Creative and Green Economies — Publications — Esya Centre

Creative and Green Economies

Policy Study on Financing Green Infrastructure in Rajasthan

This comprehensive report highlights the limitations of public financing and the need for collaborations such as public-private partnerships, green sustainable development loans and infrastructure investment funds. It proposes a strategic financing plan for green infrastructure at the state level to align financial and infrastructure planning to achieve sustainable development and climate change mitigation goals in Rajasthan.

New-Age Digital Consumption in India: A Survey of Social Media, OTT Content and Online Gaming

Description: This report examines the consumption and engagement patterns of users in India’s digital market. Three services from the digital consumption basket – social media, over the top (OTT) content services and online gaming – are in focus here. Each of these has witnessed sharp growth in its user base, revenues and innovation in recent years. The three services have also had a significant impact on users’ time-use for skill development, networking, and leisure/entertainment.

Attribution: Professor Rajat Sharma and Dr Vikash Gautam. New Age Digital Consumption in India: A Survey of Social Media, OTT Content and Online Gaming. July 2023, Esya Centre.

Regulating Media Ownership in India: Challenges and the Way Ahead

Description: In April 2022, the Telecom Regulatory Authority of India (TRAI), the telecom and broadcast regulator, released a consultation paper (CP) on ‘Issues Relating to Media Ownership’. The Esya Centre and the Internet Freedom Foundation brought together media business owners, journalists, academics, and other stakeholders for a roundtable on media ownership in India. The stakeholders discussed various issues raised in the CP, including the links between plurality and ownership concentration, the adequacy of the existing legal framework, and difficulties in assessing ownership and control. This paper presents key takeaways from the discussion on the central aspects of the TRAI CP. It also suggests recommendations for policymakers on how the regulation of ownership in media markets can be improved.

Attribution: Mohit Chawdhry. Regulating Media Ownership in India: Challenges and the Way Ahead. March 2023, Esya Centre.

Quantification of Intangible Cultural Assets

Description: A study on Quantifying the Contribution of Intangible Cultural Assets (ICAs) to the Economy of Rajasthan, under the aegis of the Chief Minister’s Rajasthan Economic Transformation Advisory Council (CMRETAC). It lists out a comprehensive set of policy recommendations for protecting, preserving, and promoting ICAs in the state. This is a pioneering study in the country, owing to its state-wide coverage.

Attribution: Quantification of Intangible Cultural Assets. December 2022, Chief Minister Rajasthan Economic Transformation Advisory Council (CMRETAC), Department of Planning Rajasthan, and Esya Centre.

Streaming Platforms and the Call for a Level Playing Field

Synopsis: This paper is to understand what the clash between traditional TV distributors and streaming platforms is really about, and if tighter regulation is indeed the answer to the problem or if a solution lies elsewhere.

Attribution: Megha Bahree. Streaming Platforms and the Call for a Level Playing Field. June 2022, Esya Centre.

Skewing the Pitch? Implications of expanding Section 31 D of the Copyright Act to Internet Broadcasters and Online Streaming Services

Description: The report critiques a parliamentary committee's recommendation to extend statutory licensing to internet platforms in India, arguing it could undermine creators' rights and reduce the value of musical works due to piracy. It examines the potential impact of broadening Section 31D of the Copyright Act on creators' negotiating power and earnings, especially in the digital music consumption context. The article also explores international licensing reforms as alternatives that protect public interest and creators' income, suggesting a careful reassessment of statutory licensing's extension to digital streaming services.

Attribution: Noyanika Batta. Skewing the Pitch? Implications of expanding Section 31 D of the Copyright Act to internet broadcasters and online streaming services. June 2022, Esya Centre.

A Screen and A Mirror: Seven Decades of Indian Cinema

Description: The report delves into cinema's transformative role in storytelling and societal impact, highlighting its universal appeal beyond the elitism of literature and high art. It examines cinema's power to influence, citing historical misuses like D.W. Griffith's racist narratives and Nazi propaganda films. Focusing on post-1947 India, the report explores how cinema became a pivotal medium for shaping national identity and reflecting the country's diverse socio-political landscape, offering insights into the complex interplay between film and the formation of community identities in the world's largest democracy.

Attribution: Vani Tripathi Tikoo and Akshat Agarwal. A Screen and A Mirror: Seven Decades of Indian Cinema. Special Issue No. 207, December 2021, Esya Centre.

Embracing Nonlinearity: The Future of India's Entertainment Industry

India’s media and entertainment industries have always been an important part of our national story. As a young nation born in an era where film and radio were in their infancy, we have seen our triumphs and tribulations reflected in the mass media from the very start. These industries have also become important contributors to Indian economic prosperity. In recognition of their importance, the Union government officially designated audiovisual services as one of 12 ‘champion service sectors’ in 2018.

The sector is witnessing change at breakneck speed – developments in technology, notably the internet and over the top (OTT) content have indelibly changed the creation, distribution and consumption of content. The growing OTT ecosystem offers flexibility to creators and consumers, expands choice, and lowers distribution and search costs. Other developments such as strides in artificial intelligence, virtual reality and augmented reality, are opening up new possibilities in entertainment, creating entirely new categories of products. In its response to these changes, India could potentially propel the sector to new heights and make the country a global leader in entertainment.

To frame a suitable response, it is important to imagine what the future of entertainment will be. How will storytelling, which is at the heart of entertainment, change with developments in technology? While stories take many forms – from the oral epics of ancient bards to slick modern video games – their narration and consumption form a central pillar of human existence. Storytelling has evolved with technology, with the flexibility of oral tales yielding to the standardization of print. Today we are on the cusp of another transformation: from linear storytelling in the printed word, television and film, to a more dynamic and nonlinear mode. Artificial intelligence, virtual reality and augmented reality offer new and immersive ways for people to engage with stories. In the future that emerges from current trends, entertainment will become a more dynamic, non-linear and immersive process, highly personalized to fit consumer desires and needs.

We examine the factors that can make India a dominant force in this landscape. The country has three innate strengths we must leverage. Its cultural heritage is ancient and diverse, and remains underrepresented on the world stage. It is also well suited to the nonlinear entertainment of the future, as it contains many traditions of oral storytelling that yield multiple threads from a common recognisable narrative. Third, India is one of the world’s largest consumers of data, with thriving creative industries. Our creators are prolific in terms of output, but lag behind in commercializing their works to generate greater economic value. To achieve this, India can learn from the experience of countries like South Korea, which has emerged as a global entertainment hub.

Certain transformations are urgently required to achieve this outcome. We need to promote creative freedom, which can be done through industry-led standards, as is the practice in countries around the world. This will require active and continued engagement by the industry, as well as recognition and support from the state. Second, we must focus on building our hardware capabilities. The bundling of content with devices is already ubiquitous. And finally, we need to move to a principles-based approach to regulation, which would ensure consistency of purpose across the expanding range of technologies in the media ecosystem.

Attribution: Shekhar Kapur, Vani Tripathi Tikoo, Akshat Agarwal, and Vivan Sharan, “Embracing Nonlinearity: The Future of India’s Entertainment Industry,” Issue No. 005, November 2020, Esya Centre.

History of TV Broadcasting Regulation in India

According to the Broadcast Audience Research Council over 197 million Indian households had a television connection in 2019.1 As of July 31, 2020 the Union Ministry of Information and Broadcasting (MIB) had permitted 920 TV channels to operate. The television broadcast ecosystem has three stakeholders: broadcasters, distributors, and consumers. Broadcasters make content for TV and distributors provide it to consumers using one of four technologies: cable, direct to home (DTH), head-end in the sky (HITS) or internet protocol (IPTV).

A complex web of actors regulates the broadcast ecosystem in India, including the MIB, TRAI the Telecommunications Regulatory Authority of India, and self-regulatory bodies such as the Broadcasting Content Complaints Council and the News Broadcasting Standards Authority. The Department of Space and the Department of Telecommunications’ Wireless and Programming Coordination Wing regulate the use of satellites and spectrum.

The Telegraph Act 1885 and the Indian Wireless Telegraphy Act of 1933 require broadcasters and distributors to register their service. The Cable TV Network (Regulation) Act of 1995 (CTN Act) formalized this registration. At the last mile, local cable operators register with post offices in their territory. State governments have empowered Monitoring Committees at the state and district levels to enforce provisions of the CTN Act– mainly its programme and advertising codes.

Since 2004 the broadcast sector has been regulated by TRAI. The central government expanded the Authority’s powers in 2011 through an amendment to the CTN Act, which together with a 2004 notification from the erstwhile Union Ministry of Communications and Information Technology empowers TRAI to regulate tariffs, including the MRP of channels, the terms of interconnection between broadcasters and distributors, and standards for quality of service at the consumer end.

TRAI’s legacy in the broadcasting sector is one of excessive economic regulation and restrictive price controls. Having expanded its regulatory remit over broadcasting the State did not enhance expertise or capacity, within TRAI or the quasi-judicial Telecom Dispute Settlement Appellate Tribunal (TDSAT). The result has been formulaic, TRP driven television content, and higher costs for subscribers3 and there is no mechanism to enforce quality of service at the last mile.

Since the CTN Act in 1995, Parliament has thrice considered a specialised regulator for the broadcasting sector. On numerous occasions Parliament and specialised committees such as the Nariman Committee have backed the proposal for a specialised regulator, and seminal judicial pronouncements including the ‘Airwaves Judgment’ have highlighted the need for a specific law and a specialised regulator for the sector. Despite these efforts TRAI continues to regulate the broadcast sector, although its oversight was meant to be temporary. This brief explores the history of attempts to introduce a parallel regulatory regime for broadcasting in India, which may help explain why governments have always preferred to expand TRAI’s powers rather than establish a specialised regulator for broadcasting.

Attribution: Varun Ramdas, “History of TV Broadcasting Regulations in India,” Policy Brief No. 204, Oct. 2020, Esya Centre.

Modernising Collective Copyright Management in India

This brief explores the reform of collective copyright management in India. Section 1 sets out the current landscape while Section 2 describes the models of collective management used in other jurisdictions – Brazil, the Nordic countries, the European Union, the United Kingdom, and the United States – and also details some digital solutions. Section 3 concludes with takeaways for India and recommendations for reform – including legislative and administrative reform, structural reform in copyright societies, and increased transparency. Ultimately, the effective functioning of any collective management system will require implementing the Copyright Act’s mandates for CMOs, and ensuring the efficient functioning of administrative bodies in the copyright ecosystem, for effective redressal. While the Copyright Act does provide some safeguards, as discussed, there is ambiguity in the text on its applicability to various organisations. Therefore, there is an urgent need to amend the Copyright Act, reform the functioning of the Intellectual Property Appellate Board, and streamline enforcement mechanisms.

Attribution: Aishwarya Giridhar, “Modernising Collective Copyright Management in India,” Policy Brief No. 203, Oct. 2020, Esya Centre

Compulsory Licensing for Radio-Play Of Music in India: Recent History and Economic Context

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Compulsory licensing of sound recordings is practiced in different countries, though the trajectories and rationale for arriving at this framework may differ. Developing countries often introduce measures to protect “infant” industries, but policy persistence can make subsequent changes hard. In 2010, the Copyright Board of India passed an order prescribing 2% of net advertising revenues to be paid by radio stations as compulsory license fees to copyright owners, citing the infancy of the private radio industry and the lack of access to music in India. Since the original order, the private radio industry has matured in size, coverage and listenership. Access to music today is facilitated through a far-reaching radio network, as well as widespread mobile and internet usage. The original order will be reviewed in September 2020.

The immediate issues that arise from this order include lack of clarity who the order applies to, a potentially short-sighted approach through subsidizing the radio industry at the cost of the underlying music industry, and a long lock-in period that fixes the rate despite advancements in broadcasting technologies. The radio industry has grown in revenue at an annual average of 15.6% over the past decade. Companies have expanded into new distribution platforms and revenue sources such as online platforms and YouTube, and can be expected to benefit from digital transmission, which allows multiple stations to be broadcast on a single frequency.

With a large number of private and public radio stations that together cover 92% of India geographically and 99% of the population, access through radio has arguably been achieved. In addition, consumer surveys show listeners have affordable access to music via the internet on smartphones.

Given the advancements since the original order, the main recommendation of this paper in the review by the IPAB that is coming up in September 2020 is to aim to determine the fair market value for music in the Indian market and try to achieve the “efficient” outcome. These cannot be currently determined due to lack of data in the public domain, but the regulator can calculate this with data requested from the radio broadcasters and applying strategies described in the past literature for countries with mature markets. Any positive or negative spillovers from the radio industry in terms in of exposure and substitution as well as on the diversity of content can be then be incorporated to adjust the initial allocations.

Attribution: Review of Economic Research on Copyright Issues, 2020, vol. 17(1), pp. 60-77

Note: This paper, published in the RERCI, is shared here with the author’s permission, who is a Fellow at the Esya Centre. It is not a co-publication.

COVID-19 and India’s Media and Entertainment Sector: Recommendations for Recovery

The Reserve Bank of India (RBI) expects negative economic growth this year. The slowdown has adversely affected production and distribution across most industries, and will likely hit markets fuelled by discretionary spending the hardest. These include the Media and Entertainment (M&E) sector— comprising TV, radio, print and digital media, as well as Over the Top (OTT) platforms for audio and video streaming—which is expected to see an “L-shaped recovery”.

In April 2020, the Observer Research Foundation (ORF) and the Esya Centre organised a roundtable to identify the M&E sector’s challenges, emergent trends, and potential pathways to recovery. The discussion was framed using the triad of (a) policy and regulatory environment; (b) future of work and of production; and (c) the imperative of value preservation, with a focus on achieving consensus on remedial action. The key government ministries and regulators that were discussed include the Ministry of Information and Broadcasting (MIB), which plays a central role in the M&E sector. Other relevant nodes include the Ministry of Finance, the Reserve Bank of India (RBI), and the Telecom Regulatory Authority of India (TRAI).

This special report builds on the insights shared during the ORF-Esya Centre roundtable. The following were the key themes that emerged from the discussion:

i. The M&E sector must offset growth slowdown through investments in production efficiency, human capital, and innovation.

ii. The Government must provide a level playing field to functionally similar industries, by deregulating traditional industries like TV, radio, and print, and allow them to compete with digital counterparts through value for money services, product differentiation, enhancements in consumer experience, and choice.

iii. The Government must enable digital transformation by increasing economic freedom for traditional M&E businesses to operate, and by easing digital payment frictions and promoting their wide adoption. In addition, the Government must nudge traditional industries towards better quality of service for its own sustenance.

iv. A focus on M&E exports can be leveraged to offset contraction and reallocation in domestic consumer spends. This requires a strategic approach and public-private collaboration to increase export competitiveness. Lessons can be learned from best practices from other jurisdictions.

v. Economic crises lead to a decline in margins across all rungs of the supply chain, and Micro Small and Medium Enterprises (MSMEs) in M&E will be most affected. Consequently, there is a need for industry and government to collaborate in mapping and targeting MSMEs with capacity-building measures to improve firm productivity.

vi. Cable TV households represent low-hanging fruits in terms of expanding high-quality broadband connections. They also represent addressable demand for video content – which accounts for a large share of broadband consumption globally. Resource sharing, and simpler right of way regimes are required.

Attribution: Vivan Sharan and Laetitia Warjri. “COVID-19 and India’s Media and Entertainment Sector: Recommendations for Recovery,” Special Report No. 109, June 2020, Observer Research Foundation and Esya Centre.

Towards a National Broadcasting Policy: For an Industry in Transition

Since the introduction of broadcasting (radio in 1927, which later included TV broadcasting in 1959), the broadcast industry has become a key part of India’s social fabric. For instance, broadcasting has served as a key medium for the government to disseminate information to the masses, and serving as a mirror to society. In terms of monetary value, broadcasting generated revenues of INR 771 billion in 2018, which is projected to increase to INR 994 billion by 2021. It was also estimated by the Media and Entertainment Skills Council (MESC) that the broadcasting industry would have employed 3.1 lakh people by 2017.

Further, as a core avenue of dissemination for India’s creative economy, the broadcasting sector has successfully created synergies with other segments of the creative economy, especially films, where distribution avenues remain limited. For instance, India’s screen density remains abysmal, with eight screens per million people, compared to China’s 16, and US’ 125 screens per million people. Unsurprisingly then, broadcast rights accounted for 21.2 percent of the film industry’s revenues in 2018, and radio remains one of the most important platforms for marketing and promoting new music.

Moreover, broadcasting holds immense value economically, socially and politically, serving as a powerful development tool. As recognised by the World Bank, the power of broadcasting is premised on the “widespread accessibility”, “ease of use” of technologies, and the wide spread of distribution networks. Different countries have sought to regulate broadcasting to realise the emancipatory potential of the sector. Countries such as the US and the UK use economic regulation to remedy market failure, whereas Canada and France intervene to ensure that the broadcasting industry promotes creative expression and local cultures and diversity. The EU, with which India’s policy stance is aligned in several technology-driven areas, is situated in the middle of this spectrum. It endeavours to ensure that high-quality and diverse content is available and ‘findable’, and that the widest possible audience has access to such content.

In India, the broadcasting sector was initially leveraged by the state to facilitate national integration and dissemination of information to the masses. With privatisation and liberalisation, the approach to regulating broadcasting changed to enable access and promote competition. Today, maximising access to broadcasting as a policy objective has been largely addressed, as 197 million households today subscribe to TV, with private radio channels in over 100 cities and the All India Radio (AIR) reaching 99.19 percent of Indians in 23 languages. Moreover, 88 per cent of TV households have now been digitised, enabling access to a wider selection of channels and content, and a better quality of service. However, quality and choice of content remains suboptimal, with homogenised and formulaic content serving a characteristically diverse and heterogeneous populace. As per the latest figures from BARC, the highest number of channels in most languages today fall in the general entertainment content (GEC) genre.

On an average, approximately 52.07% of fictional GEC programming in every language consists of dramas and soaps. On the other hand, programming for other genres like horror, action/thriller, and comedy remains miniscule in comparison. Viewership patterns, on the other hand, indicate higher demand for certain genres, in comparison to the proportion of such programming carried.

This is paradoxical, since there are few other industries which are as strongly driven by consumer preferences as the media industries. Cultural sensibilities, demographic diversity and socio-economic evolution directly and constantly affect the success of content offerings and distribution platforms. Therefore, it is imperative for systemic reforms to incentivise the creation of high-quality content which is accessible to the widest audience possible, and to strengthen the forces of market competition towards delivering a rewarding consumer experience. Policy and regulatory impetus should thus be geared towards maximising consumer welfare, which entails providing consumers with high quality, diverse content at affordable prices.

Evolving Scope of Broadcasting

With the advent of internet-based content services, and the growing adoption of IP-based broadcast transmissions, competition in the content consumption and distribution spaces has improved. The TV and Radio industries are seeking to address related market challenges through network expansion, consolidation and strategic leveraging of digital opportunities. For instance, advertising on TV is being bundled with digital advertising to provide better value to advertisers. Similarly, TV programming is being coupled with a host of interactive services on digital platforms to drive stickiness of linear television. Illustratively, on air programming of television shows like Satyamev Jayate were coupled with engagement campaigns on social media. Consumers are also presented with increased content and service standards through personalized feeds on the digital medium. This is complemented by a wide availability of affordable and niche content on demand. Thus, digital content disruptions have presented opportunities for the broadcast industry to provide more interactive and creative content along with a heightened viewer experience.

Owing to these crossovers with the digital content space, the scope of ‘broadcasting’ has come to be revisited in law and policy frameworks around the world. For instance, Canada is currently awaiting recommendations on a joint review of its broadcasting, radiocommunications and telecommunications regulations. In this regard, a key question for consultation is how broadcasting (encompassing radio and TV services) can remain relevant as part of a broader, shifting, communications landscape.

While the understanding of broadcasting was previously based on analogue transmission of content for reception by the public, the meaning of broadcasting has come to be understood more broadly to include encrypted transmissions through cable and satellite as well. For instance, the Prasar Bharati Act defines broadcasting based on “transmission of electromagnetic waves”, and the intention for reception by the public through relay stations. As such, the understanding of broadcasting has typically taken a conjunctive understanding of the following considerations:

a. Means of transmission (wired or wireless): Where wireless implies transmission through Hertzian/ electromagnetic waves as well as satellite, and wired implies by cable or fibre;

b. Control over the transmission (close or managed versus open communication networks): Where the transmission takes place under the control and responsibility of the broadcasting organisation; and

c. Manner of consumption (one to many, and push based): Where the transmission has been made publicly available for reception by the public, such that transmission signals have been emitted; it is immaterial whether or not they are in fact received by specific members of the public.

Such an understanding of broadcasting has thus typically excluded dissemination of content over computer networks, and where the venue and timing of receiving the transmission is chosen by the consumer. However, such definitions are being revisited with the advent of convergence as transmission protocols, means of access, and the range of services rendered across different media overlap.

Distinguishing Regulation from Policymaking

At the same time, regulation of broadcasting continues to remain a complex issue, even if the scope of the sector has come to broaden through additions to existing definitions. For instance in India, the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, includes continuous streaming of content in “digital data form on the computer networks”, which may be accessible to single or multiple users. At the same time, content and carriage distinctions remain vital to defining the scope of services regulated, whereby ‘broadcasting content services’, and ‘broadcasting network services are distinctly defined and corresponding obligations tailored specifically.

The distinct rationale for regulation for radio and TV broadcasting stems from such services being reliant on scarce spectrum: as spectrum is a scarce public resource, its use remains licensed by the government so as to fulfill its role as a custodian of this resource. Furthermore, the Supreme Court has also underpinned the use of a teleport, which is only allowed by operators licensed under the Wireless Telegraphy Act as the basis for regulation of broadcasters. Therefore, TV and radio have been tightly regulated -- beginning from complete monopoly of the government to licensed regulation for private broadcasters post liberalisation and privatisation.

In the internet realm, the absence of dependence on scarce spectrum and teleports does away with the need to regulate services in the same manner as TV and radio. Thus, the contemplation of any regulation of digital streaming must account for the specific market failures that need remedy through state intervention. Notably, digital media accounted for only 11.8% of the Media and Entertainment sector in 2018. However, the absence of regulation has facilitated tremendous growth with digital media being the fastest growing segment at 41.9% in 2018, when it reached an estimated 12-15 million households.

Looking Forward

In this evolving context of broadcasting, it will be necessary for policy and regulatory frameworks to be reimagined to reflect the realities of this transition. To this end, government focus must be on:

1. Enabling TV and radio broadcasters to keep pace with their digital counterparts: It is important to liberalise existing regulatory frameworks to ensure they do not hold back investments in a consolidating and evolving business environment; and

2. Facilitating innovation and consumer welfare: Given the nascence of online media markets, any regulation should be tailored to address clearly identified harms, and based on assessments of its impact on innovation and consumer welfare.

At this stage, it is prudent for government to undertake an independent assessment of the country’s broadcasting landscape. Here, relevant considerations are: trends and likely drivers of change; potential for new services and models; sustainability of revenues; the needs and preferences of audiences; consumer behaviour; platform and distribution developments; and, the efficacy of the extant regulatory frameworks. At the same time, the complex of legislative and regulatory frameworks must be harmonised. Illustratively, the Ministry of Information and Broadcasting (MIB) is currently tasked with legislation and policymaking for television, radio, and the press, while the Ministry of Electronics and Information Technology (MEITy) holds the mandate over all matters relating to information technology and the internet. The ambit for telecommunications, including licensing and policymaking for telegraphs, telephones, wireless and data, along with the administration of the Telegraph Act, Wireless Telegraphy Act and the TRAI falls within the Department of Telecommunications (DoT).In this context, it would be prudent for the MIB to establish a National Broadcasting Commission along the lines of the Digital Communications Commission (erstwhile Telecom Commission), which was set up in 1989 to serve as the policy-making wing of the DoT. Such a commission could include technical members from different arms of government, as well as from industry and academia, who can help shape the future of harmonized policymaking for broadcasting.

Attribution: Research Team, Towards a National Broadcasting Policy: For an Industry in Transition,” Policy Brief No. 201, June 2019, Esya Centre.

Measuring India’s Creative Economy

1. The aim of this study is to provide the first ever measure of the economic contribution of copyright relevant and related rights-relevant industries in India. The copyright-relevant industries are those defined by the World Intellectual Property Organization (WIPO) as “activities or industries where copyright [and related rights] play an identifiable role”.

2. We adopted the methodology put forward in the WIPO (2015) Guide on surveying the economic contribution of copyright-related industries in India, which intends to maximise comparability with previous studies in other countries. We conduct the study for 2016-2017, which is the latest year where most of the required economic indicators are available at WIPO-defined industry categorisations.

3. Our primary data source is the Annual Survey of Industries (ASI) conducted by the Ministry of Statistics and Program Implementation (MOSPI), which gives comprehensive coverage of the manufacturing sector. We also aggregate company-level data from the Prowess database published by the Centre for Monitoring the Indian Economy and use this to supplement the ASI data for industries outside of manufacturing. We include data from industry studies such as the FICCI-KPMG report and the survey by the media and entertainment industry Skills Council (MESC) to cover industries outside of manufacturing. For the exports and imports figures, we use the trade data published by the Directorate General of Commercial Intelligence and Statistics (DGCI&S), which gives a comprehensive value for all goods traded. We supplement the exports and imports figures with trade data from the World Trade Organisation (WTO) on audio-visual services.

4. For the selection of industries to include, we used the WIPO guide. WIPO distinguishes four categories: Core Copyright Industries, Interdependent Copyright Industries, Partial Copyright Industries and Non-Dedicated Support Industries. In 2016-2017, the Core Copyright Industries accounted for 44.74% of the value added generated by Indian copyright-relevant industries. Similar to other countries, the Core Copyright industries have the highest share of value added across all copyright-related industries.

5. The economic contribution of Indian copyright-relevant industries has been measured using three indicators: the Gross Value Added (the value added to goods and services used in the production process), employment, and the balance of trade (exports minus imports). Data is taken for the most recent year available (2016-2017). Table 1 summarises our results.

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6. The Gross Value Added (GVA) of copyright-relevant industries amounted to Rs. 888.89 Billion in 2016-2017, or 0.58% of the Indian Gross Domestic Product (GDP)3. The Central Statistical Office reports GVA by 2-digit industries, to which we cannot apply the WIPO methodology. Our calculations cannot include this data, making our overall calculation for GVA an underestimation. The international average from available WIPO studies from varying years is a contribution of 5.48% by mean and 4.83% by median. The share of GVA of creative industries in overall GDP is visibly less for India than that of other countries. This can be partially attributed to the lack of comprehensive GVA data outside of the formal manufacturing sector, but not entirely, as we describe in the next point.

7. As a benchmark, consider the share of creative economy in the partial and interdependent industries, which mainly come under manufacturing. We can compare this to total manufacturing GVA. The share is 2.97% of total manufacturing GVA, which is still lower than median and mean shares to GDP from other countries, globally as well as across Asia.

8. Employment in India’s copyright-relevant industries is approximately 1.1 million workers. The share to total employment cannot be calculated due to the absence of official employment data for 2016- 2017. However, we calculate the share of partial and interdependent industries to total manufacturing employment in a calculation similar to the one for GVA described above using the ASI manufacturing employment data. This gives a share of 2.72% of copyright-related employment in manufacturing. The average share of national employment in other countries equals 5.4%, once again suggesting that the low share of copyright-related industries can only be partially explained by the lack of data.

9. Employment elasticity is high at 0.87 for the set of copyright-relevant industries. The highest elasticity is for the partial copyright industries due to their high labour intensity.

10. Economic contribution was furthermore measured in terms of the trade balance, which equals exports minus imports. Note that this measure captures only goods traded and excludes copyright-related services. We also add in audio-visual services from the FICCI Frames report for 2016 as they are a large component, but data on other services are not available. India is a net exporter in the Core, Partial and Non-Dedicated Copyright industries, while it is a net importer in the Interdependent Copyright industries. Overall, copyright relevant industries had a deficit of USD 16.4 Billion in 2016-2017, while overall India ran a trade deficit. Note that using unweighted data, we would get a trade surplus of USD 34 billion. This divergence is due to several methodological concerns including the absence of trade data on services, the prescribed method for selection of weights, and the detail of HS product code selected.

11. Various methodological and data issues had to be resolved to finalise this study. There are minimal assumptions on industry mappings from the WIPO guide to India’s industry classification, which can often require assumptions for other countries. We make assumptions on assigning shares to narrow industries which overlap with each other, or report their data in an aggregated fashion. We also make simplifying assumptions on the weights or copyright factors, in the absence of firm survey and interview data. For the trade calculations, there is no reliable mapping between industry and product codes, so we matched these by description. Finally, we supplement core datasets with aggregate figures from company reports and industry reports for groups of narrow industries, in the absence of comprehensive data at the narrow industry level that the WIPO methodology requires.

12. For a richer estimate of the size of the copyright economy in India, our recommendation is for government agencies to produce an advanced version of this study. Access to data on GVA at the narrow industry level from the CSO will be necessary to estimating the contribution of copyrightrelated activities accurately. Trade data on services is crucial to capture the copyright economy for India. Estimates of employment from household and small enterprise surveys can be used to capture the informal sector.

13. Several qualitative aspects of the creative economy can also be included for better understanding of the creative economy. Periodic documentation of the copyright-relevant sectors can help understand trends. This study can be considered the first step towards measuring India’s creative economy.

14. The WIPO methodology is more amenable to developed country settings where almost all economic activity takes place in the formal sector. The informal economy remains out of scope in settings such as India. We recommend WIPO consider this in future versions of its guide.

Attribution: Dr. Megha Patnaik. “Measuring India’s Creative Economy,” Report No. 003, May 2020, Esya Centre.

Trends in Copyright Infringement and Enforcement in India

The World Intellectual Property Organisation describes copyright (or author’s right) as the rights that creators have over their literary or artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films to computer programmes, databases, advertisements, maps, and technical drawings. In the first report in the series, we explored the changing role of IP rights globally, shaped by advancements in the digital era. We discussed how copyright has been elevated from being an ‘economic vehicle’ to ‘a communications instrument relevant to cultural policy.’ And how, therefore, copyright laws influence free expression, shape innovations in the digital cultural space, govern information flows, regulate the production and exchange of digital cultural products, and shape social relations of communication. Copyright law gives control to authors and subsequent owners. Thus, writers, artists, musicians, performers, software programmers, publishers, students, researchers, librarians, teachers, readers, movie-goers, and music fans amongst others, exist in a web of cultural and economic relations subject to copyright law. Copyright impacts the information and communication markets as well as culture around the world, its infringement can be seen as both a moral and an economic violation. With the proliferation of the Internet and internet devices, infringement has become seamless and at scale. This report explores the contours of digital copyright piracy and how it affects all kinds of expressions of ideas.

Industry Growth and Piracy

The debate over piracy, and whether it promotes or harms cultural consumption, remains unsettled. The rise of the digital medium for consuming content has added to industry growth but has also aided digital piracy. For instance, online streaming has emerged as the biggest contributor to music consumption. In india, as of December 2018, the value of the audio ott market was USD 250 million, and music consumption per week stood at 21.5 Hours versus a global average of 17.8 Hours..

Using music as a proxy for the content industries would demonstrate the potential of the digital market. Piracy has affected other digital media as well. Illegal streaming reportedly accounted for:

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The Indian Context

The Indian creative industry (largely comprising the media and entertainment industry) is poised to be worth USD 31 billion by 20209 and is expected to create 1.3 million jobs by 2022.10 Although the Indian Government has identified the audiovisual sector as a ‘champion services sector’, much remains to be done to protect and promote investment and innovation in India’s creative economy. The growth of an innovative content ecosystem depends on a clear understanding of the market, the legislative and enforcement framework, and piracy’s technological underpinnings.

The first critical step is identifying why piracy takes place, and what makes India a particularly challenging market in this regard. A recent meta-study of the existing literature found that a predisposition towards digital piracy is influenced by several aspects: personality factors (self-control), personal or psychological factors (neutralisation techniques, attitudes and beliefs), and social and cultural factors (social learning, collectivistic/ individualistic factors). Other determinants included legislation, and efforts by industry, the judiciary, and policymakers to curb digital piracy.

The drivers of digital piracy in India specifically remain unaddressed in recent academic literature. There is no recent and reliable data on the total size or scope of the cultural economy in India, nor the scale and nature of copyright infringement. For instance, while WIPO has calculated the revenue, employment and net exports generated by the creative industries in a number of countries, such a study is yet to be conducted for India.

India presents a number of challenges in combating online piracy for multiple reasons: lack of uniform enforcement mechanisms, the fragmentation of supply chains in cultural industries, emerging business models, the rapid development of the OTT space requiring increased technological investments in media encryption and piracy monitoring, an overburdened judicial system lacking in specialised IP courts, and the absence of a widespread understanding of copyright, among other factors. Content owners thus need to additionally invest in media encryption and piracy monitoring services. Local industry continues to be dominated by promoters and family owned companies, therefore, governance structures tend to be informal, making industry organisation and policy advocacy more difficult.

Centralised and uniform enforcement strategies are difficult to implement in India. ‘Law and order’ is a state subject under the Seventh Schedule to the Constitution, so enforcement initiatives that rely on the police are organised at the state level rather than through any centralised agency with national jurisdiction, making it difficult for enforcement strategies to be implemented uniformly throughout.

In conversations with industry experts we discovered some unconventional factors (beyond pricing and availability) that shape the piracy industry in India. For instance, the factor of time or the ‘windowing’ period is critical to controlling piracy. The less time it takes for a theatrical release to find its way to a legal, more accessible digital medium like OTT, the less users’ predisposition to consume pirated content. In this context, a recent report mentioned that due to the threat of digital piracy across and between windows has prompted many TV copyright owners to shorten delays between releases to different segments of the market. In certain cases where there is a high risk of widespread piracy (e.g. the Game of Thrones series), some content suppliers have moved to a day-and-date approach in which material is released simultaneously across differing outlets and platforms worldwide.

Indeed, the use of OTT platforms has emerged as a strong anti-piracy measure, and with local and international content now available at lower prices on various OTT services, the piracy market in India is bound to undergo certain changes, given the variety of content (international and regional) offered by several legal online content platforms at affordable price points.

Method

This report combines desk-based analysis with semistructured interviews and discussions with practitioners and academic experts. It focuses primarily on the media and entertainment industries, given the availability of previously conducted research and data. It is also rooted in current and future trends, a review of global literature, and specific case studies. In its working paper format, the report was valuably informed by a focus group discussion among experts.

Attribution: Dr. Megha Patnaik, Shohini Sengupta and Aishwarya Giridhar. “Trends in Copyright Infringement and Enforcement in India,” Report No. 002, December 2019, Esya Centre.

Associated Videos:

Contemporary Culture and IP: Establishing the Conceptual Framework

i. Context and Relevance

Successful digital transformation has been explained as “a caterpillar turning into a butterfly. It’s still the same organism, but it now has superpowers.” This is perhaps the most apt way to contextualise the ongoing digital transformations in the formal and natural sciences, social sciences, art, and culture, enabled by new technologies.

Across the world, technological innovations are constantly creating new knowledge, improving access to information, and helping cultures evolve, with digital traces marking every human interaction in the digital space. Coupled with this is the fact that in the last five years, more than one billion people have become new Internet users, and digital connectivity has gone from being confined to economically prosperous parts of the globe, to reaching a majority of the world’s population.

In India, the digital transformation in the past few decades has upended the cultural space in a dramatic manner, engendering the need for new legal, economic, and technological responses. This churn has resulted in businesses investing in cultures of collaboration, in capturing volumes of data and enabling collaborative data sharing. It has also added to a more vibrant and mature ecosystem of customers and partners, and made agility and innovation the key goals of a new ‘digital culture’. In fact, new research suggests that by the year 2021, digital transformation will contribute an estimated US$154 billion to India’s GDP, and increase the growth rate by one percent annually. Interestingly, responses to an evolving digital culture are themselves in a state of flux, mandating reinvention and reimagination of existing frameworks of law, economics, and technology.

The evolution of culture has always been a product of constant borrowing and diffusion. Therefore, cultural systems are not discrete but a continuum, with cultural boundaries being fluid, and constantly shifting. As such, much of the predominant legal discourse reflects assumptions about cultural systems that are no longer accepted in disciplines such as anthropology and folklore. For instance, much of the IP discourse around the world is still struggling to deal with the legal concepts around cultural evolutions that have emerged as a result of creolisation. This is because conclusive legal discourses are unable to form around cultural products that are not “finished” products. Therefore, cultural boundaries blur and disappear, with native cultural entities combining, recombining, re-emerging, and creating cultural expressions that defy strict IP or legal concepts.

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The challenges of a new digital environment make it imperative for scholarship in India to develop around new legal, economic, and technological frameworks. These frameworks must evolve to bring the fruits of the digital cultural space to people, while fostering innovation, competition, diversity and choice. Figure 1 gives a visual representation of the interactions between culture and IP.

Further, the role of cultural evolution and the correspondent development of IP doctrine and practice have long been shaped by evolutionary perspectives on human society. Much of the international IP frameworks that developed in the 19th century reflected the national systems of the countries at the negotiating table, and the values that they sought to advance or considered important. For instance, since this was the age of the industrial revolution, cultural production contained in local knowledge like folk music was treated as entirely appropriable knowledge, but not as valid systems in and of themselves. Therefore, local knowledge was not thought to be comparable to the products of industrialization. This is reflected in the way IP systems developed in many countries. For instance, although IP protection in many countries was extended to Geographical Indications, no protection was otherwise given to other forms of local knowledge, reflecting prevailing views concerning the devolution of folklore. Further, international IP frameworks also reflected the role of commercial interests of the countries that were deciding the international legal order.

Conversely, today, the identification of cultural evolution and its elements is fundamental to not just IP, but also other attendant policy choices and questions of economic and business value. This is especially since the operation of cultural resources as valuable assets cannot be denied in the contemporary context, given the business models of creative industries, even though there is still a gap between the development in culture and IP. The gap between culture and IP exists in India as well. For instance, because of copyright law being written with pre-digital technology in mind, artefacts of these assumptions continue in the law regardless of attempts to modernize it. In the EU, there have been significant debates over the new Copyright Directive, the ostensible purpose of which is to modernise copyright rules for the digital age across the region, including increased protections of digital works. In India, similar advances to modernise the Copyright Act, 1957 (Copyright Act) with a view to resolving the debates over increased protection of digital works, intermediary liabilities, and discourses over different approaches to dealing with infringements in the digital space are still evolving.

Further, there is a vacuum in multi-disciplinary research on culture and IP in developing countries as a whole. Most existing research has been focussed on the countries that are part of the Organisation for Economic Cooperation and Development or the global ‘North’. As a result, there is little contextual development in the global south, and particularly in India, over how digital culture and IP interact with each other.

As such, this series will focus on the peculiarities of the Indian digital cultural ecosystem, primarily centred on three relevant stakeholders – users, businesses, and the Government, as detailed in Section 3. We believe that research focussed on the digital culture and IP in India will help all stakeholders in understanding and exploiting digital transformation more efficaciously. More importantly, understanding varying incentives can help stakeholders such as creators, producers, distributors, publishers, users, and policymakers identify common values, which in turn can define future standards in the digital space. To this extent, this series on ‘Contemporary Culture and IP’ will attempt to fill gaps in scholarship and raise foundational questions on law, economics, and policy issues of the future. This foundational paper aims to lay the foundations for future research and undertakes two interrelated tasks: (i) developing the taxonomy and foundational ideas for the series; and (ii) building the foundational frameworks on law and economics for the series to explore in depth, prospectively.

ii. Understanding what Contemporary Culture means for India

a. Understanding digital culture, and who shapes digital culture

Contemporary culture is rooted in the development of digital technologies, making these technologies both powerful catalysts, and sometimes the focal points of cultural change. The local digital ecosystem in India has burgeoned, leading to more virtualisation of group networks and social identities, and convergence of text and audio-visual media. The evolution of technology is in itself a reflexive process that responds to the evolving digital ecosystem consisting of creators, publishers, distributors, innovators, consumers and other stakeholders. While technology has always allowed stakeholders to respond to changes, the digital ecosystem has allowed the response time to decrease, such that stakeholders can now give their feedback almost immediately. For example, digital platforms and social media platforms like Twitter and Facebook now allow citizens to communicate directly with politicians and Government institutions, as well as offering policymakers new channels to listen to and respond to the wider electorate.

Thus, technological and cultural evolution have become interdependent to the point where correlations between the two, and the boundaries between people and technological artefacts have become difficult to establish. Therefore, in the context of India, this series explores the local meaning and impact of digital culture on the three most prominent stakeholders - the users, the businesses, and the Government; and the relationship between new technologies and cultural innovation, and the latent possibilities for such stakeholders to gain from the digital cultural space. Section 3 will chart the reasons for selecting these three stakeholders, and their relationship with each other.

Therefore, a primary focus in this series will be to view these different incentives from an evolving lens, in an attempt to understand why incentives vary, the role of each stakeholder, and the future opportunities and challenges. The series will also explore new roles, and responsibilities for new stakeholders such as intermediary platforms.

b. Identifying relevant digital cultural norms and contexts for defining digital culture

The role of IP rights has gained significance in the digital era, shaping both cultural life, and the conditions of communication and information sharing. For instance, in the case of copyright, scholars have argued that it is not merely an “economic vehicle, but a communications instrument relevant to cultural policy.” Copyright laws of a particular country influence democratic expressions of free speech, shaping innovations in the digital cultural space, governing flows of information in the economy, regulating the production and exchange of digital cultural products like books, music, art, and movies; and shaping social relations of communication. Copyright law gives powers of control to authors and subsequent owners, and regulates the production and exchange of meaning and information. Thus, writers, artists, musicians, performers, software programmers, publishers, students, researchers, librarians, teachers, readers, movie-goers, and music fans among others, exist in a web of cultural relations subject to copyright law. However, in the digital world, copyright laws have also generated a new public idea of communication, participation and production, which favours a collaborative model of shared and cumulative cultural dialogue over a proprietary model of cultural production.

The development of digital cultural norms along with IP values play a critical role in defining each other’s scope. A key part of this series, therefore, will be to explore the relationship between digital cultural norms and IP, particularly in areas where there is significant public debate, and a lack of clear policy. For example, the series will explore public and cultural space occupied by intangible goods that currently lack IP protection, that is, ‘cultural commons’, particularly in the Indian context.

Today, due to commercial-technologies permeating citizens’ lives, including the way we access and consume information, we are far more familiar with the technological contexts of our culture. This familiarity with technology, for instance, in the use of smartphones and television screens, allows us to navigate evolving cultural norms even though the digital cultural space itself is constantly changing due to this participation. However, since the digital cultural space only started evolving a few decades ago, stakeholders cannot rely on any long-standing norms and rules for digital interactions of different kinds. Therefore, stakeholders will now have to develop new cultural norms and commonly shared values, collectively developing rules, depending on the role they play, and their incentives. An example where stakeholders have come together to do so effectively has been in addressing the issue of child pornography on the Internet, by developing a universally accepted norm of restricting child pornography in a digital cultural context.

The varying perspectives on the evolution of contemporary culture brings us to the understanding that there are two schools of thought in this regard - one that argues that the existing cultures might find themselves essentially recreated in digital form as more and more life experiences play out in digital spaces; and the other that argues that dominant digital culture emerging now is a separate culture unto itself. For this series, we understand the term ‘digital culture’ to mean an uncertain combination of both of these perspectives. We will attempt to capture a multi-dimensional, and context-specific understanding of digital culture in this series.

For the purpose of illustration, we present some of the relevant contexts in which digital culture can be understood:

a. The cultural influence of new media environments and the digitisation process that has aided in the development of new digital cultures in media;

b. The development of common values, agreements, and interactions of different stakeholders in the digital society, and the ways in which people, businesses and the Government communicate with each other;

c. The importance of using IP systems creatively and effectively to increase access, innovation and value generation in the digital ecosystem;

d. The values of building a cooperative shared economy, to own and govern the Internet differently in the digital age, to improve income distribution in cultural supply chains, and address the legacy of an informal workforce.

Attribution: Shohini Sengupta and Aishwarya Giridhar.“Contemporary Culture and IP: Establishing the Conceptual Framework,” Report No. 001, March 2019, Esya Centre.