Code of Conduct Template for Self-Regulatory Bodies in Online Gaming

Description: The Ministry of Electronics and Information Technology (‘MeitY’) released proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”) on 2nd January 2023. The draft amendments bring online games and online gaming intermediaries within the scope of the 2021 Rules. The draft amendments establish a self-regulatory framework for online gaming. The adoption of a self-regulatory framework for online gaming reflects an emerging consensus on the suitability of industry self-regulation for digital technologies.

Self-regulation is preferred in digital industries as it tends to be more agile and responsive to technological change than government regulation. In response we put together a template code of conduct to provide a framework that self-regulatory bodies can adopt to govern their functioning.

Attribution: Code of Conduct Template for Self-Regulatory Bodies in Online Gaming. Issue No. 106, February 2023, Esya Centre.

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.

Virtual Digital Asset Tax Architecture in India: A Critical Examination

Description: This report is the first empirical exercise to estimate the impact of India’s tax policy on centralised Virtual Digital Asset (VDA) exchanges, that are similar to stock exchanges for digital assets. It examines the impact of three events on the centralised virtual digital asset (VDA) industry in India, announced on 1st February 2022 during the Union Budget 2022-23: (a) a levy of a flat 30 percent tax on gains from VDA trade applicable from 1st April 2022; (b) a levy of 1 percent tax deducted at source (TDS) on transactions above INR 10,000 from 1st July 2022; and (c) the provision disallowing the offsetting of losses applicable from 1st April 2022s.

Attribution: Dr. Vikash Gautam. Virtual Digital Asset Tax Architecture in India: A Critical Examination. Special Issue No. 208, 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.

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.

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.

Devising an Emerging Market Perspective for Competition Regulation in the Digital Age

Description: This report is first in a series on Indian Perspectives on Competition Regulation in Digital Markets co-published by the Observer Research Foundation (ORF) and the Esya Centre. It is a synthesis of insights that were shared during a discussion, convened by the Esya Centre and ORF, among stakeholders belonging to the public sector, industry, academia, and consumer interest organisations as a first step towards formulating a position on digital competition regulation for India.

Attribution: Meghna Bal, et al., Eds., Devising an Emerging Market Perspective for Competition Regulation in the Digital Age, November 2022, Observer Research Foundation and Esya Centre.

Market Study on Film Distribution Chain in India

Description: With Esya Centre as a Knowledge Partner, the Competition Commission of India (CCI) conducted a Market Study on Film Distribution Chain in India.

The purpose of the study was two-fold. One, to understand the state of competition in the film industry in view of the evolving industry dynamics related to digitization. And two, to identify issues related to competition that can be resolved or mitigated through self-corrective measures to limit the need for Commission’s interventions, with a view to encourage the production and dissemination of content and overall wellbeing of the stakeholders in the ecosystem and address bargaining power imbalances across the value-chain, if any.

The study employed a combination of desk research and primary research that included focus-group discussions, one-on-one meetings, post-discussion surveys, and written submissions of stakeholders. The study highlights some of the key competition issues in the film distribution chain in India, as identified by stakeholders. In doing so, the study discusses the role of various associations in the chain, be it at the production, distribution, or exhibition level; the superior bargaining power of some entities and the resultant imbalances; the bottlenecks that exist at various levels; unequal distribution of risks; revenue-sharing arrangements; new-age technologies in cinema; tying and bundling arrangements at the exhibition level, etc.

The study provided key insights into conceptual and analytical questions such as the relevant market, assessment of the bargaining power of industry constituents, and objective commercial justifications for certain conduct. Relying on the findings from this study and under its advocacy mandate, the Commission has recommended the film industry to devise certain self-regulatory measures for various categories of stakeholders.

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.

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.