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Intellectual Property Platform Accountability

“It’s Not Really Our Fault: It’s The Algorithm”

This seems to be the prevailing view these days amongst the large digital social media and search platforms when the results of algorithmic selections they have programmed turn out to yield undesirable results. The poster child for this is Facebook as revelations from whistle blower Frances Haugen reveal how the company’s policies, and its algorithms, prioritize viewer engagement over safety and responsibility. Strident, opinionated, racist voices get people worked up. They generate traffic. Never mind that they are socially damaging, defamatory, incite violence, and are disconnected from factual reality. Never mind that some users of the service spread inflammatory misinformation about COVID vaccines or pursue other conspiracy theories. The algorithm boosts them and promotes more engagement. Never mind that many teenaged girls, addicted to Instagram, are worried or depressed about their body image. The algorithm that governs what they see makes the situation worse. As reported by the Guardian, “an algorithm tailors the photos and videos that a user sees, potentially creating a spiral of harmful content.”  But it’s not the platform’s problem. It’s the algorithm, you see.

What exactly is an algorithm? We all have a general idea, I am sure. The Oxford Dictionary definition is “a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer”.

Algorithms are essential for the operation of many things, especially in the internet environment. For example, algorithms screen content for copyright violations and inappropriate sexual images. (They also get it wrong a certain proportion of the time,  such as blocking Ruben’s nudes as well as contemporary explicit images). Algorithms have also been embraced by social media platforms, not only to block or filter but also to promote or recommend. When we talk about algorithms selecting what people will see, or be served, we are talking about a mechanism for sorting content based on relevancy to a user; how likely is it that they will want to see it? How does the algorithm do this? It works by “sniffing out” your preferences, based on likes, frequency of interaction, categorization of the type of content you have already seen, or seem to prefer, the content that you share with others, and so on. While this can be useful, it can also drive users into an echo-chamber where all they hear are voices that sound like their own. This is where the conspiracy theorists and others come in. Social media algorithms are driven by machine intelligence and machine learning, so the more you follow a predictable pattern, the more the algorithm will reinforce that behaviour.

Algorithms are normally proprietary, protected technology and intellectual property, with each platform jealously guarding its “secret sauce” that keeps consumers coming back for more. Given that they are created by “a real person”, even though they develop and grow under the impetus of machine learning, a chain of accountability can be established. It is the same principle as intellectual property, for example a copyrightable work being created by Artificial Intelligence (AI). AI can create musical, literary or artistic works, and these can be protected by copyright. But, as I wrote in a blog last year (AI, Ethics and Copyright),

“If only humans are capable of creating works that are subject to copyright protection (as the US Copyright Office has made clear in a recent interpretation), then how does one deal with works produced by a seemingly autonomous machine?”

This is not an easy question, but the answer increasingly seems to be that the copyright is conferred on the human being who created or directed the program, although it remains under study. Even in the case of machine and AI-generated works, there is always a human hand behind the creation. It may take some ingenuity at times to determine which human hand is predominant, but that is why we have courts. So, if AI can be traced back to a human creator (whoever designed the software program and applied it to the creation of the work), then so too the creators of algorithms must claim ownership, which also means bearing responsibility for what algorithms do.

Taking responsibility is the big issue of the day. Facebook maintains that it keeps its algorithms under constant review and refines them to eliminate undesired outcomes when necessary. But Haugen’s whistle blower testimony suggests that they are slow to act when problems surface and prefer to give priority to business outcomes (longer user engagement which drives more ad revenue) over social responsibility concerns. The criticism of Facebook covers how the company and its algorithms deal with everything from climate change deniers, political conspiracy theories, and sex trafficking to hate speech, young adults, teenage girls and health misinformation. An excellent summary can be found here, (thanks to The Markup.)

Inevitably this draws political scrutiny, in the US and elsewhere. Legislation can be tweaked to incentivize platforms to accept greater responsibility for their algorithms. For example, the US House of Representatives currently has two bills before it that deal with this issue. The first, (labelled the “Justice Against Malicious Algorithms” Act) would make internet platforms liable when they “knowingly or recklessly” use algorithms to recommend content that leads to physical or severe emotional harm by removing the “safe harbour” provisions against civil liability that platforms enjoy under Section 230 of the 1996 Communications Decency Act. Section 230 is a controversial provision that I have written about several times before (most recently, here) that allows digital platforms to evade civil legal responsibility for defamatory, misleading, obscene, racist or otherwise illegal or objectionable content posted by users on the questionable basis that the platforms are not “publishers” and therefore have no control over or responsibility for user-posted material distributed on their platforms. In other words, if this bill becomes law, there will be no platform immunity when the algorithm results in severe harm to the user.

A second bill, the “Protecting Americans Against Dangerous Algorithms” Act, would take this a step further by eliminating Section 230 protection in cases where;

“the interactive computer service used an algorithm, model, or other computational process to rank, order, promote, recommend, amplify, or similarly alter the delivery or display of information (including any text, image, audio, or video post, page, group, account, or affiliation) provided to a user of the service”,

except where

“the information delivery or display is ranked, ordered, promoted, recommended, amplified, or similarly altered in a way that is obvious, understandable, and transparent to a reasonable user based only on the delivery or display of the information (without the need to reference the terms of service or any other agreement)…”

In plain language this means that where a user is manipulated by an algorithm or when an algorithm starts making content decisions unknown to the user, Section 230 liability protection no longer applies. This parallels the recommendation made by Facebook whistle-blower Frances Haugen with respect to Facebooks intentional algorithm-driven ranking decisions. However, who would make the decision as to whether a user is being manipulated is an unanswered question.

Another piece of legislation introduced earlier this summer in the Senate would remove liability protection from technology companies if their platforms spread health misinformation during a health crisis. This could occur when algorithms suggest and boost misinformation that seems to conform to what a user prefers, or that received “likes”, or was shared by a number of users. Small but organized sections of the population can boost particular sources of information, even if inaccurate or misleading, by creating lots of traffic, a tactic to which an algorithm will respond unless very carefully programmed.

Poorly designed algorithms can create their own distortions, as was shown by the case of “Carol’s Journey”. As documented by journalist Brandy Zarodzny, “Carol” was a fictitious user created by Facebook researchers back in the summer of 2019 to study the role of the platform’s algorithms in promoting misinformation to users. Carol’s profile indicated that she was “a politically conservative mother from Wilmington, North Carolina,…(with) an interest in politics, parenting and Christianity (who) followed a few of her favorite brands, including Fox News and then-President Donald Trump.”

How did Facebook’s recommendation algorithm treat this information? Within two days Facebook was recommending that she join groups associated with the conspiracy group QAnon. Within a week, her feed was replete with hate speech and disinformation, content that violated Facebook’s own rules. What did Facebook do with this information? Not much, according to Zarodzny’s report, although Facebook claimed that the research demonstrated how seriously it takes the issue of misinformation.

A problem with algorithms is that they can be manipulated by knowledgeable users to boost some content over others. It is common to see “search optimization” services offered to businesses to boost their rankings on search engines through various techniques that will appeal to and be picked up by the algorithm. Given that the software that sorts and ranks content can be tweaked by users, it follows that those who create and manage the algorithms must also be prepared to defend the algorithms they use. They  need to take responsibility when their algorithms are either hijacked by users, or worse, misused by the platform itself to serve content to users that may be harmful to their well-being but which, like addicted gamblers, they continue to seek out.

Algorithms are here to stay. Like many things, they can be used for good or ill. In the hands of influential social media platforms that recommend content they are a powerful tool. Self-regulation does not appear to be working, so it is not surprising that various legal and legislative remedies are being proposed. Frankly, it is unlikely that any of the current bills in the US Congress will become law at the end of the day. They will likely meet the fate of much legislation that is introduced, debated, but not passed. Nonetheless, the fact that lawmakers are now seized of these issues is important and will hopefully bring more pressure to bear on the platforms to accept greater responsibility for their actions and the tools that they use to engage users. Hiding behind the algorithm won’t work. They need to own the problem and fix it. If stripping away some of their immunities brings about reform and greater accountability, I am all in favour.

This article was first published in Hugh Stephens Blog.

Categories
OTT

Indian Streaming Video & TV Markets Can Turbocharge Nation’s GDP Growth – If Only We Let Them.

What is our national obsession? Well, after cricket. A close second place goes to our love for streaming video platforms. India’s audience for online videos is a staggering 353.2 Million
(35.32 Crore) and growing fast (OrmaxMedia). We are predicted to be the sixth-largest market for video streaming by 2024. Streaming apps offer video content for us to devour and should be referred to as ‘Rich Interactive Apps’ (RIA). The more commonly used term, ‘Over the top’ (OTT) does not do justice to the benefits they provide. The RIA (OTT) market is currently rich, healthy, competitive, and boasts 60+ players and counting. This segment will be a robust contributor to the Indian economy and is expected to hit USD 15 billion by 2030 (RBSA Advisors) – $12.5 billion for video and $2.5 billion for audio. This is an exciting time for the
country to nourish this fledgling industry. We need to help it realise its true potential without heavy-handed regulations that may tie it down.

We can take a page out of our recent history of success with mobile phones. When mobile phones first entered India, the nascent market flew sky-high rapidly. As a result, India now is the
world’s envy with a mobile-first economy and almost 800 million users accessing the internet using their phones. What’s more, internet penetration is not limited to urban India. By 2025, rural
India is expected to have more internet users than urban India. A significant part of this success is due to the forward-thinking policies of the Telecom regulator (TRAI). Recognising the
potential of mobile phones in a burgeoning market, TRAI allowed the new technology to soar without clipping its wings. The heavy regulations that applied to legacy landline technology were
not blindly applied to this emerging competitive market. This action spurred the rapid proliferation of mobile telephony through India, which is the foundation for spawning many new
industries, including content streaming platforms, apps, digitech startups, fintech, and much more.

There is a similar case to be made with the growth of the Information Technology (IT) and IT- enabled services (ITES) in India. The Indian IT boom was predominantly due to the economic liberalization programme of 1991 and opening up of the economy for foreign investment. These policies kickstarted intense competition in the IT industry which drove standardisation and
productivity improvements through the entire sector. We must hail the Indian Government for adopting a growth mindset and laying a roadmap for success through the Information Technology Act of 2000, National Broadband Policy of 2004 and Special Economic Zone (SEZ) Act of 2005. India is now a global technology superpower due to this shot in the arm.

Because of their architecture, RIAs imbibe the pulse of the Indian consumer. Internet apps are exciting, disruptive technology that represents the future. Content is curated based on popularity. This is a highly efficient way to encourage free-market competition between different types of content. Using this data for advanced consumer analytics can help companies plug potential revenue leaks by optimizing their content. This can drive further engagement and bring more consumers to the fold. Currently, urban India leads in RIA (OTT) penetration of 48%, and
rural India is at 15%. However, this demographic will not lag for long. Internet penetration in rural areas is estimated to expand to 650 million users by 2023. With this incredible growth, RIA
penetration will increase as well. Consumer demand in rural areas will also be accelerated because content creators are developing quality regional language content.

That’s not all. These RIA (OTT) services now act as the roots of a whole new set of fast-growing supporting ecosystems. Many production houses are shifting into the digital space to keep up
with the growing demand for original content. Apps use broadband services provided by Telecom players, and they are now a substantial revenue generator for Telcos. Telecom providers offer attractive options to consumers by bundling their data and internet services together with popular global and regional streaming services.

RIA apps and video content are revolutionising the world of education as well. Women and girls who may not be allowed to leave their homes for further schooling can access educational
material right from their homes. Persons with disabilities who may not attend traditional schools or colleges can greatly benefit from the cost-effective educational options available online. Children can gain supplemental academic support through video counseling or tuition. The potential is limitless – unless limited by applying heavy regulatory brakes during this period of growth. The world of education technology in India (known as EdTech) is booming. With 3,500 homegrown EdTech startups, the industry is estimated to be $1.96 billion this year (KPMG). It grew at a CAGR of a remarkable 52% CAGR since 2016.

When a new market begins to grow, there are, understandably, deliberations around whether to regulate it. And if so, how much regulation is required. The traditional TV and cable network
technology market is a successful market in its mature stage. Subscriptions and advertising are the primary revenue generators for this market. As is expected, after heavy competition, the
market consolidated and has fewer players. Content is heavily censored and there are price caps on channels and regulations around bouquet formations. “It is not a level playing field,” the
players assert – understandably.

However, calling for emerging technology like RIA (OTT) to be similarly bound up in regulations does not solve TV’s woes. To free themselves from potentially restrictive regulations, these
players must make a case for lighter censorship and relief from price caps and bouquet pricing mandates. Demand for content for news, sports, and other entertainment is currently through
the roof. Both TV and RIA (OTT) markets will benefit from the widening of this demand funnel with an overall easing of the regulatory burden.

Globally, the OTT market is expected to generate a revenue of $438.5 billion, growing exponentially at the double-digit growth of almost 20% (Research Dive report). Indian consumers already have a voracious appetite for the convenience and options offered by
streaming video and audio-on-demand. This is noteworthy because most of this content is accessed via smartphones which provide the flexibility to watch whatever we want, whenever we want it. At home, TV programmes are a great complement to these services with a wide range of options.

While allowing the OTT market to operate and contribute, the classical TV market must also be permitted to work to free-market dynamics. There is huge potential for TV to grow in India, if
freed from heavy regulatory shackles. For example, Indian household TV penetration is hardly 60% of APAC, UK, USA, or China levels. Digital India must not have to languish behind other
countries but flourish instead. Our TV market needs to be nurtured and grown healthily for the benefit of majority of the Indian public.

The Indian consumer loves the freedom of choice and it is futile to take it back. The situation is just like when TV was liberalised to allow private players to compete. Once consumers had the
taste of many different cable channels, there was no way, or point, in going back to the days of Doordarshan-only programming. Trying to do so would have led to a revolt!

Similarly, the days of restricting an entire household’s consumption of news and entertainment to a single platform are gone. Consumers prefer their news, entertainment, and learning at all
times of the day without being restricted to a specific location or device. In many families, as adults watch their preferred TV programmes and serials, their children and grandchildren can
watch their own forms of curated entertainment. By now, most of us view TV programmes from any room in our home, during our commute to and from work or school, or stream music or
podcasts during chores. We even catch up with our personal favourites late at night after a hard day’s work. It is time for all stakeholders to face reality head-on and evolve accordingly.

A growing sector like RIA (OTT) cannot be subjected to the same heavy regulations as a traditional sector. Otherwise, the Indian consumer will ultimately be at a disadvantage. Now with
affordable and greater broadband penetration, the Indian public demands differentiated and niche content and there is rampant competition to capture their attention. This is an ideal scenario to help the market grow and boost our economic growth. The best way for India to benefit would be to allow competition to encourage free-market forces to help all stakeholders have their share of the pie. With the help of forward-thinking Indian policymakers, the Indian creative economy can take over the world and rank high among top global television and video players.

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Uncategorized

Amazon’s Facebook Problem

In a recent blogpost, Amazon called on Facebook and similar platforms to work more diligently to shut down the numerous trolls who swamp Amazon’s site with fake product reviews:

In the first three months of 2020, we reported more than 300 groups to social media companies, who then took a median time of 45 days to shut down those groups from using their service to perpetrate abuse. In the first three months of 2021, we reported more than 1,000 such groups, with social media services taking a median time of five days to take them down. While we appreciate that some social media companies have become much faster at responding, to address this problem at scale, it is imperative for social media companies to invest adequately in proactive controls to detect and enforce fake reviews ahead of our reporting the issue to them.

For years, we too have been kicking and screaming politely requesting that Online Service Providers actually put some effort into stemming illegal activity by their users.

Just as Amazon does with fake product reviews, copyright owners constantly report digital piracy by various organized groups to Facebook. Nevertheless, the number of infractions goes up, not down, every year – and while independent creatives watch their earnings fade away, Facebook sits around doing nothing, enjoying the stratospheric climb of its stock price.

Our piracy problem with Facebook is just like Amazon’s problem with fake product reviews. The difference is that Jeff Bezos’s livelihood will be just fine – it’s a different story for the millions of creatives who are suffering at the hands of the largest social media company in the world.

Facebook Pretends to Care

Facebook barely pretends to care about its harmful impacts. We have had our doubts. And you can readily see those doubts confirmed if you read the growing body of whistleblower testimony, assess the company’s PR campaigns, or click through the most recent report (if they haven’t buried it yet) – from Facebook’s deceptively named Transparency Center.

In its Intellectual Property transparency report for the second half of 2020, Facebook reassures us that stealing intellectual property is prohibited by its Terms of Service. Surely that’s effective.

Oh, wait – Zuckerberg admitted to Congress in 2018 that “a lot of people probably just accept terms of service without taking the time to read through it.” Honestly, it’s exhausting.

Facebook also says that it will promptly remove stolen material upon receiving a valid complaint from the copyright holder. That sounds responsible – but, of course, that’s nothing more than what Facebook has always been required to do by an outdated and inadequate law, the Digital Millennium Copyright Act.

Section 512 of that law contains a so-called “takedown” requirement. Court interpretations of this section, shaped by the advocacy of Facebook and other Big Tech proponents, has left creatives with nearly 100 percent of the burden of enforcing their copyrights online. Meanwhile, platforms like Facebook profit from pirated content by running ads with it.

Remember that 87% of businesses in film and television are small enterprises, employing fewer than 10 people. Do any of us really think an indie filmmaker or small studio has the time and resources required to patrol the internet, tracking down violations of their property rights and finding someone to make it stop?

Hang on – Roy Kent can answer that for us.

Independent creatives and small businesses are busy trying to make ends meet as they entertain and inspire audiences with original content. It’s an uphill battle, since digital piracy siphons more than $29.2 billion from the U.S. economy each year, according to the U.S. Chamber of Commerce.

As Facebook admits in its very own transparency report, it received almost 100,000 reports of copyright infringement in December 2020 alone. Let’s do some quick math. Assume (very conservatively) that to find an act of infringement, figure out who is responsible for taking it down, and filing a takedown request, takes 5 minutes per violation. That’s over 8,300 hours a month that creatives need to dedicate to chase after piracy – on Facebook alone! That doesn’t just harm creatives – that harms everyone. And, of course, that only accounts for the violations the creatives were able to find, which is not all the violations that are out there.

Facebook says it does take preventative measures. They report that between July–December 2020, they removed 1.5 to 2 million accounts, posts, or other items each month due to intellectual property concerns, in advance of receiving any complaints. According to Facebook, that represents 75–80% of the content removed for copyright violations.

Pretty good, right? Well, not really. Because it leaves you to guess just how much infringing content remains up – a metric that Facebook doesn’t want anyone to see. Regardless of what the transparency report implies, the amount of content removed due to takedown notices plus the amount removed proactively by Facebook does not come close to the total amount of pirated content on the platform.

In the spirit of “transparency,” let’s make something clear: the enormous and ever-increasing burden of submitting takedown notices is more than content creators can bear. Again. Honestly.

Even by Facebook’s own count, a lot is slipping through the cracks – and quickly. These “proactive enforcement” efforts – catching only 75–80% of piracy according to a misleading underestimate – don’t impress us much. We expect better from a company that managed to bring in almost $28.6 billion in ad revenue between April–June 2021.

Crocodile Tears

“Transparency” reports are just another obfuscating ploy, part of Facebook’s corporate strategy in the wake of Cambridge Analytica and other scandals.

If Facebook actually gave a flying [REDACTED], it would take serious responsibility for its business practices now.

It’s daunting to go up against a trillion-dollar company. But ironically, Facebook has actually accomplished its stated mission to connect people – but they’ve connected in the fight against Facebook abuse. Fortunately, we’ve never been so united, from tech workers to independent creatives, from federal legislators to protesters like our current heroes, the Raging Grannies.

Facebook should commit to cleaning up their platform and giving more creatives effective content protection tools. Then, instead of touting “transparency,” they could tout real results.

This article was first published in CreativeFuture.

Categories
Blog Industry Interview OTT

TO WIN HEARTS, KEEP IT AUTHENTIC

Speaking from a creative lens, Aparna began the session by speaking about her inspirations and how there’s a renaissance and a fresh movement for creative industries in India. With stories abound, it is an exciting time to be in the creative space with ample opportunities to explore new creative directions.

In the context of content for the Indian landscape, Aparna was of the view that the pandemic pushed forward a creative revolution that was already at the precipice. While the pandemic in it’s early days did create significant operational issues with production schedules coming to a halt, in the mid and long-term it has served as a catalyst for the industry providing significant impetus for its growth – especially in the streaming space.

On being a first mover in the streaming space, Aparna spoke about how Amazon was one of the first players in the market to provide direct to stream films in India which resulted in a 3x growth in viewing hours along with a growth of collective (family) consumption in front of a television stream. This growth provided Amazon with the opportunity to understand regional viewership behaviors and to explore a wide range of new ideas and concepts.

Finding opportunity in growth also presents a philosophical perspective of finding light in the darkest of times. While it was disheartening for creators in the initial stages of the pandemic, the lockdowns and the inability to film content,  eventually provided the inspiration to explore new ideas and keep creating.

On the subject of data, Aparna spoke about how data is very important to understand demographics and viewing behavior. The formulae driven by data has to be coupled with instinct and the passion of the creator. She also highlighted that there has been a paradigm shift in how stories are being told in the online space and that  there is a tremendous opportunity for a multitude of stories to succeed since each niche has something that appeals to it’s palette. The digital landscape provides a seamless channel of communication with decision makers in the industry. She does share advice that it’s better to present the most passionate ideas rather than a bouquet of scattered ideas.

 

Once a script or an idea is selected to become an Amazon Original, the long journey of development that could range from 6 to 12 months begins. The process at Amazon is collaborative with multiple individuals working together with the best interests of the story in mind. The idea moves into a screenplay, a robust script and then is finally ready to go into production.

To close things out Aparna is excited with what Amazon has in store for Indian audiences as she sees multiple projects that started in the last year come close to fruition and ready for release.

Categories
Blog India At Cannes 2021 Industry Intellectual Property Interview Piracy

CREATING A ROBUST FRAMEWORK FOR THE CREATIVE ECONOMY IN THE DIGITAL AGE

Ms. NS Nappinai is a Supreme Court advocate and the founder of Cyber Saathi. She is an expert in various laws such as cyber, technology, constitutional, and criminal laws. She is the author of the book, ‘Technology Laws Decoded.’

Ms. Lohita Sujith and Ms. NS Nappinai had a fruitful discussion on the need for a robust policy and a legislative framework for the creative economy in the digital age.

Ms. Nappinai believes that cybersecurity is a vast area that does need specialised cyber safety laws.

Ms. Nappinai stated that Copyright law is one of the older laws in India. The Copyright Act, 1957 may need to be revisited in light of India becoming a party to the WIPO Copyright Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT). Further, the Copyright Act, 1957  has also not been amended in terms of interoperability with the cyber laws, technology laws, and anti-piracy measures. In her opinion, though all these laws have individuality in terms of operation, they do have points of convergence, where their interoperability needs to be deliberated upon. India is still at a developing phase in terms of interoperability and convergence of laws.

Ms. Nappinai further discused the evolving nature of the laws concerning the digital space. The world has evolved during the pandemic; for example, OTT platforms became the primary source of entertainment. Education was redefined, and the classrooms were made portable through mobiles and tablets. In terms of various laws and their cohesion or harmonisation, in this new environment, India stills stand at a nascent stage. In numerous instances, there has to be deliberation on the provisions of a new law. However, the absence of convergence or harmonisation of existing laws does not mean the lack of a remedy available to the victims of copyright infringement or cyber crimes.  There are remedies in various laws including the Information Technology Act, 2000 (“IT Act”)

On the point regarding geopiracy tools such as highjacked IP addresses, which threaten territorially restricted content offered by digital platforms, Ms Nappinai was of the view that while the laws need to be relooked , the problem is not with the robustness of laws to tackle a particular issue, but rather, in their implementation. The present laws, including the 2012 amendment to the Copyright Act, 1957 are very specific to their domain and lack dynamism. For example, the 2012 amendments do not include internet transmission/broadcast as a domain. India is using both technology and law for protection against piracy. Technology, while mostly effective, offers limited protection against piracy and does not hinder rogue sites from hosting pirated content. Legal developments have been encouraging, particularly the Delhi High Court’s 2019 judgment in UTV Software Communication & Ors. Versus 1337x.TO & Ors., wherein the Delhi High Court issued india’s first dynamic website blocking injunction for copyright infringement. This is complimented by a previous Bombay High Court judgment which recognized the proposition that John Doe orders must be based on concrete and precise information and must be narrowly tailored to block specific URLs in contradistinction to entire websites. Thus the law has recognized that the copyright holder’s rights must be balanced with the rights to fair use of copyrighted content as well as right to free speech.  While India does not need many additional laws except a few for covering the digital domain, several problems could be solved by purposive interpretation and better utilisation of the present laws.

Speaking on the effective legal protections on technology, Ms. Nappinai stated that though law is dynamic, it sometimes becomes static when dealing with technology. For example, the Information Technology  Act, 2000 was enacted for a digital medium, but it took eight years for the legislators to change it to an electronic medium for effective and adequate protection. In cases of infringement through technological advancements, including violations of Section 65A and 65B of the Copyright Act, 1957, the remedies are available within the laws. The copyright owners just need to look at the correct place, which includes the Information Technology Act, 2000.

In terms of creating awareness about accessing pirated content among the content consumers, it was pointed out by Ms. Nappinai that it is mainly moral persuasion which is employed to discourage use of pirated content by content consumers. The issue also crops up in countries like the USA because cheaper or no-cost entertainment does not appear, on the face of it, to harm the consumer. The awareness that piracy is a criminal offence should be spread. In her opinion, the narrative needs to be changed. Instead of pointing out the losses to the third parties or copyright owners owing to piracy, the losses to the consumers/users of such pirated content, such as spread of malware to their systems through sites hosting pirated content, will be more helpful.

 

 

The next question related to the impact of Artificial Intelligence and Augmented Reality on the copyright laws in India. The question of copyright ownership of content created using artificial intelligence assumes significance. Ms. Nappinai stated that copyright should be given to the facilitator of the outcome of the work. She highlighted the example of the “Monkey Selfie case” in the USA, where a monkey had taken a selfie of itself. The monkey had picked up a camera placed by a professional photographer and used it to take a selfie of itself. While the photographer tried to assert his copyright over the photograph, having expended his time, money and energy, to have the photograph taken the People for Ethical Treatment of Animals (“PETA”) contended that the monkey held the copyright to the photograph.  The Court ultimately held that the photographer owned the copyright to the photograph. The Copyright Office went a step further, clarifying that copyright could be granted only for content created or generated by humans, and not by animals, holy spirits or technology.  The reasoning is that there is a a human action involved in every technology, for example, there is a lot of content and music on the internet which is generated by artificial intelligence, but the development of the artificial intelligence system was done by a human, who worked on it to feed the right kind of information to the system. The human interference or aspect that is the most near to creating the content in question should be given the copyright.

Moving to data protection, Ms. Nappinai pointed that certain provisions of the IT Act need to be made more specific and clarified. Understanding the liabilities and remedies for a particular action must be more straightforward for the creators and users under the Act.  For example, Illustrations to clarify the situations in which a person could rely on Section 43 of the IT Act (which provides for penalty and compensation for damage to computer systems), would go a long way in helping a layman understand remedies available to him.  In the words of Ms. Napinai, “While talking about Civil, Criminal or IPR laws, we are looking at verticals, whereas Cyber laws is a horizontal which percolates each and every vertical.” Specificity and clarity of laws would thus assist users, police as well as courts. Ms. Nappinai also pressed on the urgent need for the introduction of a specific cyber security law.  The new cyber law could also help combat online piracy as, at present, even the term is not easily defined.

 

Talking about the new Personal Data Protection Bill (PDP Bill), Ms. Nappinai observed that this bill, if enacted, would change the manner in which targeted advertising works.  The collection of data, its processing, usage, sharing with third parties, and its deletion will all be changed once the bill gets the assent of the President. Even collection of viewer information for TRPs would be goverened by the data protection bill, once it becomes an act. The proposed legislation will closely monitor the collection and profiling of data. The entity collecting the data, its analytics, its marketing, profiling, or a study of that data would need to ensure compliance with the bill in terms of the manner in which the data will be collected, used, and retained. All this is in addition to the mechanisms related to advertising under the Consumer Protection Act.

Ms. Nappinai was of the opinion that the PDP Bill would also offer increased support to start-ups. Even though there are compliance standards, these compliances only look burdensome at the teething stage; once they start getting implemented, they start syncing and become easier to comply with. It is hoped that the DPA would not work ultra vires its powers, and in case there is opacity and clarity is required, it would also clarify to help the start-ups and businesses. She added that it would be helpful if the DPA would bring out a guidance document assist entities in the process of compliance with its regulations.

The PDP Bill also  borrows from the General Data Protection Regulation (“GDPR”) of the European Union. Ms. Nappinai touched upon the fact that India and its sectors are entirely different from those of the countries in the European Union. For example.  the PDP Bill could have utilized the word “marketing “ in place of the word “profiling” (as used in GDPR) as the latter has negative conotations. Further, the European Union had data protection rules for the past 20 years, but even then, the GDPR gave a two-year compliance period for the companies. In the PDP Bill of 2018, there was a one-year window for the companies to ensure compliances, which was subsequently removed from the 2019 draft of the PDP Bill. The DPA should notify the rules to make it easier for start-ups and MSMEs to comply with the laws. She however expressed the view that the industry would have sufficient window to comply with the PDP Bill once enacted.

 

With regard to non personal data, Ms. Nappinai stated that the provisions of mandatory data sharing and sharing of propreitory data with government authorities or start ups or MSMEs is still open ended. Even the  report of the Kris Gopalakrishnan committee on the non personal data framework indicated the possibility of appropriation of data in public interest. This may be an area of concern from the point of view of copyright protection.

On the need to segregate data related to children under the PDP Bill, Ms. Nappinai felt that one of the main challenges is age verification and the standard of age- it is not clear through the PDP Bill whether India is taking the global standard of 13 years for a child or sticking with its own minor-major concept of 18 years for a child. Nonetheless, the bill lays down compliance requirements for profiling and handling children’s data and sets a higher onus on the intermediaries and significant social media intermediaries. Even collection of data by toys and chat bots on entertainment devices used by children, would be governed by the PDP Bill.

Ms. Nappinai also discussed the work and initiatives at Cyber Saathi. The idea behind Cyber Saathi is that everyone, irrespective of their age or gender, should become a friend to the internet. This cyberfriend should have basic knowledge about the internet and financial fraud. Cyber Saathi came in to ensure that there should be a basic level of knowledge about the individual threats or vulnerabilies in the digital age. The information is in the form of a stories that are easy to understand for a layman. The functioning of Cyber Saathi starts at the grassroots level to ensure a basic level of awareness and provides information and guidance on the remedies.  On a more significant level, it also helps with the policies for cyber laws and cyber security.

Categories
Industry Interview OTT

SHIFTING FRAMEWORKS : HOW OTT IMPACTS LEGAL SYSTEMS

 

 

In this exclusive interview, Anil explains the pandemic’s effect on how audiences consume media, and how it acted as a catalyst to unlock new potential for filmmakers. For the first time, films that were set to release on the silver screen premiered on OTP platforms. Prior to the pandemic, OTP platforms were primarily used for the release of a series rather than a feature film. However, as the world shifted, so did media.

In the wake of this change in content consumption, Anil stresses that lawmakers too, have to set up new laws in regard to things like licensing, royalties, copyright and piracy.

When it comes specifically to piracy, Anil points out that OTP & even traditional channels, lose approximately 30% of their revenue to “the business of infringement”. “Downloading a movie with a torrent is a thing of the past,” Anil states. “As technology evolves, so does the way piracy happens.” One of the newer modes of operandi for content thieves is through creation of a super-aggregator app. These apps, he explains, circumvent rights management systems and other measures deployed by legitimate content owners to extract content and then make it available on their own platforms. Bringing the pirates to justice becomes further complicated since these platforms are currently not governed by any law, and may or may not be in the same country from which the content was infringed, he adds. “To combat piracy in real time, it is essential to establish a central nodal agency with multi-state jurisdiction that can also coordinate with similar agencies across the world. Such a system can be a symbiotic learning experience as far the whole industry is concerned.”

Elaborating further, Anil says that a central nodal agency can be set up in the Department for Promotion Of Industry and Internal Trade (DPIIT) as the Ministry already handles matters related to protection of IPR. Discussing the recent abolishment of the IPAB, Anil explains the backlog of cases was, in part, related to the lack of a technical personnel involved. Despite this, Anil sees an importance for the body because, “With courts, the judges are…experts in the law.” One recommendation he has is that the courts allow third party involvement to assist with matters of technology and other intricacies of piracy.

A private-public partnership model where private players share their technical expertise with the agency is key to reduce the burden on courts, he reasons. Further, international cooperation has to be considered, even at a legal level. “While IP issues remain largely governed by local rules, the global nature of law make international dialogue also essential.”

Anil concludes that it is imperative to keep the conversation  around piracy alive and relentlessly create awareness to make Indian industry professionals more attuned to said issues.

Categories
Copyright

AIFCC FILES APPLICATION FOR REGISTRATION AS A COPYRIGHT SOCIETY FOR ALL UNDERLYING WORKS IN A CINEMATOGRAPH FILM/ SOUND RECORDING

The Copyright Office vide public notice dated October 27, 2021, notified that the All India Film Chamber of Commerce (AIFCC) has filed an application for registration as a copyright society under Section 33 of the Copyright Act, 1957 for carrying out business of issuing or granting license in respect of creative works i.e., literary, dramatic, musical and artistic works incorporated in cinematograph films or sound recordings. The Copyright Office has invited objections from general public/ stakeholders within 30 days of publication of the notice. Read the public notice and application here and here.

What is All India Film Chamber of Commerce (AIFCC)?

The AIFCC is a Chennai based company incorporated on September 15, 2020. (We did not come across any website of the company or further information on the activities conducted by it other than its Facebook page.)

The application filed by AIFCC mentions in its ‘statement and concerns with copyright laws’ that its core aim is to deliberate to act as a special purpose vehicle between governments and film industry by providing means of knowledge about copyright laws and potentially influence policy decisions for film industry’s good, for which AIFCC created access to producers and technicians under one roof to protect their legal rights under Intellectual Property Right laws.

What will be the impact on the M&E industry if AIFCC is granted registration as a copyright society?

This seems to be the first instance where such a broad application has been filed for issuing or granting license in respect of all creative works i.e., all classes of underlying works in a cinematograph film/ sound recording.

This would entail that if AIFCC is granted registration as a copyright society it would be dealing with all four categories of underlying works incorporated in cinematograph film/ sound recording:

  • Literary works- which could include Script, Lyrics, etc.
  • Musical works- Music composition, background music, etc.
  • Dramatic works- Choreography, stage plays, etc
  • Artistic Works- Photographs, costume designs, etc.

Resultantly, royalties would be collected for authors and assignees of all these categories of works.

As per Section 35 of the Copyright Act, the copyright society should be under collective control of both authors and owners of the rights, whose right it administers. Based on the application filed by AIFCC it appears that it has producer, film director and other owner members within its governing body.

Currently, the following copyright societies are registered in India:

Indian Performing Rights Society (IPRS)Musical composition and associated lyrics
Indian Singers Rights Association (ISRA)Performances (Performers rights )
Recorded Music Performance LimitedSound recording
Indian Reprographic Rights Organization (IRRO)Reprographic rights in the field of literary works

The following applications were filed, status of which is not known:

Screenwriters Rights Association of India  (SRAI)Class of work: literary and dramatic works such as story, script, screenplay, dialogues or any other literary works (excluding lyrics)The Copyright Office had issued public notice inviting objections on October 27, 2020

Status of application unknown

Phonographic Performance Limited (PPL)Class of work: sound recordingIn an order dated May 25, 2021, passed by the Government, PPL’s application for re-registration as a copyright society under Rule 47 of the Copyright Rules, 2013 was rejected. PPL challenged the order and the matter is pending in the Delhi High Court
Cinefil Producers Performance Limited (CPPL)CPPL had applied for registration as a copyright society for cinematographic films.The Copyright Office had issued a public notice on November 22, 2018.

Status of application unknown

South Indian Music Companies Association (SIMCA)As per information from sources, SIMCA’s application for registration as a copyright society was rejected by the Copyright Office.

The existing copyright societies in India have not yet seen the light of a full-fledged implementation of the Copyright Amendment Act, 2012. There are ongoing disputes in relation to publishing royalties as well as performers royalties. Application of SRAI for writers’ society has not yet been accepted for reasons unknown. In such a scenario, if a copyright society is registered for such a broad category of underlying works chaos is bound to ensue.

As detailed in my post here on the flawed copyright amendment of 2012, the verbiage of Section 19(9) and (10) of the Copyright Act does not contain restrictive language on non-assignment or waiver of right to receive royalties by the authors of literary and musical works as provided in Section 18. As a result, it could be interpreted that with respect to works other than literary and musical works i.e., artistic, and dramatic works, there is no restriction on taking waiver/ assignment of the right to receive royalties. This has resulted in agreements for authors of dramatic and artistic works such as a choreographer agreement (dramatic work) or a costume designer agreement (artistic work), having language on waiver or assignment of royalty rights.

One could also argue that the legislative intent behind the royalty related provisions under Section 18 and 19 were intended only for literary and musical works incorporated in cinematographic films/ sound recordings and did not intend to cover other underlying works.

It would thus be interesting to see as to how royalty compliances for all underlying works would be implemented by AIFCC should it receive registration as a copyright society.

The Government in the last few years has called for several stakeholder meetings to discuss the various aspects pertaining to registration of multiple copyright societies as opposed to single copyright society in a single class of work. Read our posts here and here. The industry has been divided on this issue. Those in favour of multiple societies for same class of work are of the view that competition is necessary and users should have choice of multiple societies to avoid monopolistic practices being carried by a single society. Particularly, regional players have been demanding for creation of multiple societies for same class of work.

The Government is bound to receive several objections against registration of AIFCC as a copyright society. It would have to be seen whether the Government is convinced on the necessity to have a single copyright society dealing with all underlying works and particularly focused on the South Indian regional film and music industry.

Image source: here

This article was originally published in IPRMENTLAW.

Categories
Blog Hollywood Industry

A GOLDEN KEY? Film Fund serves as common link between some of the region’s most promising stories for the screen

What does a story about an Indonesian school girl with big dreams, a tale of a modern day pilgrim searching for a place to call home, and an account of two miners from Vietnam confronting the ghosts of the past, have in common? The answer: All are exciting new feature film projects developed with the support of the MPA APSA Academy Film Fund.

The Fund, a joint initiative of the Motion Picture Association and the Asia Pacific Screen Academy, aims to encourage and empower creative filmmakers. The films they feel inspired to make may be unconventional in style and content, may be about contemporary or historical social issues that don’t fit within the conventions of a mainstream industry, or may be in jeopardy of attracting uninvited censorship or political restraint.  The filmmakers may be located outside their own country’s commercial film and TV industries, working alongside them or within them.

Yuni (2021) (Source: Asia Pacific Screen Awards)

 

An Indonesian project entitled Yuni attracted the attention of the Fund jury in 2018 because it was the work of a strong female director, Kamila Andini, seeking to explore the thoughts and emotions of a teenage schoolgirl faced with the pressure of regimented social structures around her. As the film’s synopsis says, “Yuni realizes that when her dreams get bigger, the world around her gets smaller.” Driven to resist the push from family and friends to accept a domestic role in an arranged marriage, she struggles to find a way of pursuing her own preference for continuing study at an advanced level. The communal constraints that surround her include the threat of a virginity test at her school for any students felt by teachers to be “at risk” of pregnancy. Her complex responses to these tensions are the substance and strength of the project, and the submission felt authentic, sensitive, and empathetic. Kamila Adani was nominated for Best Achievement in Directing in the 2021 Asia Pacific Screen Awards for her work on Yuni, which now begins a Festival career around the world. Toronto is the first and likely many more will follow.

No Land’s Man (2021) (Image courtesy of Mostofa Sawar Farooki)

 

No Land’s Man from Bangladeshi filmmaker Mostofa Sarwar Farooki was similarly convincing as a project from the heart. Essentially a classic picaresque fable about a man’s journey through a turbulent life, the project partly drew on Farooki’s personal experiences to examine the progress of a modern “pilgrim” – in this case, a lone, stateless man who moves from one country to another looking for legal status and a place he can call home. In his identity crisis, he has no certainty about his name, religion, or nationality.

Farooki’s remarkable debut feature, Television (2012), about a rural village where the community leaders ban television, signaled him to be an innovative artist supremely committed to making his films in his own way, in the face of innumerable obstacles.

With No Land’s Man, after receiving the support of the MPA APSA Academy Film Fund in 2014, the project went on to participate in the Asian Project Market at Busan in South Korea and was chosen as the best project at India’s Film Bazaar. After receiving the grant, Farooki spent some months working with Australian producer Graeme Isaac pursuing Australian finance so that he could film an episode of the story in Australia. While the location shoot didn’t happen, an Australian actress, Megan Mitchell, remained in the cast as a young woman who meets the pilgrim in the USA. The film moved forward dramatically when Indian star Nawazuddin Siddiqui made a personal commitment to join the team as lead actor and co-producer: “I thought this is our film. It is as much my film as it is Farooki’s, and it needs to get made,” Siddiqui said. With its personal origins, sense of social relevance, urgency, and bold narrative structure, the project commanded attention from the MPA APSA Academy Film Fund and is set to travel far internationally after its 2021 world premiere at the Busan International Film Festival.

Truong Minh Quý, Bianca Balbuena & Bradley Liew (Source: IFFR)

 

An international life also awaits Viêt And Nam, a film now in pre-production, which received a grant from the Fund in 2020. With a Vietnamese director, Trương Minh Quý, and Filippino producers, Bianca Balbuena and Bradley Liew, the film is already crossing boundaries. Trương’s project signals its uniqueness and commands attention when he describes his narrative as “lying between documentary and fiction, personal and impersonal, drawing on the landscape of his homeland, childhood memories, and the historical context of Vietnam.” The submission radiated a sense of urgency and emotional depth in facing issues of profound social dislocation and alienation, with characters still haunted by memories of the Vietnam War decades earlier, and inspired in part by the appalling death of 39 Vietnamese, who suffocated in a container lorry in England in August 2015.

Việt and Nam are two miners who work deep below ground, struggling between their love for each other and their conflicting desires for their futures. In their journeys, together and apart, they confront “the ghosts of Vietnam’s past and the uncertainty of its present.” Nam helps his mother search for the remains of his father, a soldier in the war, with endless hope but no success.  He decides to leave his mother and Việt and finds an agent who can smuggle him abroad.

The Fund was not alone in identifying the strength of this project. It also attracted a grant from the prestigious Hubert Bals Development Fund in the Netherlands. The film is due to be completed in 2022.

These three films exemplify the strength of the MPA APSA Academy Film Fund in promoting authentic and diverse voices from the Asia-Pacific region, and in engaging with filmmakers in fundamentally practical ways, through finance and through endorsement. To be backed by the Fund can raise a project’s profile simply through the association with the Fund’s long list of prestigious recipients, beginning with an Oscar-winner, A Separation, by Asghar Farhadi, in the Fund’s very first year of operation.

With jurors drawn from all sectors of the industry across the Asia-Pacific region, the grants carry with them networking opportunities. Bonds are created and connections made. The Fund’s goal is to promote independent filmmakers in cutting-edge work and to expand and enhance the potential for creative artists in the film domain. Audiences worldwide are also beneficiaries, both in the short term when the film is first released domestically and overseas, and also in the long-term as the film moves onto new services and continues to circulate. It cannot be underestimated too, that the Fund, through cinema, is documenting the social history and helping to stimulate understanding and awareness of communal and historical complexities in ways that would not otherwise be possible. The goal of empowering the open-ended exchange of ideas and experiences at home and abroad makes this Fund much more than an industry assistance agency.

This article was originally published on the MPA-APAC website.

Categories
Industry Media OTT

FORGING GLOBAL CONNECTIONS FOR AN OPTIMISTIC FILMING FUTURE

Creative First is delighted to present an interaction with Rick Ambros, international media and entertainment executive, consultant and producer (India, China, SE Asia, US, Europe), and Consultant and Executive Producer for Applause Entertainment, India.

The discussion focused on the transformation of the online curated content (OCC) segment driven by platforms such as Netflix, Amazon, Disney+ and cinema industry trends. Rick explained that the emergence of global OCC platforms has created opportunities for local producers to explore innovative content and storytelling formats which were lacking in the Indian media and entertainment industry. Mr. Ambros highlighted that revolutionary changes have taken place in the content creation space in the last five to six years, fuelled by changing audience preferences in addition to their exposure to global content.This has opened new opportunities for producers in terms of partnerships that can be forged between Indian storytellers/producers and international players.

On whether OCC platforms directly compete with traditional TV/ broadcasting, Mr. Ambros mentioned that in most countries, there are more viewers on broadcast than on OCC platforms, however the trend of cord-cutting is catching up fast, globally. An important reason being that the best content from linear TV is being shifted to OCC platforms in many markets and new content is being made by the studios exclusively for online content platforms. In India, he elaborates, apart from the major changes listed above, American streamers like HBO Max, Paramount+, Apple, etc. are working on their India strategy since it is a crucial market for them; and the 100% FDI approved policy is a lucrative draw for them to explore this market. Rick predicts that, in light of these factors, the OCC boom in India is likely to continue and may be serious competition for linear TV.

 

On the benefits of working with film commissions and the value of production and tax incentives, Mr. Ambros stated that producers do consider various tax incentives that are available to them and many films are greenlit on the basis of these. In India, a more stable policy at a state and central level will attract more producers. While already a popular destination with the diversity of locations available, the scope for India to be a more lucrative filming destination is promising with the right incentives in place.

On the subject of theatrical releases, Rick had an optimistic view and highlighted that the theatrical experience will continue to be unique in it’s own offering and will see positive growth. Rick also spoke about various content and business startegies adopted by global OCC providers.

For more insights please view the video.

Categories
Hollywood Industry

“The Matrix Resurrections” Cast Reflects on Legacy of “The Matrix”

“Have you ever had a dream, Neo, that you were so sure is real? What if you were unable to wake from that dream? How would you know the difference between the dream world and the real world?”

You might recall these lines from the original The Matrix, spoken by Morpheus (Laurence Fishburne) to Neo (Keanu Reeves) in the film that changed the game for not only sci-fi films going forward, but for what was possible to depict on screen. The effects alone would have made The Matrix a major moment in film history, but it was the story of a terrifying reality beneath the glossy, workaday dream-world we all believe is real that captured the attention of millions. Lana and Lilly Wachowski’s The Matrix wasn’t just an epic sci-fi blockbuster that revealed “bullet-time” visual effects technology to the world, it was also a deeply felt story about the human mind, the capacity for every individual to break free from the prison of comforting conformity and see the world for what it really is.

Then, of course, there were the iconic performances. Fishburne, Reeves, and Carrie-Anne Moss, as Trinity, were the film’s stars. But you’ll recall, as you watch this new featurette from Warner Bros. on the legacy of The Matrix, just how many great performers populated Lana and Lilly Wachowski’s film. Hugo Weaving was pitch-perfect as the malevolent Agent Smith, but so, too, was Jada Pinkett Smith’s Niobe and the wisecracking Joe Pantoliano as Cypher. “Buckle your seatbelt, Dorothy, because Kansas is going bye-bye,” Cypher says to Neo, and he was right. Only the rest of us were on that trip with Neo, too.

Carrie-Anne, Moss Laurence Fishburne, and Keanu Reeves standing against brick wall in a scene from the film ‘The Matrix Reloaded’, 2003. (Photo by Warner Brothers/Getty Images)

 

In the new featurette, the cast of The Matrix Resurrections reflects on what the original film meant to them. Original and current stars like Reeves and Moss offer their perspective on how the film changed their lives, while newcomers recall reacting to the film the same way you and I did. “I left the movie theater just knowing things were going to be different in my life,” new cast member Eréndira Ibarra says. “You can’t quantify how much it changed the world,” adds Jessica Henwick, who plays Bugs in Resurrections. “The best and most iconic thing I remember is Neo dodging the bullets,” says Yahya Abdul-Mateen II, who has a big role in the upcoming film.

The cast makes the point that elements of The Matrix have become so deeply embedded in our culture you might forget that they sprung from the film in the first place. Whether it’s a reference to the red pill or the blue pill, or someone simply mentioning “a glitch in the Matrix” to describe something weird happening, the original film really did have a massive, lasting impact. This is why there is so much excitement to see what Lana Wachowski has cooking with The Matrix Resurrections.

Check out the featurette below. The Matrix Resurrections hits theaters on December 22.

This article was originally published on The Credits.