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.
In this insightful interaction, Mr. Nagpal, MD & CEO, Tata Sky, shares his views on the ever-evolving nature of broadcast, how the sector adapted to the changes brought about by the Covid-19 pandemic, the demographic trends in India’s consumption patterns, and Tata Sky’s strategy going forward. He also shares engaging anecdotes from his extensive travels and experience in the sector.
On the evolving landscape in the broadcast sector, he said that it is this dynamic quality of the sector that makes it an exciting place to be, and that there hasn’t been a time when the broadcast sector wasn’t challenged or professed to be defunct in the future.
Commenting on the ways in which the sector adapted to the pandemic, he said that the broadcast sector was able to serve customers because it was in the process of digitising query-handling processes online before the pandemic struck. A major change that resulted from the pandemic was customer care executives taking calls from home, he remarked.
Regarding consumption patterns of the DTH consumer, Mr. Nagpal stated that the DTH consumer is no different from the cable, YouTube, or any other consumer, and likes to be entertained. He further explained that when there’s a major event like a cricket match or the election results are coming out, there is a certain shift from entertainment to that event, but the core entertainment segment still exists since not every consumer makes the switch.
When it comes to installations and sign ups, there are more subscribers coming in from villages than from cities. According to him, there are two reasons for this: one, the number of people living in villages in India consist of 65-70% of the population, and second, DTH is more amenable for villages since a tower connects 10 or more villages, while wire connectivity is a difficult task to establish in such conditions. Further, South India is a major contributor in new additions to installations since the South has always seen more film production and entertainment addiction, he observed.
Speaking about the opportunities for Tata Sky in the coming future, Mr. Nagpal said the fact that out of 280 million households in India, 100 million still don’t have access to a television is in itself a great opportunity. Further, converting a portion – if not all – of the 40-45 million homes that watch Free to Air, to paid subscribers remains a goal for the near future for Tata Sky.
Expressing his views on regulation, Mr Nagpal feels that there is a need for transparent dialogue between the regulators and industry players, with the aim to find a middle path. This transparency in discussions, which is currently missing according to him, is needed for both parties to do their jobs well.
Tata Sky’s latest offerings combine DTH viewing and OTT viewing both via a single device. When asked if this was a form of cord cutting, Mr Nagpal said that in India, television and OTT will always be “ands”, not “ors”. Elucidating further, he said with the changing digital landscape, some customers who have signed up for OTT have given up on a TV connection, but it is important to note that not all of those customers have done so. Given that it isn’t cord cutting in the true sense, it only makes sense to adapt to distributing on-demand content if the Tata Sky customer wishes to watch it.
On Tata Sky’s encryption standards and preventive measures taken to tackle piracy, he revealed that the signal transmitted from Tata Sky is encrypted in a manner that it cannot be decrypted unless authorised by someone at the company. Further, in the event of someone trying to retransmit the signal, fingerprinting mechanisms such as the 8-digit alphanumeric code help in identifying the rogue connection and stopping it. Tata Sky takes piracy very seriously and is committed to prevent any infringement of content belonging to rightful owners, Mr. Nagpal maintained.
Speaking of traveling to customers’ homes – especially in villages – despite being in the broadcast sector, Mr. Nagpal said that broadcast is actually Faster Moving Consumer Goods and that it is important for broadcasters to meet with customers to figure out customer desires yet unfulfilled by the sector: “We first discover customer need and then use technology to create products and processes to fulfil them,” he stated.
For more insights, view our video with Mr. Harit Nagpal.
The explosion in streaming services worldwide is generating sizable new revenues for Australian content creators –while also posing challenges in maximizing the value of their Intellectual Property rights.
“We have a fabulous opportunity now to exploit a market which is hungry for content to fill streamers’ catalogues,” says Rebecca Hardman, head of legal and business affairs in Australia for See-Saw Films – the company behind a vast body of film and TV works including Lion, The King’s Speech, Ammonite and Top of the Lake. “The challenge we face is in preserving our creative and commercial independence.”
Among the global players, Netflix is the biggest acquirer and commissioner of Australian content. The typical worldwide Netflix contract typically gives producers a healthy fee as well as fully financing the project, butproducers are looking for innovative ways to build a profit-sharing element into deals.
“The producer presumption sitting behind the so-called Netflix models is that there is no back-end (ie, ongoing revenue) because profit sharing is not possible in a streaming world,”says Kate Hynes, head of legal and business affairs atHarrowand Five Bedroomsproduction house Hoodlum Entertainment.
“However, when you look at content subscription models in other industries,there are multiple examples of how profit sharing can be achieved. Plus, the model is evolving constantly.As producers, it is important that we continue to challenge our presumptions and look for new ways to secure long-term financial success.”
Felicity Harrison, director of business and legal affairs atNBCUniversal-owned Matchbox Pictures (Stateless, Safe Harbour as well as co-commissions with Netflix on Glitch and Secret City) says: “One of the challenges producers face when entering a global or rest-of-the-world SVOD deal is the limited potential upside from secondary sales. The terms of SVOD deals are long and holdbacks are extensive. The money being offered is generally enticing and can often close the gap to close whether a program can be financed or not. However, producers are often required to make a call for short- term security vs long-term potential upside.”
Emma Fitzsimons, managing director of Princess Pictures, producer of Network 10’s How to Stay Married and the Hulu-commissioned animated family comedy Koala Man, says: “The market is still evolving. There were deals in the past that effectively removed any significant future revenue from the ROW (Rest of World). I think we’ve got smarter now though.
“If a producer is looking into an all rights deal with a global platform, there are particular deal terms that might be negotiated in addition to a ‘costs plus’ finance model in lieu of traditional percentage of sales revenue. So you might try to negotiate for a second season bonus, a profit share on derivatives such as merchandising and linear sales, and keeping a percentage of the Producer Offset.”
Almost all sales contracts require broadcasters and distributors to take steps to prevent unauthorised access to Australian content. Some contracts specify means of addressing copyright disputes or infringements, which can happen when films or TV shows are licensed to third parties.
Concerns about online piracy which could limit international sales are part of the IP conundrum, but producers feel the levels have been reduced by the combination of the Federal Court issuing hundreds of orders to block illegal streaming and downloading sites and the wider availability of content on dozens of outlets.
“Site blocking will always be important for commercial reasons as well as for piracy,” says Hynes.
Hardman agrees, stating: “I think site blocking is one measure of preventing unauthorised access to content that has been effective to some degree but it’s part of a broader suite of changes in market behaviour – including the dismantling of holdbacks between territories – which have produced a cumulative impact.”
Australians’ appetite for streaming services is growing. Telsyte’s Australian Digital Consumer Study 2021 showed SVOD subscriptions grew more than 40-fold between 2014 and 2020, now totalling more than 16 million. Three in five Australian households were using at least one SVOD service at the end of 2020. The research firm, which monitors 40 platforms, predicts the number of streaming subs will exceed 20 million by 2024.
There will be even wider choices for viewers when ViacomCBS launches Paramount+ (the rebranded and revamped 10 All Access) in Australia on August 11, offering more than 20,000 episodes and movies, charging $8.99 a month– cheaper than Netflix, Stan, Disney+ and Binge.
Last week Amazon Prime Video announced it has commissioned seven Australian original productions and has invested $150 million in 14 local Amazon original series since 2019, creating more than 2,500 jobs across Australia.
That sum includes the newly announced commissions including The Lost Flowers of Alice Hart, a 7-part drama adapted by Sarah Lambert from the debut novel by Australian author Holly Ringland, with Glendyn Ivin directing and Sigourney Weaver playing Alice’s grandmother.
The slate includes Eva Orner’s feature documentary Burning, which centres on the deadly Australian bushfires of 2019-2020; comedies Class of ’07, The Moth Effect andDeadloch; and documentaries Head Above Water and Warriors on the Field.
The federal government’s $540 million Location Incentive program thus far has disbursed $226 million to attract 23 international productions to Australia, generating more than $1.7 billion in private investment, providing more than 13,000 employment opportunities for local cast and crew and creating work for more than 13,800 businesses.
Harrison says: “Deal-making is more exciting with the opportunities presented by more potential partners and being able to reach an immediate global audience from the first release. However additional partners in an international market brings with it layers of complexity, from creator deals through to commissioning deals. Further, the competition that each producer faces while operating in an international context brings new challenges too.”
Vivek Krishnani, an industry veteran, has spearheaded the development and release of several blockbusters in Hindi as well as other regional languages. In conversation with Creative First, he shares unique insights and personal anecdotes on the state of affairs in the M&E industry, including his thoughts on what it will take to revive growth in the theatrical segment.
Talking about the M&E industry’s 5 year trajectory into the future, Vivek points out that while the pandemic has continued to be a challenging time, it has also forced the M&E industry to introspect on how a business can improvise on a new growth strategy. He highlights that though the sector fell 24% ($81.9 billion) ] in 2020, since the process of unlocking the country began, a marked improvement in revenues was observed.
When it comes to the theatrical space, Vivek pointed to markets like China and Japan where, once Covid-19 was brought under control, people came back to theatres, revenues were seen to go off the roof. He believes that the Indian theatrical market will have the same experience.
Speaking of the strategic changes that have come about in the M&E industry post 2020, Vivek said that at the crux of it, the texture of content is changing. Studios are now engaged in solving the question of what content will appeal to what kind of people and on what platform. There is a huge strategic shift being observed in the way content creators are looking at providing entertainment; understanding consumers has become the most important aspect of content creation. As a studio, we are creating films for theatres, but at the same time, we are also looking at creating content for OTT platforms.”
Vivek pointed that the number of subscribers have gone up from 10-15 million to 28 million on SVOD platforms, which means that technology is going to play a major role in the M&E industry going forward.
When it comes to technologies that are most likely to bring the next wave of change in the M&E industry, in Vivek’s opinion, engaging and interactive content like Black Mirror –Bandersnatch is going to be a game changer.VR, a technology that can enable theatres to have a visual spectacle, or provide an immersive experience to audiences will see a huge amount of support coming their way. AI and machine learning too, will come to play a larger role in the M&E industry. To sum up, technology that will make things easier for people who are producing or consuming is something that will have a huge growth. It is then only natural for studios to invest in these technologies – after all if the audience wants a great experience, it only makes sense to give it to them.
On the subject of tax incentives for producers, Vivek said that the single window clearance and state level incentives are very beneficial to productions. It boosts allied businesses in a state, and the tax incentive is a good draw for producers to explore new locations. He believes that it is a huge opportunity for filmmakers to capture the visual splendour, unexplored Indian landscapes have to offer and coupled with tax incentives, it is an icing on the cake.
Imagining what a federal incentive in India should look like, Vivek suggested taking a look at what the rest of the world is doing and then adopting what works for a country like India. He added that a cash incentive would be lucrative but whether it is practical when compared to a tax concession is something that remains to be seen.
With regards to screen density, he said that India is definitely an under-screened market – it has 7 screens per million people, while China has 65 screens per million and the US has 110 per million. He added that the market potential still allows for a bullish take on the growth of cinemas in India. According to him, the focus should be building cinema screens in Tier 2 and Tier 3 cities. He also expressed hope in the promising initiatives by the government to start cinema viewing experiences at bus stops and railway stations.
Touching on the subject of piracy, he remarked that box office revenue would be 5 times more of what it is now if it wasn’t for the threat of piracy. While studios like Sony have been watermarking digital prints and working with industry bodies like Motion Picture Association (MPA) to create outreach and awareness activities, what will bring about real change is the awareness in the consumer’s mind that piracy is akin to stealing, he added.
In conclusion, Vivek said that studios and exhibitors need to utilise content and technology to create experiential opportunities for theatregoers – which is exciting considering the M&E industry is the best place for new, unique and innovative ideas.
The Ministry of Information and Broadcasting (MIB) along with the Ministry of Electronics and Information Technology (MEITY) issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on February 25, 2021 (Rules). This intervention seemed imminent given recent events relating to electronic news media, social media as well as over-the-top streaming (OTT) platforms. This article focuses on the available opportunity for OTT rather than any fragility in the Rules or their manner of issuance. The aim is to highlight the need for filling the gap between freedom for content creation and the responsibility that may be embedded therein. The endeavor is to ensure that the growth trajectory for the world’s fastest growing OTT market is maintained and content creation continues at the same clip and in the same vein.
India is the world’s fastest growing OTT (over-the-top streaming) market and is all set to emerge as the world’s sixth-largest by 2024.Digital media in fact overtook print in 2020 and contributed approximately $ 3.2 billion to the overall media and entertainment market. The segment is expected to grow at a clip of 22% and contribute close to a quarter of the entire media and entertainment industry by the end of fiscal 2023.
This growth has no doubt been accelerated by the rollout of 4G, the relative increase in broadband penetration and the technological ease of access for OTT platforms generally. However, the primary reason for this growth remains the content that has found its voice through this medium. It is reflective of an unaddressed demand that subsists. There has been a hitherto unseen spurt in content creation across the country and anyone with bare minimal facilities stands empowered to create content and find the means to disseminate it. The rise of this industry has been an impressive story of democratization and it may not be incorrect to say that it has received less than its due in public discourse.
There are a few distinctive characteristics unique to OTT which ought to be borne in mind when dealing with OTT platforms. Unlike theater which is public exhibition i.e. exhibition in a public place along with other members of the public, OTT is distinctly private viewing. Further, unlike television, which is also private viewing, it may be fair to distinguish television as being passive viewing while OTT may be considered active in that sense. Simply put, there is an active informed choice made by a viewer in the context of OTT. Not to say that a television remote is not suitably empowering of informed choice as such. Much jurisprudence exists in the context of the traditional mediums, but we will not delve into those aspects in this article. Suffice to say that exhibition of content in public places and viewing in your own residence / private property is different and ought to carry a distinct legal application especially when active informed choice is involved.
Speech and expression (its creation and dissemination) are at the core of the entire creative industry including OTT and stand to benefit immensely from a light touch approach. The products and processes involving creativity need to be treated and regulated distinctly. Indian Courts have consistently preserved the preferred treatment required for the creative industry. Content by its very nature can be polarizing. To say that content must receive universal sanction would be an exercise in futility and a gross travesty on speech and expression. As has been held by the Supreme Court:
The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance in the political sense, we must also promote a culture of open dialogue when it comes to societal attitudes.
The Supreme Court has further held as recently as in 2015 that Indian Courts have moved towards the contemporary community standards test when dealing with subjective matters used to define “public order”, “decency” or “morality” i.e.
Thus in Directorate General of Doordarshan v. Anand Patwardhan this Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject-matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary, artistic, political, educational or scientific value.
Embedded into these observations is the tacit acknowledgement that ideas and opinions expressed through any form of creative speech must be free flowing and without hindrance save for any valid exercise under the specific limitations to Article 19(1)(A) of the Constitution. These limitations have been permitted to curtail free speech by Courts only by way of a valid law passed by parliament prescribing the least intrusive measure into the freedom.
The Rules issued by the Central Government include the requirement to:
comply with the prescribed content code and content classification requirements;
follow a three-tiered grievance redressal for addressing complaints regarding non-compliance – tier 1 being redressal by the OTT platform itself, tier 2 being redressal at the level of self-regulation body; and tier 3 being redressal at the government level; and,
access controls for content classified above a particular age.
The Rules also set out a Code of Ethics which proposes certain principles on the basis of which publication of content itself must be evaluated by a publisher as well as its classification. The Rules have since been the subject matter of some preliminary judicial scrutiny but there has been nothing to dislodge their presumption of validity as on date.
Striking the Right Balance
Given the pre-eminent rights involved, it is not only important for the relevant laws to be framed in consonance with the constitutional mandate, but equally important for its application to be guided by well-established principles laid down by Indian Courts. It is the collective duty of civil society as well as the Central Government to nourish and support the constitutionally preferred right of speech and expression and find the right balance as we chart the road ahead. Towards this endeavor, the following could be some starting points:
Light touch implementation;
Industry level regulation (i.e. grievance redressal at tier 1 and tier 2) should be the norm;
Invocation of the more stringent provisions only in the rarest of rare cases with intelligible criteria to minimize misuse; and,
Contemporary community standards as the test for determining all subjective decisions relating to publication or the classification of any content.
With the right manner of implementation, the industry may be in a position to find a way to continue on its trajectory of growth and creation of world quality content while providing a mechanism to suitably deal with those exceptions which fall foul of constitutional parameters.
Disclaimer:This article contains the views of the author alone.
Over the top (OTT) as we all know refers to entertainment, educational, informative content including TV shows, documentaries and offerings that are made available to any person accessing the same via the Internet through either a subscription or free through advertisement model on their electronic device of choice by means of an app or a website. Consumers have been unshackled from the time and place based restrictions that existed for accessing content in theatres or owning a television. OTT’s in recent times have gained surge in popularity with an increasing amount of affinity backed by accessibility and affordability, thanks to the combined efforts of government and telecom industry in furthering the cause of internet penetration.
While OTTs began their journey by hosting content they also became producers of content and behave differently from video-on-demand (VOD) services. OTTs have rapidly evolved and have democratized accessibility that was largely dependent on content from mediums like television, cable, DTH, theatres and viewing houses. Being the largest democracy, India is a thriving ground and fast emerging as one of the top few countries for online curated content and as per industry reports, from Rs.4300 crores in FY2019, the online streaming industry is expected to grow to Rs. 17,400 crores by 2024. This segment also calls itself the Online Curated Content (OCC) industry and there are already over 40 OTT players operating in India from amongst over 60 operating globally.
In terms of regulations in India the television and broadcast media is governed by the Cable TV Network Act 1995 while cinema by the Cinematograph Act, 1952. Article 19(2) of Constitution provides for reasonable restrictions, the IT Act has necessary provisions that can be evoked when necessary for objectionable content with powers to block access. There were no specific laws or rules for regulating OTT platforms as this like all other internet based disruptive innovations was a new form that left regulators around the world grappling while making consumers feeling empowered through ease of legitimate access to a wider range of content from multiple geographies and languages exposing them to an expansive realm of experiences and content which were regional and international in nature.
With increasing popularity and penetration of such curated content, the Government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethic Codes) Rules, 2021 and elaborated various parameters that intermediaries of all shapes, forms and sizes need to adhere to in coming times. To be fair the government on its part has taken a progressive view and OTT regulations have now evolved into a soft-touch and responsible self-regulatory model unlike other countries that have far more stringent regulations like Singapore, UK, Australia, Turkey, Indonesia, UAE etc.
The MIB in February, 2021 released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules 2021 which lays down various compliances for social media intermediaries and also proposed a three-tier self-regulatory model for OTT platforms. Furthermore, Tier 1 and Tier 2 of the proposed self-regulatory framework does not see interference from the Government. As per these Guidelines, OTTs are required to self-classify their content into five categories, namely- Universal (U), U/A 7+, U/A 13+ and A (Adult). These platforms are also required to implement stricter parental controls for all the content that is classified as U/A 13+ or higher. Apart from these newly introduced self-regulatory Guidelines, online content is already governed by multiple Laws such as the IT Act, IPC, 1860, the Indecent Representation of Women (Prohibition) Act, 1986, Protection of Children from Sexual Offences Act, 2012, Copyright Act, 1957, etc. The COTPA (amendment) bill proposed by the Ministry of Health has also incorporated provisions that target usage of tobacco and its glamorization in content by OTT platforms.
That said, takedown compliances and the requirements for having a compliance officer around the clock for grievance redressal needs to be approached in a more practical manner to make it implementable through mutual engagement to reach a solution rather sounding as being ordered to, without being given a fair hearing. The industry has overall lauded the government’s efforts for appropriately identifying the scope and contribution of these OTT platforms and suggesting a model that moves significantly away from pre-certification or censorship.
India has emerged as one of the most valuable contributors to quality content creation across the globe. The content generated in India has been witnessing recognition at an international level with audiences globally now accessing Indian content. A supportive environment will ensure that the economic potential of this employment and revenue generating sector is maximised. The artistic freedom that content creators and curators are provided with has made India feature on the world map as one of the most significant contributors to works that has cinema diversify. OTTs are driving the shift for the sector by reducing its dependence on the “risk heavy” conventional models that required a big star or a banners to promote and launch. OTTs have catapulted many emerging actors and artists to ”superstar” status and promoted talent in the artistic fraternity both behind and in front of the camera thereby triggering more choice, options and livelihoods.
OTTs have however been also at the centre of controversies due to certain content that may be considered contrary to beliefs of certain sections and may require housekeeping measures to be put in place so that well taken shows and artistic content and efforts of months do not get trivialised due to controversial aspects of a few seconds. Most of the content today is of contemporary nature and is curated to cater to different types of consumers with varying preferences. The personalized nature of OTT platforms available in a more consumer-friendly environment has resulted in the segment experiencing growth and wider acceptability. However a responsible and responsive approach from the OTT sector with an equally progressive approach from government would work wonders for the entertainment industry in India in achieving the intent of these regulations. A government- industry- governance (GIG) model is required for this sector to grow seamlessly.
As the OTT market develops further with broadcasters also breaking into the segment, it is essential that the self-regulatory model is strengthened by granting it necessary legitimacy through a government and industry collaborative governance model. Considering the vase expanse and quantum, it is not practically possible for any Government to micro-regulate content. The segment is becoming central to the future of infotainment which makes is critically important that the sector is not pushed the path of over regulation.
Rameesh Kailasam is President & CEO, IndiaTech.org. He is a public policy professional who writes on policy and regulatory challenges for the internet-based economy, start-ups and investors.
IndiaTech.org (TSIA) is an industry association representing Indian consumer internet start-ups, unicorns and investors and strives to promote ease of business and a conducive business environment that involves easier access to primary markets, policy and regulatory interventions to promote industry growth for the entire ecosystem and its investments. For more details visit www.indiatech.org