricketer’s alleged comments on Twitter against BR Ambedkar.

This is the first time that the host of the show, Karan Johar, found himself in trouble due to the show ever since the backlash on the episode. The two sportspersons had also been suspended by the Board of Control for Cricket in India (BCCI) from the ongoing One Day International (ODI) matches before they returned to the field again recently.

However, Hardik Pandya, later took to social media to apologize for the remarks stating that he may have gotten a bit carried away with the nature of the show and did not intend to disrespect or hurt anyone’s sentiments.

DELHI HIGH COURT DISMISSES INDIA TV’S PLEA TO RESTRAIN ITS JOURNALIST FROM JOINING RIVAL NEWS CHANNEL

The Delhi High Court vide order dated January 25, 2019 dismissed an injunction application against India TV’s newsreader, Sucherita Kukreti. The application was filed by India News Service Private Ltd (INSPL) to restrain the newsreader from joining a rival television channel, take up work or allow her name, image or voice for any other news channel till the expiry of her employment contract.

Ms. Kukreti had been a part of India TV since 2004 and had agreed not to associate with a competing channel during the term of the agreement. Although her job contract was due to end on November 30, 2019, she resigned on December 13, 2018. However, on January 20, she took to social media to declare that she had joined another news channel ‘Republic Bharat.’

India TV, in its petition, contended that they had invested a large sum of money in building Ms. Kukreti’s ‘image, reputation and goodwill” over the last 14 years and also sought recovery of damages amounting to around INR 2 crores for breach of the agreement.

Justice Rajiv Sahai Endlaw, while dismissing the application, stated that granting the injunction would be in violation of Article 21 of the Constitution of India and also placed reliance on Article 51A of the Constitution. The Court also asserted that Ms. Kukreti could not be restrained from striving towards individual excellence in the profession/vocation of her choice and that the loss from breach of the abovementioned contract could be measured in monetary terms. The matter has been further listed for hearing on July 11, 2019 for framing of issues, if any.

MADRAS HC REFUSES ANTICIPATORY BAIL TO THOSE WHO PIRATED TAMIL MOVIE ‘RAJA RANGUSKI’

Justice GK Ilanthirayan of Madras High Court recently refused to grant anticipatory bail to five accused who had pirated Tamil movie ‘Raja Ranguski’. Two out of the five accused, P Subramanian and S Geetha are owners of Kavithalaya theatre who allowed and supported those who were pirating the movie.

The accused were booked after a complaint was filed by the producer MKS Vasanth on 21st September 2018 alleging that the accused had illegally videographed the entire movie while it was playing in the theatre and then uploaded it on pirate websites including ‘Tamilrockers’. The complaint was filed at the Intellectual Property Enforcement Cell of Tamil Nadu Police for offences under Section 379, 380, 406 and 409 of Indian Penal Code, Section 63, 63B, 65 of the Copyright Act and Section 66B of the Information Technology Act.

BOMBAY HC SUMMONS PRAKASH RAJ OVER COPYRIGHT INFRINGEMENT SUIT FILED BY ZEE STUDIOS

Bombay High Court has summoned actor Prakash Raj to be present in the court regarding a suit over the movie ‘Tadka’. Essel Vision Productions Limited, the company which owns Zee Studios, moved the High Court on January 25, 2019 to implement the Memorandum of Understanding (MoU) between them and Prakash Raj’s brother-in-law Jatish Verma who is the partner of the production house Movie Makers. Zee Studios claim that according to the terms of MoU, there was an agreement of 60:40 share of intellectual property rights whereas the exploitation rights were solely vested with Zee. The problem started when Prakash Raj sold some rights related to the film to the financing company Akshay Communication Pvt. Ltd. which is in possession of the rights of the negatives. It was also contended that Prakash Raj sold some of the rights to Swiss Entertainment Pvt. Ltd. as well.

Zee Studios have moved the Court and prayed that all rights related to the movie be handed over to them. It is to be noted that the advocate for Akshay Communications Pvt. Ltd. stated that they have paid Rs.4.5 crore to Prakash Raj for acquiring the rights of the movie. The movie ‘Tadka’ is the remake of the Malayalam movie ‘Salt N Pepper’ starring Nana Patekar and Taapsee Pannu.

BOMBAY HC QUESTIONS FACEBOOK ON ITS VIEW TO REGULATE PAID POLITICAL CONTENT BEFORE ELECTIONS

In a PIL filed by lawyer Sagar Suryavanshi, the Bombay High Court asked social media giant Facebook on why was it reluctant to strictly regulate paid political content in India. The PIL seeks directions to the Election Commission on prohibiting all persons, whether politicians or private individuals, from posting political or poll-related advertisements or paid political content on social media platforms such as YouTube, Facebook and Twitter 48 hours before election day. The petitioner contends that in several western countries, documents like valid identity proof and proof of residence is required to post paid political content or advertisement on social websites. Hence, the petitioner prays for a similar system in India.

The High Court has asked Facebook to file an affidavit listing the steps it could initiate to regulate such content, particularly ahead of the elections this year. It also asked to reply in terms of the stringent scrutiny systems Facebook adopts for paid political content in the UK and the US. The plea is currently being heard in front of Chief Justice Naresh Patil and Justice NM Jamdar.

Advocate for Facebook, Darius Khambatta told the Court that it was ready to remove any objectionable paid political content from its page provided that the direction comes from Election Commission or any such authority because Facebook cannot implement a system of self-censorship. The High Court has asked Election Commission to explain on the next date what could be done at its end to regulate paid political content online. The Court has also issued notices to Google India, Twitter and YouTube seeking their response to the PIL.

PROPOSED AMENDMENTS TO INFORMATION TECHNOLOGY ACT LEAVES E-CIGARETTE USERS FUMING

Ministry of Electronics and Information Technology (MeitY) has proposed changes to the existing Information Technology Act vide Draft Information Technology (Intermediary Guidelines) (Amendment) Rules, 2018 released on December 24, 2018. The proposed draft adds sub-clause (j) to Section 3 which mandates due diligence by intermediaries while discharging their duties. Sub-clause (j) includes anything that threatens public health or safety like promotion of cigarettes or any other tobacco products or consumption of intoxicant including alcohol and Electronic Nicotine Delivery System (ENDS) and like products that enable nicotine delivery except to the extent permissible under the Drugs and Cosmetics Act, 1940. The Intermediary is also required to inform its users at least once every month that in cases of non-compliance with rules and regulations, the Intermediary has the right to immediately terminate the access or usage rights of the users and remove non-compliant information.

US FIRMS OPPOSE THE INDIAN GOVERNMENT’S PROPOSAL TO AMEND INTERMEDIARY GUIDELINES; GAINS SUPPORT BY INDIAN COMPANIES

The Ministry of Electronics and Information Technology (MeitY) has proposed to amend the Information Technology (Intermediary Guidelines) Rules under Section 79 of the Information Technology Act. These guidelines dilute safe harbours given to internet platforms in order to curb fake news and rumours. However, the US technology companies and a few of the Indian companies have sharply opposed to the government’s proposal to amend the same.

The IT Act currently provides a legal shield for technology intermediaries. Reliance Jio, Sharechat and Indiatech.org, which represent Indian companies such as Hike, Ola and MakeMyTrip have supported most of the amendments which include the government takedown requests, traceability of messages and local incorporation. However, the Internet and Mobile Association of India (IAMAI), which lobbies for Facebook, Google and Twitter have called the rules arbitrary, a violation of the right to privacy and financially unsound.

The draft amendments made to the IT Act in December, mandated companies to trace and report the origin of messages within 72 hours of receiving a complaint from law enforcement agencies and also disable access within 24 hours to content deemed defamatory or against national security. The amendments further require all platforms with more than five million users to have a registered entity in India under the Companies Act and appoint nodal officers for coordination with the law enforcement agencies.

CODE TO REGULATE AND REDUCE AD-SUPPORTED ILLEGAL CONTENT TO BE FRAMED SOON BY THE CELL FOR IPR PROMOTION AND MANAGEMENT

A unit of the Department of Promotion of Industry and Internal Trade (earlier known as Department of Industrial Policy and Promotion) called Cell for IPR Promotion and Management has taken the initiative of forming a ‘Voluntary Code’ aimed at reducing ad-supported illegal content.

Those who voluntary sign the Code will agree not to advertise on websites that host infringing content. If the channel to earn the revenue gets cut then there will be no intention left for websites to host pirated content from new movies and albums. Google’s Adsense, an advertising programme allows placement of ads that are targeted and relevant to the content of websites. Google said in a recent report that it ejects rogue sites from its advertising network and payment services. It disapproved and removed more than 10 million ads in 2017 that were suspected of copyright infringement or that linked to infringing sites. However, it abstained from commenting on whether it would join the voluntary code in India.

A similar kind of approach has been followed by big advertisers like Colgate-Palmolive, Johnson & Johnson and The Walt Disney Company as they abide by similar guidelines in the US issued by the Trustworthy Accountability Group, a body that fights criminal activity in the digital advertising supply chain. Hong Kong and the UK have also introduced legal frameworks to curtail advertising on websites that host pirated content.

Also, it was reported that India will soon be coming out with an Infringing Website List which will differentiate between grey listed websites (unsafe) and white listed websites (safe) for advertising purposes. The government has recently suspended 235 notorious pirate websites, which had 186 million users per month, over the past 18 months, according to the Cell for IPR Promotion and Management. The Maharashtra government has already sent out advisories to 34 brands and some advertising networks, asking them to not advertise on certain websites.

NETFLIX FACES COPYRIGHT INFRINGEMENT OVER ITS AWARD WINNING SERIES ‘WILD WILD COUNTRY’

Netflix has been hit with a copyright infringement suit in the US District Court over its cult hit series ‘Wild Wild Country.’ Directors Chapman, Maclain Way and Duplass Brothers Productions have been named in the suit filed by the Osho International Foundation, a company that promotes the teachings of the documentary’s subject, a controversial Indian guru Bhagwan Shree Rajneesh also known as Osho.

Osho Foundation states that Netflix has infringed their copyrighted works, which document the teachings and life of Osho, by producing, distributing and streaming the series. The lawsuit asserts that a substantial portion of these works has been used without the Foundation’s permission and also that the first episode includes about 88 discrete instances of copyright infringement and the infringing material lasts for 12 minutes. US filmmaker Michael Hillow, another plaintiff in the suit stated that a footage from his 1993 documentary “Rajneeshpuram: An Experiment to Provoke God” had also been used without his consent.

The Foundation has asked the US District Court to grant an injunction to permanently restrain Netflix from further infringing the copyrighted works and is further seeking damages and disgorgement of Netflix’s profits. It also claims that Netflix had been informed about the alleged infringement in February 2018, however, Netflix failed to “meaningfully respond.”

MALAYALAM DIRECTOR AASHIQ ABU’s MOVIE ‘VIRUS’ GETS STAYED OVER COPYRIGHT INFRINGMENT

Ernakulam District Court has issued a stay order against Director Aashiq Abu’s movie titled ‘Virus’. The movie is based on Nipah Virus outbreak of 2018 that happened in Kozhikode and Malappuram district claiming 17 lives. The efforts of the state government and doctors were lauded worldwide which helped in diagnosing the virus in its initial stages. The Court issued the stay after Director Uday Anand filed for copyright infringement stating that he had the story of the movie registered under his name. The Court will hear the case next on 16th February 2019.

SONGWRITER CLAIMS COPYRIGHT INFRINGEMENT OVER ONE DIRECTION SONG ‘NIGHT CHANGES’ FIVE YEARS AFTER IT WAS RELEASED

Singer-Songwriter David Lewis Smith has filed a case of copyright infringement against a song ‘Night Changes’ released by One Direction five years ago in 2014. Damages have been claimed from all the five original members of One Direction including Zayn Malik who had left One Direction in 2015. The claim has also been made against UK songwriter Jamie Scott, US songwriters Julian Bunetta and John Ryan who wrote and produced 'Night Changes’, Simco, the production company behind The X Factor; Big Deal Music, a publishing company that in 2013 Mr Ryan allegedly signed a contract with; Universal Music Publishing; EMI Music Publishing and Sony Music Entertainment UK Ltd. All the defendants have denied the claims.

The case has been listed before Justice Leonie Reynolds and lawyers representing Lewis Smith are seeking discovery orders with respect to documents of composition and writing for the song 'Night Changes', including documents relating to any earlier and separate drafts of the song. In addition, all documents relating to the performance, sale, recording, distribution, publication and downloads of 'Night Changes' from its initial release and publication are sought. The matter is next scheduled for hearing in March 2019.

CLASS ACTION COPYRIGHT SUIT FILED AGAINST SONY MUSIC TO RECLAIM SONG RIGHTS

A group of musicians, David Johansen, John Lyon and Paul Collins have filed a copyright infringement suit against Sony Music at the US District Court for the Southern District of New York on February 5. The action is based on the refusal of the label to permit recording artists to terminate grants of copyright interests 35 years after the initial release of the artists’ albums.

The musicians allege that Sony has unlawfully stopped them from reclaiming their copyright. The US Copyright law allows the authors of music a second chance to reclaim copyright from unwise grants made early on in their careers and also serve a ‘Notice of Termination’ for the same. The musicians also stated that despite notices being served on Sony, the company had refused to acknowledge its validity by stating that the recordings created by the artists would constitute “works made for hire” due to the contractual language found in the Sony recording agreement.

Further, the artists also allege that the company has completely disregarded the artists’ ownership rights by continuing to exploit those recordings and also they have been restrained from entering into an agreement with a different record label. The musicians are seeking for declaratory relief and damages up to $1,50,000. 

A BIG WIN FOR SONGWRITERS AS US STREAMING ROYALTY RATES RISE 44%

The US Copyright Royalty Board (CRB) has recently approved a major increase in the mechanical royalty rates to be distributed to songwriters for 2018-2022. The decision includes a 44% increase in the overall percentage of revenue paid to songwriters which would rise from 10.5% to 15.1% and is the largest rate increase in the CRB’s history.

Additionally, the CRB has also removed the Total Content Cost (TCC) cap which would give publishers the benefit of a true percentage of what labels negotiate in the free market resulting in significantly higher royalties for the writer. As a result of the compulsory license for reproduction of songs in the US, songwriters and music publishers are obliged to allow labels and digital services to make copies of their work at industry wide rates.

 David Israelite, President and CEO of National Music Publishers Association (NMPA) stated that an effective ratio of 3.82 to 1 was still not a fair split ratio that could be achieved in a free market, however, it was the best songwriters had ever had under the compulsory license. Also, Benjamin Semel who works for NMPA was heard to say that the royalty pool would be the greatest of three different metrics, one, an annually rising percentage of revenue; two, an uncapped and annually rising percentage of the amounts paid by the services to record labels in the free market for the same streaming activity; and three, an uncapped and annually rising percentage of the amounts paid by the services to record labels in the free market for the same streaming activity.

This decision was taken as a result of a trial that took place in March and June of 2017 with the NMPA and the Nashville Songwriters Association. Additional motions were also submitted by music owners and music users leading to more consideration and investigation eventually leading to the final determination. Participating parties now have one more chance to appeal.