Regulation of OTT Communications Services: Justified Concern or Exaggerated Fear?

Description: Telecom service providers (TSPs) have been pushing for the regulation of over-the-top (OTT) service providers in India since 2015. Meanwhile, OTT firms maintain that their services are not comparable with telecom. The debate centres on two issues in particular: same service, same rules and infrastructure cost sharing. The merits of the TSPs’ demands and counterarguments are explored in this paper.

Part 1 of this paper outlines the demands raised by TSPs and the merits of these from a historical and legal perspective. 

Part 2 of the paper compares OTT regulation trends across some jurisdictions. The aim is to trace the changes made to telecom regulations internationally in response to emerging technologies and ask whether OTTs have been brought under the regulatory regime for TSPs. 

Finally, in Part 3 of the paper, through insights from historical and legal analysis and from a comparative standpoint, we recommend the approach the government should adopt.

Attribution: Noyanika Batta. Regulation of OTT Communications Services: Justified Concern or Exaggerated Fear? January 2023, Esya Centre.

Price Discovery in the NFT Market

Description: This paper examines the price discovery mechanism of non-fungible tokens, or NFTs. That is, how do the forces of supply and demand determine an NFT transaction? We use data on some 55,000 unique NFTs with 16,000 creators/artists, and 15,000 collectors/buyers on Foundation, one of the largest NFT exchange platforms, to address this question.

Attribution: Dr Vikash Gautam and Tamanna Sharma. Price Discovery in the NFT Market. December 2022, Esya Centre.

Market Study on Immersive Technologies in India: Propelling The AVGC Sector

Description: This report explores how immersive technologies will change the way creators produce content and audiences consume it.. The report also assesses the readiness and competitiveness of India’s AR/VR industry and suggests some policy measures that could further bolster the sector based on insights from semi-structured interviews with relevant stakeholders in the AR/VR ecosystem.

Attribution: Vani Tripathi Tikoo, Akshat Agrawal, Varun Kakar, Mohit Chawdhry and Vaishnavi Prasad. Market Study on Immersive Technologies in India: Propelling the AVGC Sector. November 2022, Esya Centre.

Roadmap for a Future-Ready Digital India Act

Synopsis: The Indian Government recently announced that it will introduce the Digital India Act, a new information technology law, that will replace the Information Technology (IT) Act, 2000. Reports indicate that the new legislation will focus on engendering greater “openness, safety, trust and accountability” in the digital economy. The emphasis on accountability possibly means a recasting of the intermediary liability regime, to place greater responsibility on the shoulders of digital businesses. Indeed, it is important to introduce measures that enable the State to safeguard public interest and rights online. However, it is also important that in a bid to usher in greater liability for digital businesses, decisionmakers do not compromise on economic goals, such as the target of a trillion-dollar digital economy by 2025.

This report argues that the goals of achieving economic growth and addressing public interest concerns online are not mutually exclusive. Specifically, it lays out principles and objectives that will enable the Digital India Act to improve enforcement capabilities in the online realm and also grant digital businesses greater regulatory certainty – an important consideration for technological and economic progress.

Attribution: Meghna Bal. Roadmap for a Future-Ready Digital India Act. September 2022, Esya Centre.

The Metaverse Primer: A Technological and Legal Overview from an Indian Perspective

Synopsis: With virtual reality set to take over the internet, the virtual worlds we have seen so far will be transformed beyond recognition. But what exactly is the metaverse? What will it look like? What are the opportunities and challenges it poses? What is the future of the metaverse in India? This report attempts to answer some of the questions that lie at the heart of this technology.

Attribution: Noyanika Batta. The Metaverse Primer: A Technological and Legal Overview From an Indian Perspective. September 2022, Esya Centre.

Offshore Online Betting and Gambling in India: A Risk Assessment

Synopsis: This paper describes how offshore betting and gambling websites are violating Indian law with impunity. By operating from foreign jurisdictions, they are able to evade enforcement actions by Indian authorities. Blocking access to these websites and preventing offshore betting and gambling firms from operating in India is crucial to the welfare of Indian citizens. While mechanisms exist to effect such remedies, they are difficult to enforce for reasons we attempt to identify. We map the offshore betting and gambling ecosystem to understand its scope of operations and the nature of its harms, in order to suggest remedies in India.

Attribution: Priyesh Mishra. Offshore Online Betting and Gambling in India: A Risk Assessment. July 2022, 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.

Perspectives on the Intersection of the Foreign Exchange Management Act, 1999 and the Indian Crypto-Market

Public information suggests that the Enforcement Directorate, India’s primary economic law enforcement and intelligence agency, has begun inquiring whether cross-border crypto- asset activity would violate the Foreign Exchange Management Act, 1999 (FEMA), India’s capital controls legislation. International financial and monetary organizations such as the International Monetary Fund too have called on nations to amend their capital control laws to meet the challenges raised by the sale and purchase of crypto-assets. Empirical assessment of the matter, however, suggests that the link between crypto-assets and capital control evasion is overstated. In this context, the current paper seeks to assess whether crypto-assets can be accommodated within India’s foreign exchange framework. It also suggests ways to regulate the cross-border flow of crypto-assets without hampering the development of the Web3 economy in India.

Attribution: Meghna Bal, Mohit Chawdhry and Dr. Ajai Garg. Perspectives on the Intersection of the Foreign Exchange Management Act, 1999 and the Indian Crypto-Market. May 2022, Esya Centre and IAMAI.

This report is part of a series published jointly with the Internet and Mobile Association of India (IAMAI) that seeks to inform the public on the different policy dimensions of crypto-assets in India and the implications of regulatory decision-making on Web 3.0, blockchain, crypto-assets, non-fungible tokens and the metaverse. With this series, we aim to create a credible and trusted knowledge repository on the Indian crypto-market..

Decentralized Exchanges: Regulatory Perspectives for India

Decentralized exchanges (DEXs) have emerged as an important component of a broader crypto-business segment known as decentralized finance (DeFi) –  an ecosystem where financial activities are carried out through smart contracts rather than intermediaries. On a decentralized exchange, rather than a centralized intermediary a smart contract or a protocol executes trades on behalf of customers. 

The regulation of decentralized exchanges is necessary from the standpoint of consumer welfare as well as anti-money laundering concerns. These issues are more easily resolved in centralized exchanges, where there is an identifiable or real-world entity dealing with users. Decentralized exchanges on the other hand are designed to offer peer-to-peer trading services, where a smart contract rather than an entity facilitates transactions. 

Understanding how to regulate decentralized exchanges and other DeFi services is important for decision-makers globally. In recent months, avenues have emerged towards the “regulability” of decentralized exchanges. This paper traces these pathways, to establish a starting point for regulators in India to approach the oversight of decentralized exchanges.

Attribution: Meghna Bal and Dr. Ajai Garg. Decentralized Exchanges: Regulatory Perspectives for India. April 2022, Esya Centre.

This report is part of a series published jointly with the Internet and Mobile Association of India (IAMAI) that seeks to inform the public on the different policy dimensions of crypto-assets in India and the implications of regulatory decision-making on Web 3.0, blockchain, crypto-assets, non-fungible tokens and the metaverse. With this series, we aim to create a credible and trusted knowledge repository on the Indian crypto-market.

A Framework to Evaluate Non-Price Factors in Competition Regulation

Description: The report examines how technological advancements have transformed competition in digital markets, focusing on the shift from price to non-price factors like innovation, quality, privacy, and security as key determinants of consumer choice. It highlights the challenges competition authorities face in measuring and evaluating these qualitative factors due to their subjective nature and potential jurisdictional overlaps with sectoral regulators. The report suggests solutions, including an integrated institutional framework and consumer surveys, to better assess non-price competition factors and ensure effective regulation in the rapidly evolving digital economy.

Attribution: Mohit Chawdhry. A Framework to Evaluate Non-Price Factors in Competition Regulation. March 2022, Esya Centre.

Crypto-Assets: What are they and how should they be classified in India?

There are over 12,000 different types of crypto-assets, each providing unique services and functionalities. Despite this abundance, there is limited understanding about what these assets are. Moreover, these assets represent a nascent technology that is rapidly evolving. As such, defining and classifying them for the purpose of regulation presents a continuous challenge.

This paper attempts resolve these ambiguities by explaining what crypto-assets are and highlighting the positive and negative aspects of approaches taken by different institutions and jurisdiction to define and classify them. Further, it suggests a way to classify crypto-assets in India to enhance the ability of authorities to effectively regulate them.   

Attribution: Meghna Bal and Dr. Ajai Garg. Crypto-Assets: What are they and how should they be classified in India? March 2022, Esya Centre and IAMAI.

This report is part of a series published jointly with the Internet and Mobile Association of India (IAMAI) that seeks to inform the public on the different policy dimensions of crypto-assets in India and the implications of regulatory decision-making on Web 3.0, blockchain, crypto-assets, non-fungible tokens and the metaverse. With this series, we aim to create a credible and trusted knowledge repository on the Indian crypto-market.

NFTs: A Technological and Legal Primer

Description: This report explores the rapidly evolving world of Non-fungible Tokens (NFTs), focusing on their technological basis, applications in various industries, and the legal landscape. It details the growth of NFTs, particularly in 2021, and discusses their use in art, gaming, and real estate, emphasizing the role of Indian developers. The primer also examines regulatory challenges, including the classification of NFTs under existing laws, intellectual property concerns, financial implications, and potential for money laundering. It offers recommendations for marketplaces and creators to navigate legal risks and suggests that clear guidance from authorities could foster innovation while protecting consumer interests and ensuring compliance.

Attribution: Mohit Chawdhry and Shivani Jha. NFTs: A Technological and Legal Primer. Issue No. 014, February 2022, Esya Centre.

Determining the Relevant Market for Digital Multi-Sided Platforms

Description: The report highlights the challenges and peculiarities of regulating digital platforms in multi-sided markets, emphasizing the need for competition regulators to adapt traditional antitrust tools for digital economies. It discusses the inadequacy of current market determination methods in capturing the complex dynamics of digital platforms, suggests incorporating platform typology and indirect network effects into analyses, and critiques the inconsistent use of qualitative factors in regulatory decisions. The report concludes with recommendations for legislative amendments and the establishment of guiding principles to better address the multi-faceted nature of digital platforms, urging objective, evidence-based approaches for determining market substitutability.

Attribution: Chawdhry, Mohit. Determining the Relevant Market for Digital Multi-Sided Platforms. Issue No. 013, December 2021, Esya Centre.

First Principles for Competition Regulation in the Digital Economy

Description: The report emphasizes the importance of fostering innovation and maintaining competition in digital markets, similar to traditional markets. It highlights the challenges and peculiarities of digital markets, including scalability and influence on socio-political discourse, prompting global regulatory efforts. It critiques preemptive regulation and advocates for principles balancing oversight with innovation incentives, emphasizing the need for a holistic approach to competition, protection of novel business practices, and safeguarding innovation incentives.

Attribution: Bal, Meghna. First Principles for Competition Regulation in the Digital Economy. Issue No. 012, October 2021. Esya Centre

Securing ICT Supply Chains: An Evidence Based Approach

Description: This report highlights the increasing complexity and security concerns associated with global ICT supply chains. It discusses the impact of repeated cyber-attacks on supply chain vulnerabilities and outlines national security measures adopted by governments, such as the exclusion of Chinese vendors and app bans. The report emphasizes the need for a balanced approach, citing the evidence-based executive order issued by US President Joe Biden as a model for securing ICT supply chains without hindering innovation or trade. The brief concludes with an analysis of how the Indian cybersecurity framework aligns with these principles.

Attribution: Chawdhry, Mohit. Securing ICT Supply Chains: An Evidence Based Approach. Issue No. 011, August 2021, Esya Centre.

The Future of Indian Retail: Stories from the Ground

At the end of 2020, we conducted a study to understand the impact of technology on Indian retail in the backdrop of the COVID-19 pandemic. The culmination of this study has been published in the form of a book titled “The Future of Indian Retail: Stories from the Ground”. 

The study documented the experiences of a diverse group of two dozen proprietors of small and medium enterprises that represent the domestic retail market.  The book showcases these voices from the ground through their experiences of interaction with technology. More specifically, it provides perspective on how digital adoption helped sustain some segments of Indian retail and brought the country closer to the vision of an Aatmanirbhar Bharat, even amidst a crippling public health crisis. 

The real-life stories documented in this publication highlight the entrepreneurial spirit and tenacity with which small entities tackled a fundamental disruption in their business due to the pandemic and the ensuing nationwide lockdown. 

At the same time, the book provides valuable insights into the constraints that small enterprises face while adopting digital solutions. As we move towards the digital transformation of industry, dubbed ‘Industry 4.0’, it will be important for policymakers, business forums and industry associations to work together to overcome these challenges. For example, the improvement of underlying infrastructure and logistics mechanisms will require sustained and targeted investment. Similarly, business owners and employees will require skill and capacity building to effectively integrate digital solution into their operations.

Attribution: Esya Centre. The Future of Indian Retail: Stories from the Ground. New Delhi: Esya Centre, 2021.

Associated Media

The Booming World of India's Social Media Apps

Description: This report examines the evolving landscape of social media apps in India, particularly focusing on the surge of short-video apps. The widespread adoption of affordable smartphones and cheap data has led to a boom in internet users, primarily on mobile phones. Despite progress in bridging the urban-rural digital gap, a significant gender disparity persists. The paper explores the economic implications and societal challenges related to increasing online users, especially women, while emphasizing its unbiased research approach.

Attribution: Bahree, Megha. The Booming World of India’s Social Media Apps. Report 010, July 2021, Esya Centre.

Levelling the Playing Field between Traditional and Digital Businesses

Description: This report explores the impact of over-the-top (OTT) services on various sectors, emphasizing the advantages for consumers and businesses in going digital. It highlights the disruptive growth of internet-based services, especially in India's e-commerce sector, prompting calls for regulatory intervention to ensure a level playing field between digital and traditional businesses. The report argues against applying a legacy regulatory framework to digital services, proposing a two-pronged strategy of deregulation and institutional strengthening to foster fair competition and innovation.

Attribution: Chawdhry, Mohit. Levelling the Playing Field between Traditional and Digital Businesses. Report Issue 009, June 2021, Esya Centre.

India's G20 Presidency: Promoting Trust and Inclusivity in a Digital World

Description: This report discusses the G20's evolution as a key global financial forum and its increasing focus on digital technologies. With India set to lead in 2023, it proposes a digital agenda, emphasizing trust-building and reducing the digital divide. Seven focus areas include digital corridors, infrastructure, MSME capacity building, open data, technical cooperation, regional collaboration, and frameworks for emerging technologies like AI and 5G. The aim is to foster international cooperation and inclusive development.

Attribution: Chawdhry, Mohit and Agarwal, Rohan. India’s G20 Presidency: Promoting Trust and Inclusivity in a Digital World. Report Issue 008, May 2021, Esya Centre.